Arata & Rex (No 3)
[2024] FedCFamC1F 583
•30 August 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Arata & Rex (No 3) [2024] FedCFamC1F 583
File number(s): LEC 250 of 2021 Judgment of: HOGAN J Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – INTERIM PARENTING – Where interim parenting orders are sought by the father that the child live with him and spend supervised time with the mother – Where the mother sought that the child live with her and spend supervised time with the father – Where the Independent Children’s Lawyer supported the father’s proposal – Where the adult child poses a potential risk to the child the subject of the proceedings – Where final judgment delivery is listed for delivery in four weeks – Where it is ordered that the child live with the father and communicate with the mother by telephone until final orders are delivered Legislation: Family Law Act 1975 (Cth) Cases cited: Banks& Banks (2015) FLC 93-637; [2015] FamCAFC 36 Division: First Instance Number of paragraphs: 23 Date of hearing: 23 August 2024 Place: Brisbane Solicitor for the Applicant: Ms Burgess, Burgess Family Law Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Burton, Legal Aid NSW ORDERS
LEC 250 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARATA
Applicant
AND: MS REX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
30 AUGUST 2024
IT IS ORDERED UNTIL FURTEHR ORDER THAT:
1.The child X (also known as Y), born in 2014, have telephone or video communication with the mother at all times as may be agreed between the parents in writing but, failing agreement, as follows:
(a)at 4.00 pm on 31 August 2024; and
(b)at 4.00 pm on 3 September 2024; and
(c)at 4.00 pm on 6 September 2024; and
(d)at 4.00 pm on 9 September 2024; and
(e)at 4.00 pm on 12 September 2024; and
(f)at 4.00 pm on 15 September 2024; and
(g)at 4.00 pm on 18 September 2024; and
(h)at 4.00 pm on 21 September 2024; and
(i)at 4.00 pm on 24 September 2024,
with the father to initiate the communication and the mother to be available to receive such communication, or on such other occasions as may be agreed between the parents in writing.
THE COURT OTHERWISE ORDERS THAT:
2.The Application in a Proceedings sealed 20 August 2024 is dismissed.
3.The Response to Application in a Proceedings sealed 21 August 2024 is dismissed.
AND IT IS ORDERED THAT:
4.Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arata & Rex has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These parents participated in a trial in relation to final parenting orders for their youngest child, Y,[1] born in 2014, and final property settlement orders between 8 and 12 April 2024.
[1]At least at one time, Y was known by both parents as X. In the most recent material filed by both parents in this matter, they have adopted the name Y – for consistency, I have also chosen to do so.
On the final day of the hearing, the decisions about those matters were reserved.
At that time, the operative interim parenting orders, made on 9 June 2022 and on 12 October 2023 respectively, provided for Y to live with the mother and to spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Tuesday. The orders made on 12 October 2023 also provided that Y spend half of the school holidays with the father.
On 6 August 2024, the mother applied for a Recovery Order.[2]
[2] Application in a Proceeding filed 6 August 2024 and sealed 7 August 2024.
Such application was listed with urgency.
When the parties appeared before me on 9 August 2024, it was clear that her application was made in circumstances where the father had retained Y in his care because of his concerns about the potential risk to him which his 18-year older brother (Mr F) may pose following his discharge into the mother’s care from the Town G Hospital.
Given the dearth of evidence about Mr F’s current mental health functioning at that time, I made orders in terms which, amongst other things:
(a)dismissed the mother’s application for a Recovery Order; and
(b)listed the matter for further interim hearing on 23 August 2024; and
(c)stayed the operation of paragraphs 2 and 3 of the June 2022 interim parenting order and paragraph 1(b)(iii) of the October 2023 interim parenting order; and
(d)provided for Y to live with the father and to have telephone or video communication with the mother on five specified occasions;[3] and
(e)granted the Independent Children's Lawyer leave to issue subpoena directed to the New South Wales Police Service, the Town H Hospital and Town G Hospital.
[3] Namely, on each of 9, 13, 15, 19 and 22 August 2024.
When the parents and the Independent Children's Lawyer appeared on 23 August 2024, I advised them that final orders would be made in the matter on 26 September 2024. Given this, the issue to be determined now is the terms of the parenting order which is in Y’s best interests until then.
The competing proposals
The father ultimately proposed that orders be made for Y to live with him and spend weekly supervised time with the mother; the mother proposed that orders be made for Y to live with her and spend weekly supervised time with the father; the Independent Children's Lawyer supported the father’s proposal.
In the event that his primary proposal was not found to be in Y’s best interests for the next three and a half weeks, the father proposed that the child spend unsupervised time with the mother each Tuesday and Thursday after school and for four hours each alternate Sunday, provided that the mother was restrained by injunction from bringing him into contact with Mr F and from taking him to any property where Mr F resides.
Discussion
As noted in Banks,[4] it is unnecessary for each of the relevant statutory considerations[5] to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in Y’s best interests pending the making of final orders on 26 September 2024; I have considered all of the relevant matters discussed by the parents in their respective affidavits and have had regard to all of the submissions made to me.
[4] (2015) FLC 93-637.
[5] Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CG(1)(b).
Unfortunately, Mr F has been hospitalised with mental health issues on a number of occasions since 2023. The most recent admission began in mid-2024 and ended when he was discharged in the following months. During this admission he absconded twice – the first time during his transfer between facilities and the second time when permitted to leave the hospital for a period of day leave. On the first occasion he was absent for a few hours before being found; on the second occasion he was absent for a number of nights before being located and returned to the unit.
Correspondence authored by Dr J, a medical professional who saw Mr F in 2024 informs, in essence, that:
(a)Mr F is currently on a Community Treatment Order which involves him receiving prescribed medication and participating in community management, with the expectation that he sees his case manager on a fortnightly basis; and
(b)since 2023, Mr F had repeatedly presented with symptoms of a mental health condition – he was markedly paranoid, thought disordered and insightless; and
(c)Mr F’s alleged drug use and his poor compliance with treatment were certainly major factors in the onset and maintenance of his mental health condition, during which he had been volatile and aggressive at times; and
(d)Mr F appeared to be responding well to treatment – he was far more settled and relaxed and reported that he was sleeping and eating well, able to study, was not using drugs: he was slightly sedated by his prescribed medication; and
(e)Mr F was no longer overtly paranoid, had some insight into his previous illness and associated behaviours; and
(f)the mother had reported that Mr F was more settled, and she felt that the “nightmare” of the previous 12 months was behind them; and
(g)the Community Treatment Order would expire in 2024 and there would be a further psychiatric review in four weeks (that is, around late 2024).
The mother’s evidence included that Mr F’s diagnosis had changed to a different mental health condition and that he was due to receive his prescribed medication. She said his Case Manager and a nurse had visited him at her property in mid-2024 to see how he was. Her position was, in essence, that he was now respectful in his behaviour toward her. As I appreciated it, she appeared to regard his issues as significantly related to his use of illicit substances and that, given he has told her that he no longer wishes to use such substances, he has returned to “normal”.
An appreciation of the impact of Mr F’s mental health issues on his behaviour and the impact of his behaviours on others can be gained by noting that:
(a)the mother’s evidence included that:
(i)Mr F had behaved aggressively and in an unstable manner in late 2023; and
(ii)in about early 2024, she believed Mr F when he verbally threatened her – she contacted the police, who attended, and he was arrested and an interim Apprehended Violence Order was obtained to protect her.
(b)the father’s evidence included, in essence, that:
(i)in 2023, police and an ambulance had attended his home in the middle of the night after Mr F attended there in a mentally dysregulated state; and
(ii)shortly before Mr F’s most recent hospitalisation, when approached in the street, Mr F told him that he would “attack” him if he came any closer; and
(iii)when located immediately before his most recent involuntary admission to a mental health unit in 2024, Mr F had been aggressive and violent to police; and
(iv)during text communication with Mr F in 2024, Mr F told him that:
(A)the mother was being “used as a tool”; and
(B)he had been used for espionage in Country K[6] and it started with their bloodline; and
[6] Where he had previously travelled alone.
(C)“they” play with a “sinking pain” in his heart whenever he said anything to anyone about anything and it got to the point where he was convinced that he had just had a heart attack; and
(D)the person accused of sexually abusing him was “commanding my mental health degradation shit from his prison by having papers brought in by his associates”; and
(E)that person had “threatened to traffic me and when I escaped from the trafficking attempt which was coordinated by [a criminal syndicate] I went to the police who had their jobs held against them to send me straight to the mental ward and they injected me with rna shit that makes it so people get a inverse version of whatever I try to convey to them in any format”; and
(F)“the telepathy encompasses the whole world”; and
(G)he could not stand being around the mother – although he also said that he just wanted to go home to her place, but she was pushing for rehab which was meant to drag out his “easily disprovable supposed mental health conditions”; and
(v)in mid-2024, the mother sent him, via text, a document which contained photos and movies showing Mr F acting in an aggressive and intimidating way toward her at her home (including repeatedly telling her to give him an illicit substance) and threatening self-harm; and
(vi)when he spoke with Mr F in mid-2024, Mr F talked about everything being “scripted” and the father being controlled by “them”; he also spoke about having repeatedly thought about suicide whilst in the mental health unit and said, during their discussion about him attending drug rehabilitation, that he would be killed in rehab; and
(vii)when Mr F called him in 2024 after being released from the mental health unit, he spoke in an aggressive and intimidating tone and was very confrontational and “antagonised” and said that he (the father) was going to be arrested and would be going down and to jail and said “you are scripted”; “you sound scripted. They gave you a script. You are programmed”; and
(viii)when he told Y that he was going to remain with him for a few extra days until Mr F settled back in with the mother, Y told him that this was good and that it was bad that Mr F was “coming back home because he will do drugs again and he’s not nice when he does drugs”.
I think it clear from the above that Mr F’s recovery is very much in its early days and that Y thinks that he is not nice when he uses drugs. What is less clear at this point in time is whether Mr F will repeat what has previously happened when he has been released from a mental health facility – namely, he resumes using illicit substances, which cause his mental health and functioning to deteriorate.
Given this uncertainty and that:
(a)Y has been in his father’s primary care since mid-2024; and
(b)since the order was made on 9 August 2024, Y has communicated with his mother as provided therein; and
(c)final parenting orders will be made on 26 September 2024,
I am not persuaded that it is in Y’s best interests either to return to live with his mother and spend only supervised time with his father, or to commence a regime of spending supervised time with his mother (noting that this is the very antithesis of the mother’s proposal for final parenting orders). The imposition of supervision over Y’s interactions with either of his parents would represent a very significant change for him and is something which, given that final parenting orders will be made in three and a half weeks’ time, I consider he should not be required to accommodate at this time.
Others may have been persuaded that Y’s best interests would be met by simply returning to the parenting regime imposed by the June 2022 and October 2023 orders for the next three and a half weeks and trusting each parent to take the appropriate steps to protect him from any risk Mr F may pose to him.
I have reluctantly concluded that this is not the case.
In arriving at this decision, I have placed significant weight on the fact that, by text sent in mid‑2024, the mother asked the father to deliver Mr F’s recreational weapon to her home for him as she thought it would be therapeutically beneficial for him to have the same. That the mother thought that this was an appropriate suggestion in the context of Mr F’s long-standing mental health issues and previously aggressive and threatening behaviours (which have included, as recently as 2024, verbally threatening her) has persuaded me to err on the side of caution in making orders for Y’s care over the next three and a half weeks.
Consequently, I consider that, for the next three and a half weeks, Y’s best interests will be met by orders which require him to continue to live with his father and to communicate regularly with his mother via telephone or video communication. In this way, he will continue in the routine that has been established by the 9 August 2024 orders; the risk of him being exposed to Mr F in a dysregulated state will be eliminated; he will be shielded completely from Mr F’s efforts to maintain abstinence from illicit drug use; his relationships with his mother and members of her family can continue (albeit not in-person); and the mother will be enabled to focus upon caring for Mr F, whom she has described as “already severely damaged”. Further, Mr F will have the opportunity to engage with his Case Manager at least once more and he will have been psychiatrically reviewed for the second time by Dr J.
Whilst I have no doubt that the mother is highly unlikely to agree, I am not persuaded that having only telephone or video communication with his mother and members of her family during the next three and a half weeks in the manner provided for in the order will irreparably damage the relationships Y has with her or them.
Other relief sought by the mother
I am not persuaded that it is appropriate or that the balance of convenience favours the making of an order restraining the father from filing any further applications in the matter without first obtaining leave of the court; consequently, I decline to accede to the mother’s application that such an order is made.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 30 August 2024
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