Beza & Hann
[2023] FedCFamC1F 942
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beza & Hann [2023] FedCFamC1F 942
File number(s): PAC 1339 of 2018 Judgment of: BAUMANN J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests decision – Where the father experiences ongoing mental and physical health conditions, and is currently actively engaged in ongoing treatment with his medical professionals – Where the mother is found to be supportive of the child having a relationship with the father yet continues to seek the child spend no time with the father – Where the father seeks equal time – Time ordered which enables the child to spend additional time with the father as is age appropriate Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Division: Division 1 First Instance Number of paragraphs: 57 Date of hearing: 11-13 September 2023 Place: Parramatta Counsel for the Applicant: Mr Butters Solicitor for the Applicant: Lamrocks Solicitors Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Long Saad Woodbridge Lawyers Counsel for the Independent Children’s Lawyer: Ms Conte-Mills Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 1339 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEZA
Applicant
AND: MR HANN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS:
1.That all previous parenting Orders are discharged.
Parental responsibility
2.The parents shall have equal shared parental responsibility for the child, X born 2017 (“the child”).
Living arrangements
3.That the child live with the mother.
School term time
4.That the child spend time and communicate with the father until 31 December 2023 commencing on the first Saturday following the making of these Orders:
(a)In week one (1) from 9.00am to 1.00pm each alternate Sunday;
(b)In week two (2) from 4.00pm to 7.00pm each alternate Wednesday; and
(c)At other times as agreed by the parents in writing.
5.That following the expiration of the period in Order 4, and for a period of a further three (3) months commencing on the Saturday which falls a fortnight following the last Sunday in Order 4(a), the child shall spend time with the father:
(a)in week one (1) from 9.00am to 3.00pm each alternate Saturday and Sunday;
(b)in week two (2) from the conclusion of school (or 3.00pm) to 7.00pm each alternate Wednesday; and
(c)at other times as agreed by the parents in writing.
6.That following the expiration of the period in Order 5, and for a further period of two (2) months commencing on the Saturday which falls a fortnight following the last Sunday in Order 5(a), the child shall spend time with the father:
(a)in week one (1) from 9.00am Saturday to 5.00pm Sunday and each alternate week thereafter;
(b)in week two (2) from the conclusion of school (or 3.00pm) to 7.00pm each alternate Wednesday; and
(c)at other times as agreed by the parents in writing.
7.That following the expiration of the period in Order 6 and for a further period ending at the conclusion of term three (3) 2024, and following in the same alternate week pattern as Order 6, the child shall spend time with the father:
(a)in week one (1) from the conclusion of school (or 3.00pm) Friday until 5.00pm Sunday and each alternate week thereafter;
(b)in week two (2) from the conclusion of school (or 3.00pm) until 7.00pm Wednesday; and
(c)at other times as agreed by the parents in writing.
8.That commencing thereafter from a fortnight after the father’s last holiday weekend with the child during the September 2024 school holidays, in the same alternate week pattern as Order 7, the child shall spend time with the father:
(a)in week one (1) from the conclusion of school (or 3.00pm) Friday until before school (or 9.00am) Monday and each alternate week thereafter; and
(b)in week two (2) from the conclusion of school (or 3.00pm) until 7.00pm Wednesday; and
(c)at other times as agreed by the parents in writing.
School holidays
9.That:
(a)commencing with the end of term three (3) (September) school holidays of 2024 and each school holiday period thereafter, save as prescribed by Order 9(b), the child spend time with the father for one half of each school holiday period as agreed between the parents, but failing agreement for the first half in even numbered years and the second half in odd numbered years. During school holiday periods, the Order for school term time is suspended; and
(b)That for the 2024/2025 Christmas school holidays, the child shall spend time with the parents week about, with the child spending the first week with the father, and with changeover at 9.00am on a Saturday, unless otherwise agreed in writing. For the 2025/2026 Christmas school holidays and thereafter, Order 9(a) shall apply.
10.That for the purpose of Order 9, unless otherwise agreed, the following shall apply:
(a)The commencement of the holiday period shall be at 9.00am on the Saturday following the final day of school term;
(b)The conclusion of the holiday period shall be 9.00am on the first day of the next school term for the short school holiday periods and 5.00pm on 26 January for the Christmas school holiday periods;
(c)Changeover during the short school holiday periods will be at 5.00pm on the middle Saturday of these holidays; and
(d)Changeover during the Christmas school holiday period shall be at 5.00pm on the middle day.
Special occasions
11.That on the child’s birthday (or if the child’s birthday falls on a school day, then on the Sunday immediately following the child’s birthday), the child shall spend time with the parent that does not otherwise have the care of the child on his actual birthday, for at least three (3) hours as agreed between the parents in writing, but failing agreement from 9.00am until 12.00pm.
12.That for Mother’s Day, if the child is not otherwise in the mother’s care, the child shall spend time with the mother from 6.00pm the day before Mother’s Day to the commencement of school (or 9.00am if not a school day) on the Monday immediately following.
13.That for Father’s Day, if the child is not otherwise in the father’s care, the child shall spend time with the father from 6.00pm the day before Father’s Day to the commencement of school (or 9.00am if not a school day) on the Monday immediately following.
Telephone communication
14.That the child communicate with the father by way of telephone or facetime each Thursday or such other day as agreed by the parents, but failing agreement between 6.00pm and 6.30pm on the following basis:
(a)The father shall initiate the telephone call to the mother’s mobile …;
(b)The mother shall ensure the child is available to receive the call in private and unrecorded; and
(c)The mother shall ensure the mobile phone is in mobile reception area and with sufficient battery to enable the telephone call to take place.
Changeover
15.That where changeover does not occur at school, unless otherwise agreed in writing between the parents, changeovers at the commencement and conclusion of time with the father shall occur at Suburb B McDonalds (Cnr C Street and D Street).
Father’s health
16.That the father comply with any direction from his treating health care practitioners and provide all authorities and indemnities as required to permit and allow his treating health care practitioners (general practitioner, treating psychologist, psychiatrist and pain management consultant) to communicate with each other and with the mother.
17.That in circumstances where the mother is informed by any of the father’s treating health care practitioners that in their opinion the father has had a deterioration in his mental health that is likely to negatively impact the child, then the mother is at liberty to suspend physical time between the child and father in accordance with these Orders and the child shall spend supervised time with the father as agreed between the parents for such time until the father’s treating health care practitioners provide a report that the father has recovered from the mental health incident, at which time the time shall recommence from where the time ceased, unless otherwise ordered by a Court.
18.That until the conclusion of 2029 and upon the written request of the mother, the father shall undertake urinalysis for alcohol and a breakdown of all substances within forty eight (48) hours of such a request and provide the results to the mother as soon as they become available to him.
19.That for the purposes of Order 18:
(a)the mother may request the father undertake urinalysis on not more than four (4) occasions each year;
(b)results of urinalysis in relation to alcohol must have an EtG marker which shows less than 1.7%;
(c)results of urinalysis in relation to the substances must show no use of substances;
(d)in the event there is a positive reading for alcohol, then Orders for physical time (as applicable) are suspended and the child shall spend supervised time with the father or as agreed between the parents until such time as the father can show two (2) consecutive hair follicle tests over a minimum six (6) month period where no alcohol or substances are present in the hair follicle samples, after which the time shall recommence from where the time ceased; and
(e)in the event the father fails to undertake the urinalysis and/or fails to provide the mother with the results within seven (7) days of receipt of the results by him without reasonable excuse, then Orders for physical time (as applicable) are suspended and the child shall spend supervised time with the father as agreed between the parents until such time as the father provides three (3) additional urinalysis results showing abstinence from alcohol over a six (6) month period, after which the time shall recommence from where the time ceased.
Authorities
20.That the mother is authorised to obtain updates and reports concerning the father’s mental health from the father’s treating general practitioner and mental health practitioners. For this purpose, the father is to keep the mother updated with the names and contact details of all current treating practitioners, and this Order shall constitute the authority required for the treating practitioner to furnish such updates and/or reports to the mother.
21.That the father is authorised to obtain reports, attend school events and attend parent teacher interviews and receive any information from the child’s school to which parents are ordinarily entitled to receive.
Communication
22.That both parents shall keep the other advised at all times of their residential address, email address and mobile telephone number and shall advise the other party within forty eight (48) hours of any change to these details.
23.That the parents communicate about non-urgent issues and share information about the child’s curricular and extra-curricular events by way of the “Our Family Wizard” application, and urgent communication shall occur by way of SMS text message, with the father to be solely responsible for payment of the parents’ subscription to “Our Family Wizard”, including with tone filter.
Restraints
24.That each parent shall:
(a)respect the privacy of the other parent and refrain from questioning the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or the presence of the child;
(d)not denigrate or insult the other parent’s extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing or presence of the child;
(e)not discuss these proceedings with the child or allow any other person to do so with their knowledge or in their presence nor permit the child to have access to any documents filed in these proceedings;
(f)not question or interrogate the child about the time he has spent with the other parent and shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(g)not communicate any information or messages intended for the other parent through the child; and
(h)ensure they are courteous and polite in the conduct of changeovers.
Child’s health
25.That in the event the child suffers from significant illness or hospitalisation, the parent who has the child in their care shall notify the other parent as soon as practicable with details of the illness, name of the hospital and treating medical personnel.
26.That in the event the child falls ill or is injured during the his time with the father, the father is to immediately notify the mother.
Other orders
27.That each party equally share the costs of the Independent Children’s Lawyer unless such costs are waived by the Legal Aid Commission New South Wales. The Court notes that the Independent Children’s Lawyer is mandated by New South Wales Legal Aid to bring cost applications in all matters, and that such application has been made in this case.
28.That the Independent Children’s Lawyer is discharged upon the expiration of the appeal period or conclusion of any appeal process.
29.That all Applications are otherwise dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Beza & Hann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
X, now aged six years of age, is a much-loved only child of a relationship between the Applicant mother, Ms Beza, and the Respondent father, Mr Hann. As the history of the relationship and proceedings below reveals, after separation in 2018, the parties were ultimately able to reach final consent orders in July 2021. However, an event shortly thereafter has caused these proceedings to be recommenced, relitigated and the subject of a trial, which did not occur when the orders were made in July 2021.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
BACKGROUND
Statements of fact hereafter shall be construed as findings of fact. The father is currently 45 years of age; he joined the defence forces when he was aged 17 and was discharged after this relationship began, serving a number of years in the Defence services. The mother is currently aged 44 years of age, and had three children in her care, for which she was responsible at the time that the relationship with the father began, with cohabitation commencing in 2016. Those children, Ms E (now aged 25 years), Mr F (now aged 21 years) and G (now aged 14 years) have intact relationships with their mother.
As earlier indicated, X was born 2017. I am satisfied on all the evidence that the mother was aware that the father was, whilst a member of the defence forces, struggling with mental health issues when their relationship commenced. I have no doubt that the events in or about January 2018 that caused separation of the couple, when X was very young, were a result in part of the father’s mental health challenges. A protection order was made in early 2018.
Earlier proceedings commenced by the father in 2018 progressed their way through the Court system. There were two family reports prepared; multiple Court appearances; the assistance of an Independent Children’s Lawyer and a psychiatric report from the father’s treating psychiatrist, Dr H. At the time that the first consent orders were made for X when he was four, on 9 July 2021, the father had progressed to spending time with the child unsupervised, and was about to begin overnight time. Sadly, for the trajectory of this matter, within a month of those Orders, in August 2021, there was an incident between the father and his then partner, Ms J.
I do not have any evidence from Ms J. The father’s versions of what actually occurred and the extent to which Ms J’s children may have been involved is less than clear and certainly difficult to challenge, in the absence of Ms J’s evidence. Relevantly, Order 18 made on 9 July 2021 provided as follows:
That within 7 days of the date of these Orders, and within 7 days of attending upon a new medial professional, the father shall sign and provide an irrevocable authority and do all such things as may be necessary including providing the mother’s contact details, to authorise [Dr H], [Mr K], his General Practitioner, or such other medical professionals, treating psychologist and/or treating psychiatrists he is attending upon from time to time, to make contact with the Mother in the event the father fails to comply with their recommendations for treatment/medication or if they hold any concerns in relation to the father’s welfare or that of the child, and provide proof to the Mother of compliance with this Order within a further 7 days.
The father’s treating psychiatrist brought the father’s deterioration of mental health to the attention of the mother quickly – by letter dated 13 August 2021. The breakdown of the relationship with Ms J precipitated a break down in the father’s mental health, such that he took medication and, perhaps, combined with alcohol use, caused him to be hospitalised immediately.
He was not discharged for some weeks from the L Hospital until in or about late 2021. Quite understandably and properly, the mother commenced proceedings on 16 September 2021, and within a month, a Senior Judicial Registrar had effectively discharged or suspended earlier Orders for unsupervised time between X and his father and made Orders that the child’s time with the father occur for three hours each fortnight, supervised. The evidence suggests that, in or about 6 November 2021, the first supervised visit occurred at M Family Services.
It is agreed between all the parties that the visits at M Family Services between the father and the child went well, but the mother says, and to some degree the evidence supports, that the father was a little inconsistent in respect of visits to the supervised contact centre. This seems to me to be associated with no significant improvement in the father’s mental health between the discharge from hospital in late 2021 and what was a further event that took place in early 2022, where the father again was hospitalised at L Hospital after he experienced further difficulties associated with his excessive substance use and alcohol which were identified as exacerbating his sense of unwellness and unhappiness.
The matter progressed through the Court system and a further report (the third family report for this family) by Dr N was released on 3 June 2022, arising from interviews in April 2022.
I am satisfied on all the evidence that a further issue that the father was contending with, other than the agreed treatment of his complex post-traumatic stress disorder (“PTSD”) and alcohol and substance misuse, was pain associated with injuries sustained during his service in the defence forces. As a result of that issue, I am satisfied that the father was referred to and engaged with Dr O, who is a pain physician and specialist.
Dr O gave evidence to the Court and provided a report of 6 September 2023. The father first consulted him in April 2022, and his last visit before the trial was on 20 July 2023. Dr O facilitated the prescription of medication to assist with the father’s pain and anxiety, which was prescribed and is being used by the father, supported by his psychiatrist at the time, Dr H.
Dr O’s evidence is that the father no longer presents with the issues that may have been present in at least September 2021 and January 2022 and, in particular, a complete absence of use of alcohol and no longer taking any medication with substances has been a significant factor, so much so that Dr O says – and I accept that Dr O’s assessment is that the father only needs to see him, essentially, for pain-management on a “needs basis”. Dr O, like all the father’s treating health professionals, are funded by the Department of Veterans’ Affairs – the appropriate service offered by the department to veterans.
It was necessary to change from the M Family Services establishment to Q Contact Centre in February 2023, and the evidence accepted by the parties is that, again, the visits were both more consistent and beneficial to the child, who was enjoying the time with his father and manifested in all ways his love for his father. Dr N provided a second report in April 2023, which effectively was an addendum relating to questions arising from the April 2022 report. This included him being given access to documentation from the L Hospital; Dr P; Dr O; the father’s then treating psychologist, Mr K, and the father’s then treating psychiatrist, Dr H.
I say the “then treating psychiatrist, [Dr H]”, because although he had been the long-term psychiatrist of the father, he retired from practice in late 2022. The father engaged quickly with a new psychiatrist, Dr S, from 18 January 2023.
The father had surgery for the second time in May 2023. He says that that surgery has reduced his pain and, together with the strategies prescribed and managed to a degree by Dr O, he no longer uses substances in any form; has been abstinent from alcohol use for over 16 months and has built new therapeutic support with Dr S and clinical psychologist, Ms R, who assumed the conduct of the father’s management of those services when Mr K retired in mid-2023.
The matter was listed for trial to begin, as it did, on 12 September 2023 in the Paramatta registry. From the history, one can see that the father had, at that stage, been spending supervised time with X ever since the incident in mid-2021. At the conclusion of the trial, the Court indicated that because there would be some delay in preparing these Reasons for Judgment, and on the basis of the evidence, submissions were invited to make an interim variation of the current Orders for unsupervised time. After hearing those submissions from Mr Butters of Counsel representing the mother; Mr Gardiner of Counsel representing the father; and Ms Conte-Mills of Counsel representing the Independent Children's Lawyer, the Court gave brief oral Reasons for making an Order on 13 September 2023 in the following terms:
1.That commencing on 17 September 2023, the child, [X] born […] 2017 (“the child”) spend unsupervised time with the father each alternate Sunday from 9.00am to 1.00pm.
2.That unless otherwise agreed in writing between the parents, changeovers at the commencement and conclusion of time with the father shall occur at [Suburb B] McDonalds (Cnr [C Street] and [D Street]).
3.That unless otherwise agreed between parents, the child shall communicate with the father by telephone each Wednesday between 6.00pm and 6.30pm on following basis:
a.The father shall initiate the telephone call to the mother’s mobile […];
b.The mother shall ensure the child is available to receive the call in private and unrecorded; and
c.The mother shall ensure the mobile phone is in mobile reception area and with sufficient battery to enable the telephone call to take place.
4.That the parents are restrained and an injunction hereby issues restraining the parents from discussing these proceedings or other adult issues, including father’s previous health issues, with or in the presence or hearing of the child.
IT IS NOTED:
A.That the mother has advised that the child’s residential address is [T Street], [Suburb U], New South Wales.
COMPETING PROPOSALS
At the commencement of the hearing, consistent with the parties’ case outlines (both case outlines also identifying the material they were relying upon) the mother’s primary position was that the Court should order that X spend no time with the father. The alternative position, as set out in her amended Application filed 15 November 2022, was there ought to be supervised time on 12 occasions a year for up to three hours; telephone time each Wednesday, and that the father should have the opportunity to send cards and gifts to the child on appropriate occasions.
Somewhat disappointingly, although understandably, despite the significant evidence that the Court heard over the two days of the trial, the mother’s position, as set out in her amended Application of 15 November 2022, did not change.
The father’s amended Response of 28 August 2023 essentially sought to return to the Orders made by consent in July 2021, but with some variations to increase the time over a period. In particular, it included a proposition that the child begin spending holiday time with the father from 2025. The father, in his proposal, acknowledged that it would be appropriate for alcohol and drug-testing to continue he suggested on a six-monthly basis, and further accepted it was appropriate that similar provisions to the earlier mentioned Order 18 to enable his medical team to report to the mother be incorporated, with such order, as already noted, having been important and activated when Dr H wrote to the mother in August 2021.
The Independent Children’s Lawyer’s case outline on 10 September 2023 contained various orders that included, initially, six months of continued supervised time before graduating to unsupervised regimes as set out in the case outline, with school holidays time to commence when the child had turned approximately 10 years old from 2027.
However, and helpfully, the Independent Children’s Lawyer, at the conclusion of the trial, varied the position and Appendix One to these Reasons is the minute of order proposed by the Independent Children’s Lawyer (marked as Exhibit 10). To a large degree, final submissions were based on agreements or disagreements with the template of order proposed by the Independent Children’s Lawyer. I will refer to those submissions later in these Reasons. Before doing so, it is important, I think, to create some context for the findings I make in this matter by referring quickly to how the parties and other witnesses, presented to me.
THE MOTHER
The mother is a very experienced parent. Although the father says that the mother has not been as supportive of the relationship he seeks to have with X than she could have, I would not be too critical of her. She has, to a large degree, been trying to manage unknown factors. There is no real criticism of her parenting of X, a primary role that she has been undertaking since he was six months old. She has intact relationships with her older children and, in fact, at one stage, one of the children was involved in supervising the time that the father had or was spending with X.
The mother works in a retail situation. She is of very modest means. Although she says she fears the father, she moved closer to him, and when asked about why that was so, she indicated it was really about the affordability of rental accommodation. She acknowledges that X has a wish to spend time with the father; loves his father and is happy to concede that the father loves X. Her whole case is premised on the concerns that the father’s mental health creates a vulnerability that creates a risk that could cause serious harm to the child.
Having reached a position, relying on two earlier reports from Dr N, to consent to the Orders made in July 2021, her faith in the father’s both honesty and predictability of his health were seriously challenged by the events of mid-2021. During the course of her cross-examination, I could not only be impressed by the way in which she explained her concerns, whilst at the same time seeking to acknowledge what X would want and what was best for him. It was all about risk for her. She conceded many things in cross-examination, which showed a generosity of spirit. However, by the time of final submissions, it was as if that evidence had not been given, as she reverted to her primary position that it was not in the best interests of the child for X to spend any time with the father at all.
THE FATHER
It is clear that the father had a significantly troubled childhood. The evidence of Dr S, his current treating psychiatrist, and supported by earlier evidence from Dr H, is that his complex PTSD symptoms arise from his childhood trauma, rather than his defence forces service, primarily. No point is served incorporating in these Reasons details of that “childhood trauma”, other than it seems that he saw entering into the defence forces at the age of 17 as an opportunity to move on in his life.
He persisted in the defence forces for years until his discharge in 2019. Like many serving defence forces personnel, he was confronted by experiences in the defence forces that were difficult. He had persons close to him in the defence forces killed or die in action. Thankfully, the Department of Veterans’ Affairs provides, it seems appropriately, significant ongoing and lifelong support to veterans who require that support, either physically or emotionally.
There is no doubt in my mind that, since his discharge from the defence forces, the father has taken advantage of the opportunities for health professionals to support him. However, it has not prevented him from suffering at least two events which have caused the loss of confidence the mother has in him to be generated. I am satisfied, however, on the medical evidence, that the father’s mental health in both 2021 and then in 2022 had deteriorated to a state that, for his benefit, at least, it was necessary for him to be hospitalised.
There have been some significant changes since then. In particular, he no longer uses alcohol. He says that is the position, and all the tests to date confirm that is the position. That is not to say he was not vulnerable to using alcohol in the future, but that is the evidence as it exists at the time of the trial. The use of substances, essentially for pain relief, was obviously problematic when combined with alcohol the other mental health challenges facing the father. The evidence is that he no longer is prescribed or uses substances. I accept that evidence.
To the extent that his pain was associated with and required intervention by surgery, that having now occurred and with the benefit of the pain management from Dr O, his pain is now manageable. The use of prescribed medication has clearly assisted. One can only imagine how, with his underlying issues, the father was able to manage the pain from the injuries to his back. Much was made of an incident in mid-2023 where the father drove himself to the L Hospital after an accident. Whilst I accept Counsel for the mother sought to advance the proposition that the father relapsed into the use of medication whilst at the hospital, and that should be a trigger to the Court’s concern about both his honesty and his vulnerability, on all the evidence, I do not accept that to be the case.
I think the better view of the evidence, on the balance of probabilities, is that the injury he sustained was painful; he drove himself to the hospital; he was treated at the hospital; he does not totally understand or recall what treatment he received, but he says, and I accept, he did not leave the hospital with any medication. Essentially, in the hospital, there is no persuasive evidence he has undertaken any other form of pain relief for that additional injury.
The father has been under stress since the events of mid-2021, not the least being:
(a)his relationship with his partner, Ms J, at that time broke down a relationship which he described as toxic and unhelpful to him. Nonetheless, he found it difficult when the relationship ended;
(b)he subsequently formed two further relationships, both of which have not lasted. He says that his focus is now on X, and he does not wish to have a new relationship, concentrating rather on his relationship with his son;
(c)he has been unhappy that he has not been able to expand his time with his son beyond the initial supervised time orders made in October 2021. That is, it seems to me, a stress that he has, on all the evidence, been able to manage with his therapeutic support;
(d)he has had the strength of character and commitment to abstain from the use of alcohol and the use of substances (although, with the benefit of a different medication and treatment regime as Dr O has prescribed), but they, again, are stresses that he has had to deal with; and
(e)long term significant therapeutic support offered by Dr H and then by Mr K ceased as a result of their respective retirements, but the evidence of Dr S and Ms R indicate that he has maintained therapeutic support with these new health professionals.
As a result of all these factors, I accept the evidence of Dr S that, at the time of the trial, he presents well, with an insight into his treatment regime and triggers that can cause him unwellness.
I need to quickly refer to a theme pressed by Counsel for the mother, no doubt on instructions, that the father had been less than honest about a diagnosis of a mental disorder. I do not believe there is anything in that issue. Dr S was aware that Dr H may have had a view that the father had a mental disorder. However, her view is that he does not and that, rather, it is more complex PTSD and anxiety that are the challenges for the father, and that is the focus of her treatment and support.
Ms R, who presented as an experienced therapist working with veterans with similar conditions, gave evidence that there is to some degree an overlap between a diagnosis of mental disorder and complex PTSD. To the extent that it was being suggested that the father was “hiding” an earlier diagnosis for some ulterior motive, I reject such a submission. Ultimately, Dr N’s evidence and opinions, which did not move from cross-examination by the mother’s Counsel (him being the final witness in the case), was that consistent with his longitudinal assessment of the father and the issues in this case, if the Court made a finding that the father is doing well now, there is no need for supervision and that supervision conditions are onerous and likely to impede the natural development of the child X’s relationship with the father. He did acknowledge, however, that in view of the journey the mother has undertaken, it was not likely that she would accept any evidence that the father does not present a risk, as much as she may wish to do so, maintaining a constant suspicion that the father is not being totally honest with his therapists.
I will now deal with the competing proposals within the matrix of the relevant additional and primary considerations.
PRIMARY CONSIDERATIONS
Even though the mother’s primary proposal was for no time, in her evidence, I assessed her as acknowledging that the child would benefit from a meaningful relationship with the father, but that, in her view, the risk outweighed the benefits. The father wishes to develop a relationship that was progressing, he says, well up until mid-2021, interrupted as it has been by the events already referred to above. I am satisfied that the child will benefit from a meaningful relationship with both of his parents.
Of course, pursuant to section 60CC(2A), the Court is required to give greater weight to the need to protect the child from physical or psychological harm and, from being subjected to or exposed to abuse, neglect or family violence, than to the benefit to the child of having a meaningful relationship with a parent. In view of the evidence which I have accepted from the father’s treating health professionals, I do not regard the father as being an unacceptable risk to X in the circumstances where he is well and maintaining his medical treatment, including medication as prescribed. In making this finding, I was impressed by the evidence of the father, which I accept, about the degree of insight he has developed about his condition, and the stresses and triggers to his unwellness.
I did not regard him as a parent who would put his needs to have a relationship with his child above the child’s best interests, or to put X at risk. There is no evidence that that has happened to date, since the time of the parties’ separation when the child was very young. No arguments were being advanced that the mother in any way presented a risk to the child, nor could it have been. Her emotional reticence, reluctance and, to a degree, concerns are, in terms of the history of this matter, understandable, but that cannot, in my view, outweigh the evidence before me, assessed clinically and forensically.
ADDITIONAL CONSIDERATIONS
I deal with the additional considerations relying on earlier findings, but in a narrative style. The child makes it clear, consistently both to Dr N and to anyone who will listen, that he wants a relationship with his father, enjoys the time and, I infer, wants more time. I am satisfied, however, at his age, his wishes could not be given determinative weight.
The child’s primary relationship is not surprisingly, in view of the history of care, with the mother. However, I assess the father as having a strong relationship with the child and a strong foundation for growth of his relationship.
I accept that the child has, as the mother says, good relations with older adult siblings, although they are at quite different stages of their development.
The Court has been looking at this matter since separation on at least two different tranches, the time the child spends with the father and the arrangements relating to the care of the child have generally been regulated by Court orders. I am satisfied that the parties have complied with those Orders.
Dr N dealt with the mother’s primary proposal in relation to a no time order. He opined that this could have a significant adverse effect upon the child; would distress him and could have long-term and medium-term repercussions for his emotional wellbeing and sense of identity. I agree.
There are no practical difficulties in relation to the child spending time with the father or living with the mother, save that continued supervision was financially onerous and also impeded natural activities that cannot be easily undertaken in a contact centre environment.
I rely upon earlier findings in relation to the capacity and attitude of the parents to the child and to the responsibilities of parenthood. When the father is functioning well, as I find he is at the moment, there are no real criticisms likely to be advanced about his style of parenting any more than there are against the mother. At 45 years and 44 years, respectively, the father and mother have had many life experiences which shape how they wish to enrich their son’s life, and it is in the interests of the child that they be given the opportunity to continue to do that.
There are no current family violence orders between the parents. Certainly, an issue arose as to the event with Ms J in August 2021, however there is no evidence, that any orders in relation to that event remain against the father – possibly because of his mental health status at the time.
Of course, it is preferable to make an order least likely to lead to further proceedings being instituted. As the history reveals, it was disappointing that the final orders of July 2021, carefully crafted, providing for an agreed progression of time for a young child (who at that age was yet to turn four years of age) came unstuck so quickly. If there was a further event with the father’s health (which I assess to be unlikely on the evidence, but could occur if there was an external or internal stress of some magnitude), despite the support of his team of medical professionals and full compliance with his treatment, then, as in the past, one would expect this hypervigilant and protective mother to take steps immediately to protect the child, as she did in September 2021.
However, the orders which I propose to make, which build on the relationship which exists and will improve as the child gets older, are likely, in some way, to reduce the prospect of further proceedings if the parties sensibly comply with the Orders. In that regard, I was comforted during the course of the trial to hear from both the mother and the father’s evidence that they think the coparenting communication is respectful, polite and not accusatory or toxic. That can only be a good thing for X, and something for which both parents deserve some credit. Hopefully, the orders I make will assist in maintaining that level of cooperative communication.
DISCUSSION
Although the Orders in 2021 provided for the parties to have equal shared parental responsibility for the child “other than for medical conditions” (for which the mother, pursuant to Order 3 of those Orders, had sole parental responsibility), I am satisfied on all the evidence that it is in the best interests of the child, and reflecting the improved communication to which I have already referred, that equal shared parental responsibility be ordered in this case.
Arising from that order, the Court is required by law to consider whether it is in the best interests of the child and reasonably practicable for the Court to order an equal time regime or substantial and significant time. In view of the history, it is not in the best interests of the child for an equal time regime, notwithstanding the improved communication, and neither party urged that upon the Court. Whether, in the passage of time, as the child gets older, that is a possibility is not a matter I choose to speculate upon. The orders I make provide for a graduation of time that could be construed with elements of weekend, special event time and holidays as substantial and significant time. I regard an order that achieves those features as in the best interests of X, and reasonably practicable on the evidence at this time.
FORM OF ORDER
It follows from the findings I have already made that the Court does not support the mother’s primary position that the child spend no prescribed time with the father, or the mother’s alternate position that the time be limited to 12 visits a year of three-hour supervised durations. In my view, consistent with what was said on 13 September 2023 and confirmed by these Reasons, the child should be spending unsupervised time with his father. As to how that unsupervised time should progress and on what conditions, I am thankful to the Independent Children's Lawyer for the attention and skill devoted to the form of order, which is marked appendix 1 to these Reasons.
When I was able to focus the legal representatives’ attention to that template, and based on the submissions I received from both Mr Gardiner for the father and Mr Buttress for the mother, the order which I pronounce today, and which appears at the commencement of these Reasons, has taken into account the following submissions made to me as to the form of order, namely:
(a)In circumstances where I do not agree with the mother’s proposal for no time, and having made interim Orders on 13 September 2023 for X to spend time each alternate Sunday with the father (unsupervised) between 9.00am until 1.00pm, the issue that requires determination is how the time should now progress;
(b)The father seeks that the time progress more quickly than the Independent Children’s Lawyer proposes, with the time moving straight to three nights a fortnight. I find it is in the best interests of X to move slightly quicker than the Independent Children’s Lawyer proposes but not as quick as the father proposes;
(c)Special days such as Mother’s Day, Father’s Day and the Christmas period should be accommodated;
(d)X’s birthday each year is unlikely to ever fall in a school holiday period – usually falling during a school week or a weekend. I make some orders for his birthday, but elect not to incorporate any orders relating to the parents’ birthdays;
(e)The order made for the changeover location being Suburb B, McDonalds Restaurant should continue, until the time moves to overnight from Friday after school until Monday before school, where changeovers should take place at school;
(f)I agree that requests by the mother for the father to undertake urinalysis should be limited to four occasions a year;
(g)Although the father’s further amended Response filed 28 August 2023 did not propose equal time during school holidays (at proposed order 4.1.1(f) it progressed to four nights a fortnight), Mr Gardiner for the father raised the prospect of equal time. For reasons already given, I am not prepared to order equal time during school terms at this time, although equal time during school holiday periods is appropriate, moving from week about for the end of term four (4) holidays to blocks of equal time, from the 2025 Christmas school holidays – by, which time, X will be over 8 years of age and I assess, by that time, able to comfortably spend up to three weeks away from the mother as his primary carer. As the orders make clear however, the parents will be able to vary the arrangements by consent and in writing if they decide to do so, without the need to return to the Court again;
(h)I adopt otherwise the carefully crafted orders by the Independent Children’s Lawyer in relation to the father’s health authorities, communication, restraints and the child’s health.
With amendments as identified, I am satisfied the orders which appear at the commencement of these Reasons are, at this time on all the evidence, in X’s best interests.
I also formally discharge the Independent Children’s Lawyer.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 17 November 2023
APPENDIX ONE
Discharge of prior Orders
1.All prior parenting orders are discharged.
Sole Parental responsibility
2.The parents shall have equal shared parental responsibility for the child X (born 2017).
Live with
3.The child shall live with the mother.
Spend time and Communicate with
4.That the Father spend time with the child for a period of three (3) months commencing on the first Saturday following the making of these Orders:
(a)In Week 1: from 9:00am to 1:00pm each alternate Saturday;
(b)In Week 2: from 4:00pm to 7:00pm each alternate Wednesday;
(c)Other times as agreed by the parents in writing.
5.Following the expiration of the period in Order 4, and for a period of a further three (3) months commencing on the Saturday which falls a fortnight following the last Saturday in Order 4(a);
(a)In Week 1: from 9:00am to 3:00pm each alternate Saturday and Sunday;
(b)In Week 2: from the conclusion of school (or 3:00pm) to 7:00pm each alternate Wednesday;
(c)Other times as agreed by the parents in writing.
6.Following the expiration of the period in Order 5, and for a further period of three (3) months commencing on the Saturday which falls a fortnight following the last Sunday in Order 5(a):
(a)In Week 1: from 9:00am Saturday to 5:00pm Sunday and each alternate week thereafter;
(b)In Week 2: from the conclusion of school (or 3:00pm) to 7:00pm each alternate Wednesday;
(c)Other times as agreed by the parents in writing.
7.Following the expiration of the period in Order 6 and following in the same alternate week pattern as Order 6:
(a)In Week 1: from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 9:00am) Monday and each alternate week thereafter;
(b)In Week 2: from the conclusion of school (or 3:00pm) until 7:30pm Wednesday;
(c)Other times as agreed by the parents in writing.
8.That commencing in the June/July school holidays of 2024 and each school holiday period thereafter, the father may spend time with the child for one half of each school holiday period as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years and during school holiday periods, order 7 (or order 6 if applicable) is suspended and shall resume in school term time a fortnight after the father’s last holiday weekend with the child.
9.That for the purpose of Order 8, unless otherwise agreed, the following shall apply:
(a)The commencement of the holiday period shall be at 3:00pm on the final day of the school term;
(b)The conclusion of the holiday period shall be 9:00am on the first day of the next school term for the short school holiday periods and 5:00pm on 26 January for the Christmas School Holiday periods;
(c)Changeover during the short school holiday periods will be at 5:00pm on the middle Saturday of these holidays;
(d)Changeover during the Christmas School holiday period shall be 5:00pm on 7 January.
10.That the Father may communicate with the child by way of telephone or facetime each Tuesday or such other day as agreed to between the parties and failing agreement between 6:00pm and 6:30pm and for this purpose the Mother shall telephone the Father on his mobile telephone number.
Changeover
11.That where changeover does not occur at school, then unless otherwise agreed, the mother shall deliver the child to and collect the child from the father’s residence and the father is to ensure he is present for the changeover.
Father’s Health
12.The father is to comply with any direction from his treating health care practitioners and is to provide all authorities and indemnities as required to permit and allow his treating health care practitioners (general practitioner, treating psychologist, psychiatrist and pain management consultant) to communicate with each other and with the mother.
13.In the circumstances where the mother is informed by any of the father’s treating health care practitioners that in their opinion the father has had a deterioration in his mental health that is likely to negatively impact the child, then the mother is at liberty to suspend time between the child and father in accordance with Orders 4-9 and the child shall spend supervised time with the father as agreed between the parties for such time until the father’s treating health care practitioners provide a report that the father has recovered from the mental health incident and the time in Order 7 shall apply with Orders 8 and 9 to recommence concurrently with Order 7.
14.That until the conclusion of 2029 and upon the written request of the mother, the father shall undertake urinalysis for alcohol and a breakdown of all substances within forty‑eight (48) hours of such a request and provide the results to the mother as soon as they become available to him. NB OPTION OF PERSONAL BREATHALYSER (Law enforcement grade)
15.That for the purposes of order 14:
(a)The mother may request the father undertake urinalysis on not more than 6 occasions each year;
(b)Results of urinalysis in relation to alcohol must have an EtG marker which shows less than 1.7%;
(c)Results of urinalysis in relation to the substances must show no use of substances;
(d)In the event there is a positive reading for alcohol then orders 4 - 9 as appropriate are suspended and the father shall spend supervised time with the child as agreed between the parties until such time as the father can show two (2) consecutive hair follicle tests over a minimum six (6) month period where no alcohol or substances are present in the hair follicle samples, then Order 7 shall apply with Orders 8 and 9 to recommence concurrently with Order 7.
(e)In the event the father fails to undertake the urinalysis and/or fails to provide the mother with the results within two (2) days of receipt of the results by him without reasonable excuse, then Orders 4 - 9 (as applicable) are suspended and the father shall spend supervised time with the child as agreed between the parents until such time as the father provides these three (3) additional urinalysis results showing from alcohol over a six (6) month period, thereafter Order 7 shall resume with Orders 8 and 9 recommencing concurrently with Order 7.
Authorities
16.The mother is authorised to obtain updates and reports concerning the father’s mental health from the father’s treating GP and mental health practitioners and for this purpose the father is to keep the mother updated with the names and contact details of all current treating practitioners and for this purpose this Order shall constitute the authority required for the treating practitioner to furnish such updates and/or reports to the mother.
17.The father is authorised to obtain reports, attend school events and attend parent teacher interviews and receive any information from the child’s school to which parents are ordinarily entitled to receive.
Communication
18.Both parents shall keep the other advised at all times of their residential address, email address and mobile telephone number and shall advise the other party within 48 hours of any change to these details.
19.That the parents communicate about non-urgent issues and share information about the child’s curricular and extracurricular events by way of the Our Family Wizard Application and urgent communication shall occur by way of SMS text message, with the Father to be solely responsible for payment of the Father and Mother’s subscription to Our Family Wizard, including with Tone Filter.
Restraints
20.Each parent shall:
(a)Respect the privacy of the other parent and refrain from questioning the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours ensure that others do not denigrate or insult the other parent in the hearing or the presence of the child;
(d)Not denigrate or insult the other parent's extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent's extended family in the hearing or presence of the child;
(e)Not discuss these proceedings with the child or allow any other person to do so with their knowledge or in their presence nor permit the child to have access to any documents filed in these proceedings;
(f)Not question or interrogate the child about the time he has spent with the other parent and shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(g)Not communicate any information or messages intended for the other parent through the child;
(h)Ensure they are courteous and polite in the conduct of changeovers.
Child’s Health
21.In the event the child suffers from significant illness or hospitalisation, the parent who has the child in their care shall notify the other parent as soon as practicable with details of the illness, name of the hospital and treating medical personnel.
22.In the event the child falls ill or is injured during the father’s time, the father is to immediately notify the mother.
Other Orders
23.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
24.That all outstanding applications are dismissed.
Independent Children’s Lawyer
25.The Court makes an order in relation to the costs of the Independent Children’s Lawyer that each party equally share the costs of the Independent Children’s Lawyer unless such costs are waived by the Legal Aid Commission NSW, AND THE COURT NOTES THAT the Independent Children’s Lawyer is mandated by NSW Legal Aid to bring cost applications in all matters and that such application has been made in this case.
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