Arata & Rex (No 4)
[2024] FedCFamC1F 729
•9 August 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Arata & Rex (No 4) [2024] FedCFamC1F 729
File number(s): LEC 250 of 2021 Judgment of: HOGAN J Date of judgment: 9 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother sought that a recovery order issue to return the child to her care – Where there is two weeks until the next listed appearance before the Court – Where the parties’ adult child has been recently released from an extended stay at a mental health facility – Where that adult child has been released into the care of the mother – Where there is a lacuna of evidence of the adult child’s functioning since his release – Where it is not in the best interests of the child to issue a recovery order Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: First Instance Number of paragraphs: 19 Date of hearing: 9 August 2024 Place: Brisbane Applicant: Litigant in person Solicitor for the Respondent: Ms Burgess, Burgess Family Law Solicitor for the Independent Children's Lawyer: Ms Burton, Legal Aid NSW ORDERS
LEC 250 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REX
Applicant
AND: MR ARATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed 6 August 2024 and sealed 7 August 2024 is dismissed.
2.The matter is listed for a further interim hearing before Justice Hogan commencing at 10.00 am on 23 August 2024, at the Federal Circuit Court and Family Court of Australia (Division 1) at Brisbane.
3.All parties attend the interim hearing of this matter in person.
4.By no later than 4.00 pm on 15 August 2024: the father file and serve an Application in a Proceeding and any supporting affidavit intended to be relied upon in support of any interim parenting orders sought to be made.
5.By no later than 4.00 pm on 21 August 2024: the mother file and serve a Response to the Application in a Proceeding filed by the father, together with any supporting affidavit intended to be relied upon at the interim hearing on 23 August 2024.
6.The parties have leave to rely upon the following affidavits at the interim hearing on 23 August 2024:
(a)affidavit of the mother sealed 6 August 2024 at 8.12 pm; and
(b)affidavit of the father sealed 8 August 2024 at 3.19 pm; and
(c)affidavit of the mother sealed 8 August 2024 at 8.53 pm.
7.The Independent Children’s Lawyer has leave to issue any subpoena thought necessary, including a subpoena directed to:
(a)New South Wales Police Service; and
(b)Town H Hospital; and
(c)Town G Hospital.
8.For the purpose of the proceedings, service of any subpoena issued by the Independent Children’s Lawyer referred to in Order 7 above shall be effected by email and the Rules which otherwise relate to the manner by which service is to be effected are otherwise dispensed with.
9.Pursuant to Rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the time provided by the Rules for compliance with any subpoena issued in accordance with Order 7 above is abridged to 4.00 pm on 16 August 2024.
IT IS ORDERED UNTIL FURTHER ORDER THAT:
10.The operation of paragraphs 2 and 3 of Orders made by Senior Judicial Registrar Spink on 9 June 2022 and the operation of paragraph 1(b)(iii) of the Orders made by Judicial Registrar Thiele on 12 October 2023, be stayed until further order.
11.The child, X, a male, born 2014, live with the father.
12.The child shall have telephone or video communication with the mother on the following occasions:
(a)4.00 pm on 9 August 2024; and
(b)4.00 pm on 13 August 2024; and
(c)4.00 pm on 15 August 2024; and
(d)4.00 pm on 19 August 2024; and
(e)4.00 pm on 22 August 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.
AND IT IS ORDERED THAT:
13.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).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have today before me an Application for a recovery order made by Ms Rex, the mother in the substantive proceedings that are the subject of a reserved judgment.
The father responded by seeking various interim parenting orders.
When the matter first came before me this morning, Ms Burgess, who appears for the father, quite properly outlined that his position in relation to the orders sought on an interim basis and, as I heard her submissions, on a final basis, have changed. The changes announced by Ms Burgess on behalf of the father are significant in terms of the position that he intends to adopt.
With that in mind, I advised Ms Burgess and Ms Rex, who appears on her own behalf, and Ms Burton, the Independent Children’s Lawyer, that it seemed to me that the appropriate and fair course to all involved was that I consider today only the application for a recovery order and what interim parenting orders should be made between now and 23 August 2024, when the matter will be listed again before me so that I can hear a foreshadowed application for interim parenting orders pending the delivery of judgment.
It is within that context that the reasons I am delivering orally now need to be seen.
As authority makes clear, it is unnecessary for the court to specifically outline its consideration of each of the relevant s 60CC factors within the Family Law Act1975 (Cth) taken into account in determining what interim parenting orders are in any child’s best interests.
Having regard to the material before me, I am not persuaded that it is in X’s best interests to make the recovery order sought by the mother.
I note in passing, the submissions made by Ms Burgess on behalf of the father to the effect that, if I was persuaded that the appropriate order was simply to continue the existing interim parenting orders, the father would comply and would return X to his mother’s care without the necessity of the making of a recovery order. But, in any event, I do not consider a recovery order in this case at this time, given that the matter will be back before me on 23 August, is an order that is in X’s best interests.
I note that Mr F, who is X’s older brother and now an adult (albeit one who is still within his teenage years) has only recently been released from Town G Hospital following what is a relatively lengthy admission to hospitals providing mental health support. As Ms Rex outlined, he was most recently first admitted to Town H Hospital, I think in mid-2024, following which he was transferred to the Town G Hospital Mental Health Unit, according to what is said to be a summary of the Discharge Summary from that hospital. His admission there was for a period in mid-2024.
Within that period of admission, extended to take into account his admission to Town H Hospital in mid-2024, Ms Rex informed me that he ran away on two occasions: once during his transfer between Town H Hospital and Town G Hospital, during which he was recovered the same day; and, on a second occasion (two days after he arrived at Town G Hospital, at which time he was granted leave from the unit for one hour) during which he was absent from hospital for two days before being recovered.
I note these things simply to provide some indication of the extent to which, at that time and during that admission, it seems highly likely that Mr F was suffering very significant mental health issues. It is clear that his release from hospital, where he was previously admitted, on, as I understand it at least, an involuntary treatment basis, is very, very recent. It was only on 6 August, that is, the Tuesday of this week, that he came into his mother’s care.
Whilst Ms Rex’s submissions and evidence are to the effect that Mr F is back to the person he was prior to his difficulties with mental health which had pre-dated his most recent admission to hospital, the time is, I emphasise, very short. He has a previous history of admissions for mental health issues and release following which he has relapsed in his drug use, with adverse consequences for his mental health functioning and, on occasion, which have resulted in his re-admission for mental health purposes.
Given that I am considering only the next fortnight, and taking into account Ms Rex’s submissions about the impact upon X and his relationship with her and the members of her household including Mr F, I am not persuaded that those relationships will be so adversely affected by there being a brief moratorium over his physical interaction with the mother and his brother.
I remain significantly concerned about the possibility that, given that his release from mental health treatment is very recent, Mr F may, as he has previously done, suffer a relapse and return to use of drugs.
The mother’s own evidence about an event earlier this year reveals the potential risk that Mr F may, as a consequence of suffering with mental health issues, pose to his brother. Her evidence included that, on an occasion, he made a threat to kill her; that she received that threat in a way that meant she believed it, she actioned her belief by contacting police and the consequence for Mr F was that he was removed from the home and charged with offences; an Apprehended Violence Order was made to protect the mother from Mr F.
Whilst I accept that the mother is attempting to juggle her obligations as a parent to both of the children, I also accept that the father is attempting to do exactly the same thing.
At this stage, the evidence before me is, I consider, such as to place me in the position to hold residual concerns about X’s safety if he was to return to the mother’s household during the next fortnight.
It may be that, on 23 August, when I have the matter back before me, there is additional evidence before me about how Mr F is actually going at that point in time – this will have allowed him almost three weeks to be in the mother’s care and a period of time to settle. The mother’s submissions included that Mr F is being assisted in that transitional and settling time by visits from what I apprehend is a community mental health team. There may well be evidence from such people to provide the Court with a better appreciation of how his functioning is going at the present time, so as to place me in a better position to be able to assess the risk to X, if any, at that time.
I also note that, whilst the mother’s submissions included that she and Mr F attended upon a doctor at the L Medical Centre for the purpose of the issuing, on 8 August 2024, (yesterday) of a medical certificate, the contents of that document are confined to being what is described as a summary of the hospital discharge summary of Mr F’s admission to Town G Hospital in mid‑2024. The report contains no information whatsoever, and no opinion whatsoever expressed by the authoring medical practitioner, of his observations of Mr F’s presentation and functioning on that day. That, I consider, is a significant lacuna in the evidence before me at this point in time.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 1 November 2024
0
0
2