DE BURGH and DE BURGH

[2020] FCWA 60

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DE BURGH and DE BURGH [2020] FCWA 60

CORAM: TYSON J

HEARD: 14 APRIL 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 1648 of 2015

BETWEEN: MS DE BURGH

Applicant

AND

MR DE BURGH

Respondent

Catchwords:

FAMILY LAW - Undefended parenting proceedings - Where mother's alcohol use and mental health pose a risk of harm - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Did not participate
Respondent	:	Ms Milton
Independent Children's Lawyer	:	Ms Baily

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Bannerman Solicitors
Independent Children's Lawyer	:	Baily Family Law

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

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 De Burgh & De Burgh has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 These proceedings concern [Child A] who is 12 years of age and [Child B] who is nine years of age. The children live with their father [Mr De Burgh]. They have not seen or communicated with their mother [Ms De Burgh] since late December 2019.

2 As a result of the mother’s repeated failure to comply with Court orders and to properly participate in these proceedings, the father was given leave to proceed on an undefended basis.

WHAT ARE THE ORDERS SOUGHT?

3 The children were represented by an Independent Children’s Lawyer, Ms Baily. She seeks orders in terms of her Minute filed 2 April 2020. She proposes the children live with the father and he have sole parental responsibility, with the children to spend time with their mother as determined by him. The children have telephone contact with their mother in accordance with their wishes. She seeks a number of mutual injunctions restraining both parents from denigrating the other parent, from discussing these proceedings and consuming alcohol prior to, and when the children are in their care. She seeks injunctions restraining the mother from attending the children’s school or the father’s home.

4 If the mother re-opens proceedings, the ICL proposes the mother produce evidence of her attendance at drug and alcohol counselling, a certificate of completion from an appropriate drug and alcohol detoxification program, a psychiatric assessment within the previous 12 months and a hair strand test indicating low to moderate use of alcohol and no illicit substances for the previous 6 months.

5 The father supports the orders proposed by the ICL.

WHAT ARE THE BACKGROUND FACTS?

6 The mother was born [in] 1974. She is 45 years of age. The father was born [in] 1975. He is 44 years of age. The parties commenced living together in 2000 and married [in] 2006. Child A was born [in] 2008. Child B was born [in] 2010.

7 During the marriage, the mother was the primary homemaker and parent, while the father worked and assisted in the children’s care when at home.

8 The parties’ relationship was conflictual, resulting in the police being called to the family home on a number of occasions:

(a)In [early] 2012 the parties argued. The father caught the mother’s [clothing], ripping it. The mother told police the rip was accidental and the father was not violent. The father reported the mother had been drinking, which was the cause of the argument.

(b)In [late] 2012 the police attended. The father had been out during the evening and on return, alleged the mother was intoxicated and passed out. The father was issued with a 24-hour police order.

(c)In [late] 2013 the police attended. Each parent alleged the other was intoxicated.

(d)In [mid] 2014 the police attended, following another argument. The father said the mother was intoxicated and they argued, as he did not want her to drive and collect Child A from school. The mother blew .02. The father removed himself and the mother’s mother agreed to remain in the family home, due to the mother’s state.

9 In [early] 2015 the parties separated on a final basis. After separation the children lived with the mother and spent time with the father, as agreed.

10 [Shortly after separation in] 2015 the mother fell asleep and failed to collect the children from school. The maternal grandmother collected the children, who were then placed into their father’s care. The father refused to return the children because of concerns about the mother’s mental health and alcohol consumption, which triggered the mother commencing proceedings.

11 Interim orders were made for the children to live with each parent, on the condition each parent resided with third parties and were restrained from consuming alcohol. The children lived with the father from Friday until Sunday in week one and on Monday until Tuesday in week two and alternating each week thereafter.

12 The Department for Child Protection (as it then was called) provided a memorandum to the Court confirming they had opened a file in April 2012 and received contact about domestic violence incidents on various dates.[1] The Department did not undertake an assessment.

[1] 17 April 2012, 3 December 2012 13 December 2013 24 June 2014 and 3 March 2015.

13 [In] April 2015 the police were called to the mother’s home. The father was concerned the mother was intoxicated while caring for the children and he attempted to remove her keys. The mother alleged the father assaulted her. The police sighted no injuries.

14 [Later in] April 2015 the parties attended a Case Assessment Conference with [a] Family Consultant. The father raised concerns about the mother’s mental health, due to her consuming alcohol and Valium. He questioned the mother’s honesty with [a mental health facility] where she attended [in] March 2015, and was assessed not to require admission. He also questioned her honesty with her treating psychologist, who wrote that the mother was experiencing normal levels of stress, associated with the marriage breakdown.

15 The mother denied suffering any mental health issues. She acknowledged being prescribed Diazepam and seeing her counsellor regularly. The father suggested the mother undergo an independent psychological evaluation, which the mother refused and accused the father of behaving in a controlling manner.

16 The father described the mother as a moderate to heavy drinker. By late 2014 he reported the mother was consuming one to two bottles of wine each day, including when caring for the children. He referred to returning home from work, to find the mother passed out and the children fending for themselves. He noted the mother had required medical attention for injuries suffered while under the influence of alcohol. The maternal family also raised concerns about the mother’s alcohol consumption.

17 The mother claimed she had not consumed any alcohol “in the last couple of months”. She accused the father of fabricating allegations to justify “why he stole the kids”. She alleged the father consumed alcohol on a regular basis, including to the point of passing out. She suggested the father may also consume illicit substances, but conceded she had no evidence to support that claim.

18 The father denied ever consuming alcohol while caring for the children.

19 Each parent accused the other of being the perpetrator of family violence, which they each denied. The father reported there had been frequent arguments, which related to the mother’s alcohol consumption. He reported the mother was aggressive when intoxicated, and on occasions needed to restrain her, in self-defence. He had been forced to remove the mother’s car keys, to prevent her driving when under the influence.

20 The father told the Consultant the mother loved the boys and described her as a fantastic mother, when she was sober. The mother was less complimentary of the father’s parenting. The mother then sought to reduce the children’s time with the father, which the Consultant did not consider was in their best interests. The Consultant did not perceive the children were at risk in their father’s care.

21 The Consultant recommended each parent complete Mums and Dads Forever, the children complete Supporting Children after Separation and each parent engage in individual counselling. The father completed Mums and Dads Forever. The mother did not.

22 In June 2015 the orders were varied to extend the time the children spent with the father from Friday to Sunday in week one and from Sunday until Tuesday in week two. Orders were then made by consent [in] October 2015, dismissing the proceedings. The father says the children spent significantly greater time with him, than what the orders provided.[2]

[2] Between July and December 2015 he estimates the children were in his care for approximately 68 nights and between January to August 2016 the children were with him for approximately 119 nights.

23 [In early] 2016 the children’s teacher considered the mother was unfit to drive, and drove the children home. A meeting was subsequently convened with the school principal and counsellor, to formulate a safety plan in the event a similar situation arose. [Several days later] the mother informed the school the children would not be attending. The father spoke to the mother who was slurring her words. He attended her home. The children said they had been unable to wake their mother. The father called an ambulance, who observed the mother smelt strongly of alcohol.

24 In March 2016 the school principal contacted the father raising concerns about the mother’s presentation the previous day. [Later that month] the children failed to attend school. The father again attended the mother’s home and was unable to rouse her, resulting in him calling an ambulance. When the mother awoke she became aggressive and threatened to punch the father in the face. The police were called. The father left with the children.

25 The mother commenced further proceedings in 2016. In March 2016 orders were made restraining the mother from consuming any alcohol and requiring her to undergo random drug urine analysis testing.

26 [In] September 2016 the parties attended a Child Dispute Conference with the Family Consultant. The father reported the children felt insecure because of the frequent disruptions in their mother’s care. He considered the children required counselling, which the mother had opposed, despite the Consultant’s previous recommendations.

27 The Consultant said the mother appeared agitated and her reasoning was difficult to follow. The mother became increasingly angry towards the father during the Conference. The mother said she wanted full custody of the children.

28 The mother denied her alcohol consumption presented any risk and denied the children had ever been harmed in her care. The Consultant raised with the mother independent evidence of her difficulties with alcohol, including:

(a)Ambulance officers and police observing the mother intoxicated;

(b)Hospital records demonstrating the mother’s unsuccessful attempts to cease using alcohol several times;

(c)Ambulance officers being called to the mother’s home, when she has not been responsive to the children; and

(d)The children’s school raising concerns about her presentation and implementing a safety plan.

29 The mother blamed the father, became increasingly angry and abusive, including shouting at him. The Consultant stood between the parties, concerned the mother was going to strike the father. The mother was asked to leave.

30 The Consultant recommended the children receive therapeutic support and considered the mother would benefit from attending a residential alcohol rehabilitation service.

31 Following the Conference, there were ongoing concerns about the children’s safety in their mother’s care. They included the mother being hospitalised, the school preventing the mother from driving and the mother then failing to facilitate the children’s attendance at school.

32 The father sought a recovery order, which was granted on 2 September 2016. Interim orders were made suspending all previous orders, and providing the children to live with the father and the mother was restrained from removing the children from his care or their school.

33 Interim orders were made for the children to have telephone contact with the mother, and to spend time with her in the presence of a nanny, at the father’s cost.

34 In October 2016 those orders were varied to provide the mother continue to spend time with the children each Sunday from 9am to 4pm, supervised by a nanny, with the father to pay $150 towards the nanny and the mother to meet the balance of the costs.

35 Difficulties arose in relation to the children’s supervised time with their mother. For example:

(a)[In] April 2017, the mother refused to allow the children and the nanny to leave. The nanny reported the mother repeatedly threatened to stab the father, in the presence of the children. The police were called. The mother told the police she would kill the father. The mother later denied threatening to stab or kill the father and claimed to have said “you’re going to die – as in jail”;

(b)On Easter Sunday, April 2017 the father was due to collect the children from the mother. She refused to allow the children to leave, until he paid her $720. The children said the visit had not been supervised the entire time.

36 Following these incidents, the previous interim orders were discharged. Further interim orders were made for the mother’s time to be supervised by a professional agency.

37 The children attended supervised visits between late May and mid-June 2017 with their mother, supervised by [Supervision Agency A]. The supervisors described the mother appearing disorientated, being unsteady on her feet with glazed eyes and the mother being absent for up to 25 minutes during the visits. The supervisors terminated one visit early, when the mother was found to be drinking wine and fell asleep.

38 Following publication of the supervision report, the mother refused to spend time with the children through Supervision Agency A. Supervised visits were then cancelled. The father facilitated ongoing visits supervised by a nanny or himself, in public locations.

39 The children have enjoyed spending time with their mother, however there have been ongoing difficulties. For example:

(a)[In early] 2018 a visit was arranged at the movies. The mother arrived an hour and half late, slurring her words and then left without saying goodbye. The children were upset.

(b)In [mid] 2018 the mother misunderstood a comment made by the children. The mother became upset, accusing the father of telling the children she was a murderer and then left.

(c)[Later in] 2018 dinner was arranged. The father paid for the mother’s taxi fares. The mother arrived an hour late, slurring her words, and unsteady on her feet. The children became distressed and quiet.

(d)[Three weeks later] the mother failed to attend a visit arranged at a park for Child B’s birthday.

40 [On two occasions in early] 2019 the mother attended the father’s home, demanding to see the children. The father arranged to meet her with the children in a park. On the second occasion, the mother threatened the father and his partner, and attempted to enter his home.

41 [A week later] the father obtained an interim Family Violence Restraining Order for his protection against the mother. The mother objected to the VRO, which was listed for a final hearing in April 2020. It has since been made final, as the mother failed to attend the hearing.

42 In [mid] 2019 the mother sent multiple threatening messages to the father. The messages included:

“be warned- there are people coming after you and her as a result now…”

“Get her the fuck immediately away from you and my children or she will pay for it! She has been warned - and you are next in line”

“I know where she works, where she lives, where you work, where you live…”

“Life is short, esp when you mess with a mother of children taken from them…do t underestimate me and what I can and will do”.

43 The mother was charged with breaching the VRO. She subsequently obtained an ex parte interim VRO for her protection. The father objected to the VRO, which has since been cancelled.

44 [Later in] 2019 the father was arrested and questioned by police, following him serving documents on the mother by way of email, pursuant to orders made by this Court. He was released without charge.

45 The father has facilitated further visits supervised by a nanny in 2019. There have been ongoing issues including the mother being unsteady on her feet, falling asleep, failing to answer the door for arranged visits and her appearing intoxicated.

46 Interim orders were made on 29 November 2019, to allow the father to enrol Child A to attend [High School A], over the mother’s objection. Further orders were made restraining the mother from communicating with that school or preventing Child A’s enrolment.

47 The children last spent time with the mother on [two occasions in] December 2019, supervised by the nanny. The mother told the children that the father was doing something horrible and was attempting to send her to jail.

48 [In] January 2020, upon the application of the ICL, orders were made for the mother to attend upon Dr [G] for a psychiatric assessment, funded by Legal Aid. On 24 January 2020 further orders were made extending the time in which the mother was to file and serve her trial material. She was also ordered to attend on Dr G on 17 February 2020. If the mother failed to file her trial material, then her Form 1 was referred to the presiding Magistrate in chambers to be dismissed.

49 In February 2020 the boys sent their mother an email. She did not respond.

50 On 6 March 2020 the mother’s Form 1 was dismissed. The mother did not attend on Dr G and told the ICL she did not intend to do so. The mother failed to file and serve any trial material, despite multiple extensions of time being granted. The mother failed to attend multiple court hearings including the trial and to properly participate.

51 [In] March 2020 the mother sent the father a text message which read:

…I am about to end my life. Because of what you’ve done to me. Please apologise to [Child A] I will not see him on his birthday. Nor [Child B]. I am so saddened by what you have done to destroy me and our children. You will never find me. I am gone. I am lost as a former mother and cannot rebuild my life on my own with all the hate you’ve been throwing against me. Both boys know and they hate you for it as well but please don’t take it out on them I have already informed authorities of your violence! You are to blame. And everyone knows

52 The father contacted Lifeline. He also spoke with the nanny, who advised she had received a similar message and had contacted the mother’s partner, who was speaking with the mother.

53 Child A rang his mother, on his birthday and left a message. She did not reply or return his call.

WHAT IS THE EVIDENCE RELIED UPON?

54 The father relies upon his affidavits filed 15 October 2018, 8 January 2019 and 26 March 2019. He gave some brief updating oral evidence. The ICL relies on her affidavit filed 2 April 2020. Both the ICL and the father rely on the two reports of the Single Expert Witness [Ms M] filed 30 August 2018 and 17 October 2019, together with the Case Assessment Conference Memorandum dated 30 April 2015 and the Child Dispute Conference dated 12 September 2016.

55 The ICL did not require the father for cross-examination. Accordingly I accept his unchallenged evidence.

SINGLE EXPERT WITNESS

56 Ms M was appointed as the Single Expert Witness pursuant to orders made by consent on 16 May 2017. She is a clinical and forensic psychologist, as well as a family therapist and counsellor.

57 Ms M’s first report was dated 24 August 2018. She interviewed each parent and observed the children with each parent. At the time, the father was employed and living alone with the children. The mother was not working and was in receipt of Centrelink benefits.

58 Ms M described the mother as friendly but presenting as confused. She described the father as reserved, cooperative, and concerned about the children’s welfare in their mother’s care. The children had limited telephone contact at that time with their mother, as she often did not respond to their calls. Supervised visits had ceased and the children had not seen their mother for some six months. Each child expressed sadness and distress at the lack of contact with their mother.

59 Ms M had access to subpoenaed documents and observed:

(a)The police records confirmed the mother had been charged with driving while under the influence of alcohol and careless driving.

(b)The mother’s medical records indicated she had possibly been diagnosed with alcohol dependence in 2015, at which time she was reportedly consuming two bottles of wine per day and had done so for the previous two years. In that year she was admitted to hospital with a blood alcohol level of 0.4. In 2015 the mother had multiple presentations to hospital relating to alcohol withdrawal, liver problems, anxiety and alcoholic binges.

(c)In 2016 the mother had been admitted to hospital on three occasions for alcohol dependence, anxiety and stress. The mother presented as intoxicated on admission. The hospital recorded the mother disclosed drinking up to two bottles of wine each day.

(d)In August 2016 it was reported the mother had a new partner who was an alcoholic, who had encouraged her to resume drinking. They had recently separated and the mother wanted to resume Diazepam, to stop drinking.

(e)In April 2017 the mother attended hospital and was diagnosed with alcohol dependence and was prescribed Valium.

(f)In February 2017 the mother was involved in a car accident. She stated she was attempting to avoid alcohol through using Diazepam. The mother was advised to decrease her dosage.

60 The father told Ms M he thought in the long-term, a shared care arrangement would be appropriate, if the mother’s use of alcohol and medication was adequately addressed. The mother told Ms M she considered the children should live primarily with her.

61 Ms M found the father’s concerns about the mother’s alcohol dependence and risk-taking behaviour were corroborated by the reports of independent third parties. The mother maintained her denial of any difficulties. She denied the children were at risk in her care. The Expert considered the mother lacked both insight and honesty about her difficulties.

62 The Expert did not consider the father presented with difficulties around alcohol use, but in light of the history, suggested the father attend [Counselling Service A] for an assessment. The Expert recommended the mother complete a residential rehabilitation program to manage her alcohol use, attend [Counselling Service B] for assessment as to her suitability for a family violence program and attend upon a psychiatrist to assess her mental health and provide recommendations as to treatment. The Expert recommended the children continue to live with the father and spend supervised time with the mother, and the children receive counselling.

63 Ms M prepared an updated report dated 16 October 2019. She again met with each parent and the children. She did not observe the children with either parent.

64 The mother provided to the Expert correspondence from [a mental health facility] dated March 2015 which stated they did not assess any mental health concerns for the mother. She also provided a letter from Dr [L] which recorded the mother’s prescribed medication did not impact on her parenting capacity.

65 The mother described the father as incompetent and claimed he was failing to properly care for the children. Ms M considered the mother completely disregarded and dismissed the father’s role as a parent and noted neither child raised concerns with their father’s parenting.

66 The mother maintained her denial in terms of her alcohol use or mental health. Ms M observed the lack of information about the mother’s mental health, alcohol use and use of prescription medication since her previous report. She did not consider the parents were able to communicate and work together in the best interests of the children, given the history chronicled in the proceedings.

67 Ms M recommended the children remain living with their father and spend supervised time with their mother. She repeated her previous recommendations that the mother complete a psychiatric assessment, undertake a residential rehabilitation program to address her use of alcohol and prescription drugs.

WHAT IS THE APPLICABLE LAW?

68 These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

69 The objects 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.

70 In 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 primary and additional considerations.

71 Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

72 Section 60CC(2A) provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm.

PRIMARY CONSIDERATIONS

The benefit to the child of having a meaningful relationship with both of the child's parents

73 The children have a meaningful relationship with both of their parents. Those relationships are to their benefit, subject to the need to protect them from harm.

74 I am satisfied the children love their mother and want to spend regular time and communicate with her. They have clearly articulated those views to the Expert. Despite the limited time they have spent with their mother in recent years, I consider they continue to have a meaningful relationship.

75 I am similarly satisfied the children love their father and share a meaningful relationship.

The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

76 The unchallenged evidence supports a finding that the children are at risk of harm in their mother’s care as a consequence of her health, her alcohol consumption and her use of prescription medication. That finding is supported by:

Firstly, the views of the Family Consultant in 2016, who found the mother to minimise and deny the effects of her alcohol use on the children’s safety. The Consultant observed the reports from independent third parties suggested the mother had not complied with the injunction not to consume alcohol prior to or when the children were in her care. The Consultant found the mother unwilling or unable to take responsibility for her actions and her ongoing denial, inhibited her ability to obtain the assistance she required.

Secondly, the evidence of the Expert, Ms M, that the children remain at risk of harm until such time as the mother has successfully addressed her use of alcohol and prescription medication, together with her health.

Thirdly, the children’s comments to the Expert and the father which corroborate they have been exposed to harm in their mother’s care, including her threatening the father, her consuming alcohol in their presence, her denigrating the father, amongst other matters.

Fourthly, the most recent [hospital] records reveal the mother has been admitted to hospital on an emergency basis, due to intoxication. That includes admissions on [eight occasions in 2019]. On many dates the mother has been admitted to hospital by ambulance, following drinking in a shopping centre and being restrained by security guards for behaving in an aggressive manner.

Fifthly, the hospital and police records suggest the mother’s relationship with her partner, is conflictual and violent. The police have been required to remove the mother from his home. [Her partner] told police in May 2019 he did not want the mother charged, but simply wanted her removed. He said the mother had a drinking problem.

77 The children are at risk of harm and neglect from their mother.

78Her alcohol consumption poses an ongoing risk of harm and neglect. As a result of the mother’s ongoing denials of difficulties with her health and alcohol use, she has failed to adequately take steps to address these matters. The mother’s difficulties with alcohol use are long standing and have continued over a significant period of time. The police, ambulance and hospital reports support a finding that the mother has struggled with alcohol for many years, which persists.

79It would appear the mother has experienced poor mental health and ability to regulate her emotions. I accept the mother likely struggled following the children’s removal from her care. The mother has not taken steps to manage her mental health. She has refused to attend upon a psychiatrist for assessment and treatment despite the costs being met by Legal Aid.

80There is no evidence from any treating medical practitioner as to the mother’s current state of health. It is unclear the extent to which the mother continues to be prescribed medication and the impact, if any, of her alcohol consumption on her health.

81I accept the Expert’s evidence that the mother’s capacity to meet the children’s needs is currently compromised, which places both children at risk of harm.

82 I am not satisfied the children are at risk in the care of their father. He has been the children’s primary carer for over three years. Apart from the mother’s allegations, there is no cogent evidence to support a finding that they are at risk of harm. Neither child raised any concerns with the Expert about their father’s care. The Expert says and I accept, the children are safe in his care.

ADDITIONAL CONSIDERATIONS

Any view 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

83 In 2018 Child A was 10 and Child B was eight years old. Ms M then described Child A as having average maturity and described Child B as a quiet, withdrawn child, who was presenting with some behavioural issues. Both boys expressed a desire to then live with their maternal grandmother, but appeared to accept she could not accommodate them. Child A told the Expert he would like to live with his father. Child B told the Expert if he had a choice between his parents, he would choose “dad because he doesn’t get drunk”. Both children expressed a desire to see their mother more frequently.

84 In the updated report, Ms M described both boys having an age appropriate level of development and maturity. Neither Child A nor Child B expressed a desire to change their living arrangements. Both boys indicated they wished to spend regular time with their mother and missed her.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

85 The father has attempted to facilitate the children’s relationship with their mother, in difficult circumstances given the mother’s conduct. The mother has not complied with orders for supervised time. She has not always made herself available to spend time or communicate with the children. The father’s statements to the Expert and evidence confirm he remains supportive of the children’s relationship with their mother, provided they are safe from harm. The father has met significant costs associated with supervision.

86 The mother blames the father for her current circumstances. The mother has sent messages to the father, which include claims that he is not the children’s real father and if the children lived with her, they would have no relationship with him. She has called him names, denigrated and threatened him. She has told the children their father is trying to send her to prison. I have no confidence the mother is presently able to support the children’s relationship with their father.

The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children).

87 I have already considered this factor insofar as the parents are concerned.

88 The children have enjoyed a close relationship with their maternal grandparents, which the father has facilitated since the children have lived with him and for which he should be commended. He has also maintained the children’s contact with other members of the extended maternal and paternal family.

89 The father says the children enjoy a close relationship with his partner, whom he has been in a relationship since late 2018. That is echoed by the children’s positive reports about [his partner] to Ms M.

The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children.

90 The father has made major long-term decisions about the children, since they have lived with him. He has maintained both children.

91 The mother has failed to participate in making decisions about the children and to communicate with the father in a child-focused manner. There is a chronology of incidents in which the parties have been unable to reach agreement about the children. For example, the mother refused to allow the boys to attend counselling. She cancelled Child A’s interviews for high school and sought to obstruct his enrolment. She opposed the children travelling interstate with the father. The parties have not agreed over the boys’ dental treatment. At times, these issues have led to litigation and required the father to obtain orders from the Court.

The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.

92 The father supports the children and maintains them financially. The mother does not pay child support.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the children) with whom he or she has been living.

93 The children have lived with the father since 2016. Since that time they have enjoyed a stable and secure home life. The Expert observed the father and the children had a good relationship and considered the children would not cope being separated from him. I accept that to remove the children from their father’s care would cause significant disruption and instability, which is not in their best interests.

94 To place the children in the mother’s care would be detrimental, in these circumstances. I consider both children are at risk of abuse and neglect in the mother’s care, for the reasons already articulated.

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

95 There is practical difficulty and expense having regard to the cost of supervision. To date, the father has shouldered most of those costs. The father continues to live in [Suburb A] in rental accommodation. The mother’s current living circumstances are not clear.

The capacity of each of the parents and any other person to provide for the needs of the children, including emotional and intellectual needs.

96 The father has been caring for the children since 2016. Ms M considered the father was able to meet the children’s needs and was well-supported by his partner. He has demonstrated a willingness to seek out assistance and follow recommendations of the Expert, such as completing courses and attending [counselling].

97 There is no evidence to suggest the father is abusing alcohol. He has agreed to orders on a without admission basis not to consume alcohol, prior to or when the children are in his care.

98 The Expert stated in both reports that until the mother addressed her mental health and alcohol use, that she was unable to provide for the children’s needs. I agree. Ms M suggested once the mother had completed treatment for her alcohol misuse and undertaken a psychiatric assessment, then these matters could be revisited. I accept those recommendations.

99 I accept the mother loves the boys. If the mother was able to stabilise her mental health and maintain sobriety, she would clearly have much to offer as a parent. Unfortunately the mother has failed to do so. On that basis, I cannot be satisfied that the mother currently has the capacity to care for the children. Sadly, the evidence suggests the mother is struggling to care for herself.

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

100 Child A is 12 years of age. He is in year 7 at [High School A], where he is part of [an artistic program]. Child B is 9 years of age. He is in year four at [Primary School A], where he is part of [an] extension program.

101 Both boys are doing well at school. Child A’s 2019 school report described him as “an amazing student and person” and a “kind, patient, hard-working young man who should be extremely proud of his achievements”. Child B was described as a happy class member, who was enthusiastic to learn and who had “both entertained and educated” the class with his news throughout 2019.

If the child is an Aboriginal or Torres Strait Islander the child’s right to enjoy his culture and the likely impact of any proposed parenting order will have on that right.

102 Not applicable.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents.

103 The father has demonstrated an appropriate attitude towards the responsibilities of parenthood. He has continued to care for the children in some very difficult circumstances. He has supported and promoted the children’s relationship with their mother, as demonstrated through the meaningful relationship they continue to enjoy.

104 The mother has not demonstrated an appropriate attitude. The mother has denigrated the father to and in the presence of the children. She does not respect the father and she objects to the children remaining in his care. The mother has not complied with orders of the Court.

Any family violence involving the children or a member of the children’s family.

105 I refer above to my findings in this respect. There has been family violence involving the parties, which Child A and Child B have been exposed. The children have experienced their mother being intoxicated and behaving in an abusive and aggressive manner. That has included hearing her make threats against their father. They have been present when the police have been called.

106 Child B told Ms M that his parents did not get along “because dad tries to be nice to mum and mum keeps saying he will go to court and go to gaol”.

107 In March 2019 the mother attended the father’s home, making threats against him and his partner, while the children were present. The mother was charged with breach of the VRO. The father has a VRO for his protection against the mother, for a two year period, granted [in] April 2020.

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

108 The ICL and the father each seek final orders. The proceedings have been on foot since 2015. It is in the children’s best interests that any uncertainty about their future living arrangements is determined. I am satisfied the orders I propose to make are in the children’s best interests.

Any other fact or circumstance that the court thinks is relevant

CONCLUSIONS

109 Having considered all of the evidence in the context of the primary and additional considerations I have come to the following conclusions.

110 There has been family violence between the parties. The presumption that it is in the best interests of Child A and Child B for their parents have equal shared parental responsibility for them does not apply. In any event, it is clear that the parents could not consult as to major long-term issues regarding the children and make a genuine effort to come to a joint decision.

111 On the basis I consider it is in the boys’ best interests to remain living with their father, I will order that he have sole parental responsibility. It is important that he is able to make decisions for the boys, to ensure that their needs are met. I am satisfied he will make appropriate decisions, given his conduct to date.

112 I am satisfied Child A and Child B are safe and secure with their father, who is appropriately attending to their needs. I am satisfied the father will facilitate the children’s relationship with their mother, on terms that ensures the children are safe, in light of his conduct. The father can be trusted to make these decisions.

113 I consider that the children’s time with their mother needs to be supervised, to ensure the children are protected from harm. I consider the injunctions proposed are in the children’s best interests and reasonably practicable.

114 Should the mother comply with those arrangements, then she will be able to maintain her relationship with the children. Both boys clearly love their mother. They want to see and spend time with her.

115 The evidence of Ms M make it plain that the mother would benefit from psychiatric assessment, to complete a residential rehabilitation program and maintain sobriety. It would benefit the children, if their mother was able to maintain an alcohol free lifestyle and ensure her mental health was well managed. Until such time as the mother accepts and addresses her difficulties, the children are at risk of harm in her care.

116 The ICL sought an order that if the mother sought to re-open, she be required to provide evidence of her attendance to these matters. As I observed, I well understand the reasons for those proposals, given the risk issues. However, I am not prepared, at this time, to effectively injunct the mother from returning to the Court until she has done so.

117 It is up to the mother to acknowledge her difficulties, seek treatment and satisfy the father and/or the Court, that she no longer poses a risk of harm or neglect to the children. In the future, as the children become older and more mature, their circumstances may change.

118 If the mother seeks further parenting orders, then the parties will be required to attend family dispute resolution. As part of any such mediation, the father will undoubtedly seek evidence as to the steps the mother has taken to manage the risks I have identified. The mother will need to demonstrate a significant change in her circumstances, including having taken steps to address the risk issues which have been clearly identified.

119 These are matters within the mother’s remit. I will not order her to do so as I have no confidence that she will do so, given her conduct to date. However, I propose, subject to hearing from the parties’, to give the mother leave to provide these reasons, the reports of Ms M and these orders to her psychiatrist or mental health practitioner.

THE PROPOSED ORDERS

PROPOSED ORDERS

1.That all previous parenting orders be discharged.

Parental Responsibility/Lives With

2.The children, [CHILD A] born [in] 2008 and [CHILD B] born on [in] 2010 (together, “the children”), live with the Respondent, [MR DE BURGH].

3.The Respondent have sole parental responsibility for the children.

4.The Applicant, [MS DE BURGH], spend time with the children as agreed between the parties in writing and by email only, and upon conditions as deemed appropriate by the Respondent, from time to time.

Handover

5.For the purposes of handover, the Respondent will nominate a location and advise the Applicant in writing no less than 24 hours prior to handover.

Telephone Contact

6.The children have telephone contact with the Applicant in accordance with their wishes, and the Respondent will do all acts and things to facilitate such contact.

Passports

7.The Respondent have liberty to remove the children from the Commonwealth of Australia for the purpose of a holiday to and to that end, the necessity for the consent of the Applicant to the issue of a passport to the said children be dispensed with.

8.To facilitate the orders made herein, the necessity for the consent of the Applicant to the issue of a passport to the said children be dispensed with.

9.Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the said children to enable them to leave the Commonwealth of Australia for the purpose of holidays.

10.The costs associated with the issue of a passport for the children referred to in the preceding orders herein be met by the Respondent.

Injunctions

11.That on a without admission basis, the parties be restrained by injunction and an injunction granted restraining them from:

(a)impeding, deterring or preventing the children from freely taking any personal items, clothing or toys to the other parties' home as they may choose from time to time;

(b)allowing the children to read any documents or correspondence associated with their care arrangements, including these orders and any Family Court documents;

(c)denigrating, criticising or belittling the other party or any partner or extended family members, in the presence or hearing of the children or permitting or allowing any other person to do so;

(d)denigrating, criticising or belittling the other party or partner on any social media platform;

(e)consuming alcohol to excess whilst the children are in their care, or 24 hours prior to the children being in their care pursuant to the arrangements contained in these orders;

(f)allowing any third party to consume alcohol to excess in the presence or proximity of the children whilst the children are in their care; and

(g)removing the children from the care of the party that has care of the children pursuant to these orders, including removing the children or causing the children to be removed from their schools, day care facilities or the care of any other third party authorised to supervise the children.

12.On a without admission basis, the Applicant be restrained by injunction and an injunction granted restraining the Applicant from:

(a)attending at the children’s school without the prior written consent of the Respondent or order of the Court;

(b)attending upon the Respondent’s place of residence or within 10 metres of the external boundary without his prior written consent or order of the Court.

13.This is an order to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties [in] April 2020 in the [Magistrates Court], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

14.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.

15.The Applicant has leave to provide to her psychiatrist or mental health practitioner, these Reasons and Orders and the reports of the Single Expert Witness [Ms M] dated 24 August 2018 and 16 October 2019.

16.In the event of any future parenting dispute, the Applicant and the Respondent do all things necessary to facilitate their attendance at a Family Dispute Resolution Service (“the Provider”), if considered suitable by the Provider and file a certificate pursuant to section 60I of the Family Law Act 1975 (Cth) prior to any application being filed with the Court.

17.Each party has leave to provide the Provider with a copy of the Reasons given today together with a copy of this Order.

OTHER

18.Subject to the institution of an appeal by any party or the Independent Children’s Lawyer, the Independent Children’s Lawyer be discharged.

19.All subpoenaed documents be returned to source.

20.The said proceedings shall otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

14 APRIL 2020