Carter & Shahid (No 2)
[2024] FedCFamC1F 874
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carter & Shahid (No 2) [2024] FedCFamC1F 874
File number(s): WOC 705 of 2019 Judgment of: ALTOBELLI J Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – PARENTING – Where an oral application for supervised time is made – Where the Court receives information about the father’s mental health – Where the new information received changes the calculous with respect to the child’s safety – Where promoting the safety of the child requires that time be supervised – Where the Court allows the oral application for supervised time.
FAMILY LAW – PROCEDURE – Where the Court receives new information about the father’s mental health during a final hearing – Where an oral application for adjournment is made – Where the final hearing is adjourned to consider the new information provided – Where consent orders are made for disclosure of the father’s mental health records – Where consent orders are made for the filing of updated material.
Cases cited: Melounis & Melounis (No 4) [2024] FedCFamC1F 778 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 11 December 2024 Place: Sydney Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Ark Law Counsel for the Respondent: Mr Mando Solicitor for the Respondent: Gregis Law Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Walkden Law & Mediation ORDERS
WOC 705 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARTER
Applicant
AND: MR SHAHID
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant’s adjournment application is hereby granted, and the proceedings are adjourned to 5 May 2025 at 10:00 am, with a further estimated hearing time of four days.
2.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), orders are made by consent in accordance with the document marked “A” dated this day and attached hereto as amended by the Court.
3.Leave is granted to the parties to provide to my Associate executed consent orders regarding the appointment of a single joint expert in relation to the Respondent’s mental health and, if appropriate, orders may be made in chambers.
4.The Respondent’s time with the child be henceforth supervised by an agreed upon supervision agency that prepares written reports.
5.The cost of the supervision pursuant to Order 4 herein is to be solely borne by the Respondent.
6.Leave is granted to the Respondent to produce to any treating health or mental health professional a copy of the interim reasons for judgment once published, if he chooses.
THE COURT NOTES THAT:
A.An oral application was made by the Independent Children’s Lawyer and supported by counsel for the mother, to adjourn the proceedings to allow time for the further issuance of subpoena in light of the evidence produced today relating to the Respondent’s mental health. Counsel for the Respondent opposed the matter being adjourned.
B.Nothing in these orders prevents the child from spending time with the Respondent and extended family, albeit under supervision. There is no reason why the child should not continue to have the benefit of spending time with his family unit.
C.The Court would be assisted by expert evidence in relation to the Respondent’s mental health and would be grateful if the Legal Aid Commission of New South Wales would assist in funding same.
“A”
FAMILY LAW ACT 1975IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) / (DVISION 2)
File No. WOC705/2019
BETWEEN
MS CARTER
(Applicant)
andMR SHAHID
(Respondent)CONSENT ORDERS
BY CONSENT IT IS ORDERED
1.That the matter be adjourned until to 5 May 2024 at 10:00 am.
2.That the parties be at liberty to issue as many subpoenas as they deem necessary.
3.That the father be at liberty to file and serve an affidavit by 4.00pm 31 January 2025 limited to the father’s health.
4.That the father any Amended Response which he may rely upon by 4.00pm on 31 January 2025
5.That the mother file and serve an any amended application and/or affidavit in reply which the mother may rely upon to the father’s affidavit in relation to his health by 4.00pm
1421 February 2025.6.That the father be injuncted and restrained from this discussing the family law proceedings with any other person other than his legal representative and his treating health and mental health professionals.
7.That the father provide to the Applicant and the ICL under Federal Circuit and Family Court Rules 6.05 (2(c)) within 7 days of the date of these orders information in relation to the following including name of such persons and contact details:
a.Medical Practitioners or medical centre which he has sought treatment from since 2019 including but not limited to psychiatrist, psychologist, counsellor, therapist or specialist medical practitioner.
b.Any hospital or facility that the father may have attended including but not limited to as inpatient or outpatient.
c.Any group and individual therapy sessions.
d.Any reports from a medical practitioner, psychologist, psychiatrist, counsellor, therapist or specialist medical practitioner.
e.Any reports from any insurance company about the father’s health.
f.Any future appointments or recommendations or referrals to any medical practitioner, psychologist, psychiatrist, counsellor, therapist, hospital, facility or specialist medical practitioner.
8.That the parties have liberty to relist the matter with 48 hours’ notice.
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 Carter & Shahid has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I provide the following brief ex-tempore reasons. This case is about X, born in 2018 (“X”), who is now six years old. X is the much-loved son of his mother, who is the Applicant in these proceedings (“the mother”), and his father, who is the Respondent (“the father”). Regrettably, X has been involved indirectly in proceedings about him for most of his life.
Those proceedings came before me on 9 December 2024, that is Monday this week, for final hearing. The mother and the father are represented by a solicitor and counsel, and X was represented by a very experienced Independent Children's Lawyer, and experienced counsel for the Independent Children's Lawyer.
This morning, on day three of the proceedings, pursuant to an order I made for the father yesterday whilst he was being cross-examined, the father produced a bundle of documents relating to his mental health and treatment thereof. That bundle became Exhibit R2.
By way of summary, the information that was disclosed by the father was largely new, and to a certain extent, inconsistent with evidence that he had given in his affidavit filed 25 November 2024, the cross-examination about the nature and extent of his mental health issues, and the medication that he was taking. Again, by way of summary, the material produced by the father suggests that he has been treated for depression, anxiety and a post-traumatic stress disorder for some years in the post-separation period. These conditions have multiple possible causes. A likely one is his service as a public servant in the New South Wales Public Service. Also, the stresses of a relationship with the mother, which the Court is able to observe after hearing both the mother and father in cross-examination. It was clearly a tumultuous and difficult relationship for both of them. There may, I accept, also be other causes.
The disclosure of this new evidence precipitated a number of consequences, firstly, the Independent Children's Lawyer, supported by the mother, made an oral application for the adjournment of the proceedings, so that the evidence about this issue could be fully considered. I noted the acceptance across the bar table that the evidence was incomplete and that the adjournment would enable a more complete picture of the father's mental health to be obtained.
The adjournment was granted over the opposition of the father. I noted in the ex-tempore reasons I gave for granting the adjournment, that it may not have been in the father's interest to continue the hearing, given the limited information that was available about his mental health.
In any event, the adjournment was granted, and I have made consent orders dealing with the progression of this matter to its finalisation, commencing on 5 May 2025. I note that was the earliest available date, from the perspective of the Court, and from the perspective of counsel, but also taking into account the practical consideration that the mother is expected to give birth to a child in the next few months. She needed to be given some additional time before the resumption of these proceedings.
The Independent Children's Lawyer, again supported by the mother, brought an oral application, that the existing spends time with arrangements be varied. The current arrangements provide for X to spend time with the father for six hours each fortnight on an unsupervised basis. The evidence before the Court, at this time, suggests that that time has been uneventful, largely unproblematic, and has, in fact, been beneficial for both X and the father. The application, however, proposed that that time remain but become supervised by an agreed agency, but not a supervised contact centre.
The father opposed that application. Indeed, he proposed that the Court make an order pending further order that commences overnight time, each alternate weekend from Friday overnight to Saturday. He further sought an order that lifts the restraint that prevents him from attending X's school and, for example, participating in parent-teacher interviews.
I heard submissions from counsel for the Independent Children's Lawyer, mother and father. In addition, I gave the father the opportunity to address me personally. I recognise that this is unconventional, but the circumstances are unusual. I was conscious of the fact that the father suffers from post-traumatic stress disorder, and I sought to create an opportunity for his voice to be heard directly, with the view that, perhaps, this might assist with the trauma that he experiences. Part of which might be attributable, unsurprisingly, to these proceedings.
The case for supervision was that it is both protective of and protective of the father. From a positive perspective, supervision will provide evidence to the Court at the final hearing, that notwithstanding the father's mental health issues, that time with X can be completely unproblematic. The Independent Children's Lawyer, and to a certain extent the mother, emphasised that we are literally in the middle of a final hearing, and that the focus should be to progress this matter to finalisation, as soon as the evidence is complete, but to do so in a context where X is safe.
The argument was made against the father's proposal that to allow his time to become unsupervised anticipates or assumes that there are no safety issues, notwithstanding the incomplete and in some respects inconsistent evidence.
In submissions, I was asked to consider the impact of making the order sought by the father, and, indeed, of not making the order proposed by the Independent Children's Lawyer and on the mother herself. Especially in circumstances where she contends, through her counsel, that the assumptions that she had made in her proposals for the father to have unsupervised time with X were predicated on a belief that the father did not have mental health issues, or mental health issues that would raise concerns about overnight time. Her case is that the information that is now before the Court, and which is found in Exhibit R2, completely changes her understanding of the nature of the risk that is sought to now be managed.
The father, quite understandably, is disappointed, to say the least, that notwithstanding a long track record of successful, indeed uneventful, unsupervised time with X, that this should now, in his eyes at least, regress to supervised time especially in circumstances where the material before the Court suggests that he is, at the very least, engaged with the treatment of the mental health issues that he has experienced. The father's disappointment is completely understandable. There is no issue in this case, as I pre-empted in my opening words, that X is very much loved by the father, and indeed the mother, and appears to reciprocate that love. That is not the issue before the Court.
From a legal perspective, I agree that the legal issue that the case raises is, in effect, whether there is a difference between X now being exposed to a risk of harm by the father if his contact is not supervised, as opposed to making an order that promotes X’s safety. Counsel for the Independent Children's Lawyer made reference to my own decision recently in Melounis & Melounis (No 4) [2024] FedCFamC1F 778.
The documents refer to two possible mental health admissions, one inpatient and one outpatient. The inpatient admission appears from the documents as something that should have happened in the past, and the outpatient is something that, perhaps, was to happen in the near future. If it is that the father has, in fact, been either an inpatient or an outpatient at some form of mental health facility, the Court does not have any evidence about what transpired during such admission.
It seems that for the first time the Court has a clearer picture of what may be the current medication that the father has been prescribed for his mental health condition. We do not know whether he is medication compliant, something that can only be informed by the medical records, as well as the father's own records. That, in itself, means that X's safety cannot presently be promoted by leaving the current order in its present form. There are too many things not known about the father's mental health and its impact on his daily life.
There are other concerns the Court has that have not been directly raised in submissions today. It seems implausible, given the nature and extent of the father's engagement with his mental health treaters for a number of years, that his wife would be unaware of it, but she too provides no evidence about the same. I raise that, because in my mind, I had considered the possibility of his wife being the supervisor, even though it was not proposed by any of the parties. The absence of any reference to this in her evidence is of concern to me, and again leads me to the conclusion that the only order in the circumstances that promotes X's safety, is one that imposes the need for supervision.
The father, quite courageously and frankly, spoke directly with the Court. His words were powerful and moving, but likewise, I spoke directly with him, and specifically about the theme of trust, and how the Court needs to be able to trust that parents are frank in the material that they put before the Court, so that appropriate best interest orders can be made. The concept of trust is, I gathered, one that is not unfamiliar to a person who has served in the New South Wales Public Service. I also explained to the father, however, that the trust can be regained. The order proposed by the mother and Independent Children's Lawyer provide just that opportunity. Supervision will reassure the Court that, notwithstanding the mental health issues that the father experiences, and the treatment with which he is engaged, he is still able to have a happy and safe engagement with X, who he loves so much.
On balance, and noting that whilst the evidence is not complete, I have had the opportunity to hear evidence from the mother in totality, and from the father in part. I'm satisfied that the orders proposed by the Independent Children's Lawyer are the orders that promote the safety of X, and for the time being are in his best interests.
It is deeply regrettable that these long running proceedings will be extended for about six months. It may well be that before the hearing resumes on 5 May 2025, the evidence before the Court will provide a clearer picture about the safety issues, to which I have mentioned in these, my ex-tempore reasons.
On that basis, I am simply making the observation that the leave granted in the order that I made today, that the parties have liberty to re-list the matter within 48 hours' notice, may be the springboard from which the father seeks to ask the Court to revisit the issue of whether his time with X should be supervised. In short, it may not be necessary to wait six months.
I note, in fact, that this creates an incentive for the father to do two things. Firstly, to ensure that the Court is appraised with all evidence about the mental health issues that he experiences, the causes and source of those issues, and his response and treatment to them. The second incentive is that he remains engaged with X who he loves so very much, and who loves him just as much.
In the father's distress today, he averted or alluded to the possibility that he might disengage. I think, and hope, that that was the disappointment and hurt that was speaking, rather than clear thinking, which I hope will return with the benefit of reflection. Accordingly, pending further order, the father's time with X be henceforth supervised by an agreed supervision agency that prepares written reports conducted at the expense of the father.
I note that nothing in my order prevents X from spending time with the father and family, albeit under supervision. There seems no reason why he should not continue to enjoy the benefits of, for example, spending time with his siblings.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 December 2024