Darwish & Hakeem

[2021] FCCA 1421

FEDERAL CIRCUIT COURT OF AUSTRALIA

Darwish & Hakeem [2021] FCCA 1421

File number(s):

MLC 428 of 2012

Judgment of:

JUDGE BENDER

Date of judgment:

20 May 2021

Catchwords:

FAMILY LAW – parenting – the parties’ applications in relation to interim parenting arrangements for their two children aged 13 and 11 – where the Father and the Independent Children’s Lawyer seek the children live with the Father and spend time with the Mother – the Father alleges the Mother’s untreated mental health impacts her ability to care for the children – the Mother maintains she is able to care for the children – the Mother has been the children’s primary carer for 10 years until recently.

HELD – orders made on an interim basis for the children to live with the Father and spend substantial and significant time with the Mother – Mother to obtain psychiatric assessment – updated Family Report to be obtained – trial directions made

Legislation:

Family Law Act 1975 (Cth) s 60CC

Cases cited:

Goode & Goode [2006] FamCA 1346

Number of paragraphs:

42

Date of hearing:

20 May 2021

Place:

Melbourne

Solicitor for the Applicant:

MDL Law

Solicitor for the Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children’s Lawyer

Mr Gardiner

Solicitor for the Independent Children's Lawyer:

McCormack and Co

ORDERS

MLC 428 of 2012

BETWEEN:

MR DARWISH

Applicant

AND:

MS HAKEEM

Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	20 MAY 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to 3 November 2021 at 10.00am for final hearing before Judge Bender (with an estimated hearing time of 3 days) with priority.

2.Order 5 of the Orders made by Judge Riethmuller on 25 March 2021 be discharged.

3.Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the children of the relationship X born in 2007 (“X”) and Y born in 2010 (“Y”) attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at times to be advised for the purposes of the preparation of an updated family report to be released by 29 September 2021 and it is requested that such updated family report be prepared by Sue Adams if possible as she prepared the family report being updated.

4.The family report deal with the following matters:

(a)any views expressed by X and Y and any factors (such as X and Y’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)whether the Mother’s mental health issues are such they impact on her ability to care for X and Y;

(c)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

(d)any other matters that the family consultant considers important to the welfare or best interests of X and Y.

5.The Mother authorise the family report writer to speak to her treating mental health practitioners.

6.The family report writer is requested to speak with the Mother’s treating mental health practitioner Dr B.

7.In the event the parties’ address, contact telephone number and/or email address change prior to the family report interviews, they are to notify the Court via email on [email protected] as soon as practicable following the change.

8.The parties or their solicitors send copies of the following documents to the family report writer within seven days of being notified of the details of the family report writer:

(a)all of their Court documents filed in these proceedings;

(b)the psychiatric assessment of the Mother;

(c)any information provided to the Court by the Department of Families, Fairness and Housing in response to a Notice of Child Abuse, Family Violence or Risk pursuant to s.67Z of the Family Law Act 1975 (Cth) and forwarded to the parties; and

(d)any information provided to the Court by the Department of Families, Fairness and Housing with respect to an Order made by the Court pursuant to s.69ZW of the Family Law Act 1975 (Cth) which has been subsequently released to the parties by Order of the Court pursuant to ss.69ZW(5) of the Family Law Act 1975 (Cth); and

(e)the letter from Dr B to Dr C dated 12 May 2021.

9.The family report writer have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.

10.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11.Unless a party objects in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of X and Y:

(a)a Children’s Court;

(b)a child protection authority;

(c)a State or Territory legal aid authority; and

(d)a convener of any legal dispute resolution conference.

12.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13.Orders 3 and 4 of the Orders made by Judge Riethmuller on 25 March 2021 be discharged.

14.The Mother shall attend upon a forensic psychiatrist nominated by the Independent Children’s Lawyer to obtain a psychiatric report and it is requested that the Independent Children’s Lawyer and the Mother do all things necessary to make application to Victoria Legal Aid to fund such assessment and report, such assessment and report to be completed by no later than 15 September 2021.

15.In the event Victoria Legal Aid fail to provide funding for the Mother’s psychiatric report as set out in Order 24 herein, the Mother shall fund the cost of such report.

16.The Independent Children’s Lawyer is requested to provide a copy of the Mother’s psychiatric report to the family report writer immediately upon its release.

17.The Independent Children’s Lawyer is to provide the psychiatrist appointed pursuant to Order 24 herein with all documents the Independent Children’s Lawyer considers relevant to the psychiatric report, including but not limited to court documents, documents from their own enquiries, subpoenaed documents and the correspondence made available to the Court by the Mother’s treating psychiatrist Dr B addressed to Dr C and dated 12 May 2021.

18.The Father file and serve one trial affidavit and one affidavit of each witness including expert witnesses he intends to rely upon at trial, such affidavits to comply with r.15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 6 October 2021.

19.The Mother file and serve one trial affidavit and one affidavit of each witness including expert witnesses she intends to rely upon at trial, such affidavits to comply with r.15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 20 October 2021.

20.The Independent Children’s Lawyer file and serve any further affidavit to be relied upon by 4.00pm on 22 October 2021.

21.Except as already provided by these orders, the parties will not be permitted to rely on any trial affidavit filed after the dates provided for in these orders or file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.

22.By 4.00pm on 27 October 2021 each party and the Independent Children’s Lawyer file and serve an outline of case document with respect to parenting issues including the following:

(a)a list of the documents to be relied upon;

(b)an outline of contentions with respect to:

(i)whether the presumption of equal shared parental responsibility applies (s.61DA),

(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

(iii)each of the considerations relevant to determining the best interests of X and Y (s.60CC factors);

(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(v)any other matters  relevant to the decision; and

(c)a statement of the precise orders sought.

23.The parties and Independent Children’s Lawyer are to confer and prepare a joint chronology in Microsoft Word format setting out all facts that the parties wish the Court to take into account which is to be filed by the Father by 4.00pm on 27 October 2021.

24.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012 (Cth).

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

25.X and Y live with the Father.

26.X and Y spend time and communicate with the Mother as follows:

(a)each alternate weekend from after school on Friday until before school on Monday commencing on 28 May 2021;

(b)subject to Order 27 herein, for one week in each of the school term holidays as agreed between the parties and failing agreement, such time is to continue from the weekend X and Y are spending time with the Mother pursuant to Order 26(a) herein such that they spend time with the Mother from 3.30pm on Friday until 3.30pm on the following Friday; and

(c)as otherwise agreed between the parties in writing.

27.X and Y’s time with the Mother pursuant to Order 26(b) herein is conditional upon the Mother not being at work and therefore being available to care for X and Y at all times during the holidays. If the Mother is unable to take time off work, X and Y’s time with the Mother shall continue during the holidays in accordance with Order 26(a) herein.

28.The Mother shall continue to attend upon her treating psychiatrist Dr B and such other treaters as recommended by Dr B as she is directed to by him.

AND THE COURT NOTES THAT:

A.If the Mother is unable to or fails to obtain an independent psychiatric assessment as required under Order 14 herein, the matter will proceed to be heard on 3 November 2021 and the updated family report is to be prepared.

B.At the date on which a copy of the Family Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

D.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 8 herein, they shall write to the Chambers of Judge Bender seeking that the matter be listed on short notice for their objection to be heard.

E.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to the filing of documents or any other procedural issues, the matter will be urgently listed before a Registrar where:

(a)the application may be struck out;

(b)the proceedings may be directed to proceed undefended;

(c)the trial date may be vacated; and

(d)orders may be made that the non-complying party pay the costs arising from their non-compliance.

F.In the event a party fails to file an outline of case document 7 days prior to the hearing date as ordered, that party’s documents will not be included in the trial book prepared by Chambers and the complying party will have leave to seek any costs arising from the failure to file.

G.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

H.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

I.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

J.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

K.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 Annexure and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Darwish & Hakeem is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BENDER:

Introduction

1. This matter has been before the Court for a lengthy period of time. The current application was filed on 11 July 2019. The matter had a final hearing listed on 25 March 2021 before Judge Reithmuller but was unable to proceed because at that time the parties had not filed any trial material. The parties were then self-represented. There was no current information before the Court and His Honour was therefore not in a position to hear the matter and determine an appropriate outcome.

2. The Father filed an Amended Initiating Application on 1 April 2021 in which he sought interim orders that there be a change of the then existing arrangements for the parties’ two sons X born in 2007 (“X”) aged 13 years and Y born in 2010 (“Y”) aged 11 years such that they live with him.

   Background

3. The parties have been separated since 2011. Since that time, X and Y have lived in the primary care of the Mother and spent regular time with the Father. This was varied frequently by agreement between the parties despite there being longstanding orders for X and Y’s care in place. 

4. In the lead-up to the Father’s application for a change of residence there were two major events.

5. The first was a serious incident of self-harm by the Mother in November 2020.

6. The second was the Mother travelled to Country D for a quite lengthy period of time because of her father’s ill health, leaving X and Y in the care of the Father for many weeks. This time was longer than initially planned by the Mother as her return to Australia was delayed because of COVID-19.

7. The interim application for a change of residence came before Senior Registrar Hoult on 8 April 2021. On that occasion Senior Registrar was advised there had been a second incident of serious self-harm by the Mother in March 2021. This did not in fact occur. The Senior Registrar was advised of this because of an erroneous reading of the Mother’s medical records that had been subpoenaed by the Independent Children’s Lawyer.

8. Senior Registrar Hoult made orders for X and Y to live with the Father and to spend time with the Mother on alternate weekends.

9. The Mother has sought to review Senior Registrar Hoult’s decision and that is the application that is before the Court today.

10. A review of a decision of a Registrar is a hearing de novo and is based on all the evidence that is available to the Court at the time of the hearing before the Court. The Court is not bound to find an error of law by the Registrar, but rather to make its own independent determination of what orders are in the best interests of X and Y.

    The Father

11. The Father seeks orders that X and Y continue to live with him and spend alternate weekends with the Mother. This is supported by the Independent Children’s Lawyer.

12. The position of the Father and the Independent Children’s Lawyer is that the Mother’s conceded longstanding untreated mental health issues are such that this Court must have concerns that X and Y are at risk in the Mother’s care until her mental health issues are properly attended to by her.

13. The Father further argues that the Mother’s decision to travel overseas for a lengthy period of time and leave X and Y for that time was not in their best interests.

14. It is the Father’s evidence that whilst the Mother was working as a public servant she would leave X and Y at home alone unsupervised for considerable periods of time whilst undertaking her employment.

15. The Father also raises concerns in relation to the quality of care that the Mother provides noting that there have been issues of X and Y not attending school, lack of supervision and poor hygiene and day to day care.

    The Independent Children’s Lawyer

16. The Independent Children’s Lawyer supports the Father’s application.

17. It is submitted on behalf of the Independent Children’s Lawyer that there are still many unknowns in relation to the Mother’s capacity to provide full-time care to X and Y. These include issues of her commitment and preparedness to undertake ongoing treatment for longstanding mental health issues.

18. The Independent Children’s Lawyer is also concerned that the Mother’s current employment status is unknown which would impact on her ability to care for X and Y. In the correspondence of the Mother’s psychiatrist Dr B tendered into evidence, he writes that the Mother is currently unemployed and pursuing employment in health care.

19. The view of the Independent Children’s Lawyer is that whilst the Mother is clearly stating her intentions to address her mental health issues and engage properly and appropriately with her treaters, such engagement is yet to happen and it is too early to have confidence that the Mother will do so. Because of this it is unknown whether the Mother’s mental health will stabilise and will be properly managed such that she is able to be the primary carer of X and Y.

    The Mother

20. It was submitted on behalf of the Mother that X and Y should be returned to her care.

21. Until the orders of Senior Registrar Hoult in April 2021, the Mother was X and Y’s primary carer for nearly 10 years. Despite there being some issues in relation to her mental health, it was submitted that the Father has not historically at any time challenged her capacity to care for X and Y. It was submitted that after the very serious incident in November of last year, the Father was content to return X and Y to the Mother’s care. It is argued that this shows the Father believed X and Y were not at risk in the Mother’s care notwithstanding her mental health issues.

22. The solicitor for the Mother submitted that the Mother now fully understands and accepts the necessity for her to properly address her mental health issues, this having been brought home to her as a result of the orders that were made by Senior Registrar Hoult in April 2021.

23. It is the Mother’s evidence that she will do everything recommended by her treaters to manage her mental health now that she understands that failure to do so means she will not have the primary care of X and Y.

24. The Mother’s solicitor submits that it is the Mother’s intention to continue to attend upon Dr B, that she has an appointment with him in four weeks’ time and that she will otherwise follow his directions including undertaking his recommendation for Dialectical Behaviour Therapy.

    The Evidence

25. There is a family report in this matter that was prepared in October 2020 that recommended that X and Y continue to live with the Mother. The difficulty with this report is it predates the very serious self-harming incident of the Mother in November 2020. It also appears that the Report Writer did not have before her the full history of the Mother’s mental health issues.

1. When the matter came before Judge Riethmuller, he indicated that in order for this matter to be heard there needed to be a psychiatric assessment of the Mother followed by an updated Family Report so that the recommendations of the Report Writer fully reflects the totality of the circumstances of both parties. The Report Writer clearly needs to have all relevant information in relation to the parties in order to properly assess the best interests of X and Y.

2. The Mother’s solicitor has indicated that the Mother is going through the process of providing Victoria Legal Aid with their requested information in the hope that she will qualify for Legal Aid. If she does, Legal Aid may fund the psychiatric assessment. The Mother’s solicitor advised that if she is unsuccessful in obtaining Legal Aid, she will do everything in her capacity to fund such an assessment herself.

3. More importantly, the Mother’s solicitors advised the Mother will do everything in her capacity to fund her ongoing mental-health care given, sadly, the public system has not provided her with the assistance that she properly needs.

4. For the purposes of today’s hearing, tendered into evidence with the consent of all parties was a letter from the Mother’s now psychiatrist, Dr B dated 12 May 2021. Dr B states in his letter:

   “She is a 34-year-old mother of two kids who lives by herself and is currently unemployed.

   Ms Hakeem reports feeling much better since November 2020 when she was assessed and treated by a Psychiatrist at E Clinic.

   …

   In the past she was seen by Dr F at E Clinic (most recently in November 2020) with a 3-4 year history of depressive symptoms and affective instability in context (sic) of psychosocial stressors and poor relationship with mother. She had had at least a couple of suicidal attempts (cutting, overdose with prescribed medications) leading to hospital admissions. She was diagnosed with recurrent depression and borderline personality disorder and treated with antidepressants (tolerability issues with duloxetine, could not continue agomelatine due to affordability issue, eventually responded to desvenlafaxine). She was also recommended DBT.

   …

   Diagnosis

   Borderline personality disorder

   ? Persistent depressive disorder

   Management Plan

   Diagnosis and management plan were discussed with Ms Hakeem.

   I advised her to continue desvenlafaxine at the same dose as Ms Hakeem finds it helpful and her symptoms are under control presently. Also, she has tolerated it well.

   …

   Mainstay of treatment for Ms Hakeem should be psychological treatment like dialectical behaviour therapy (DBT). I advised her about DBT Skills Training Handouts and Worksheets as a self-help resource. I have made a referral to BPD groups at E Clinic; accessing this group will attract some out-of-pocket expenses. If this is not viable, Ms Hakeem may be referred to a clinical psychologist under mental health care plan.

   …

   The Children

5. This matter came before me 5 May 2021 and at that time I asked the Independent Children’s Lawyer to meet with X and Y to ascertain how things were progressing for them since the orders for them to live with their Father were made. I accept that feedback is not a forensic examination by a child psychologist. However I note that these are not young children who are incapable of talking to the Independent Children’s Lawyer and telling him how they feel.

6. X and Y initially told the Independent Children’s Lawyer that they were okay continuing to live with Father. They subsequently told him “well, actually, maybe what we would like to do is live week-about with both of our parents.” Whether this is coming from a place of wanting to be fair to both Mum and Dad, whether this is coming from a place of missing Mum, I do not know. That is the difficulty I have in the absence of an updated Family Report.

   Conclusion

7. Any decision that is made in relation to orders for the parenting of children under the Family Law Act 1975 (Cth) (“the Act”) must be based on the primary consideration being the best interests of the children, whether those orders be interim or final orders.

8. The Full Court in the matter of Goode & Goode [2006] FamCA 1346 held that a decision for interim parenting matters should take into account the matters under s.60CC of the Act, albeit that it needs to be recognised the limitations of an interim hearing given that evidence is unable to be tested.

9. The primary consideration under s.60CC of the Act as set out in subsection (2) is that the best interests of the children are being met by them being able to have a meaningful relationship with both their parents, subject to the children are not being placed at risk of harm, either physically or emotionally.

10. The secondary considerations to be considered are set out in s.60CC(3) of the Act. They include the wishes of the children, given their age and maturity, the relationships that they have with both their parents and the practical realities of arrangements that are put in place.

11. The primary issue in determining this matter today is whether X and Y are at risk if they remain living primarily with the Mother, who has been their primary carer for the last 10 years, given the concerns in relation to her untreated mental health issues and the other practical matters to which I have made reference in this judgment.

12. It is apparent from the evidence before the Court that the Mother has had longstanding mental health issues. That is, in and of itself, not something that should prevent her or any other person suffering from mental health issues from being the primary carer of a child. It is, however, incumbent upon someone with mental health issues, as it is for any person suffering serious health issues that impact on their functioning, to ensure that they are properly attending to, and having treated, those health issues.

13. In this matter the Mother has had longstanding mental health issues. For a variety of reasons she has not engaged in the ongoing targeted treatment required to assist her to be as well as she can be. In part, the reason for this has been financial; she has not been able to afford to do so. It has also however been in part because she has not recognised and prioritised the necessity for her to do this.

14. On her own evidence it has taken the intervention of the Court to make the Mother realise that she needs to be taking care of herself much better than she has been to date. She is now committing to doing so, primarily because she wants X and Y back with her, though I would hope she also realises that it is just as important she does this for herself.

15. Having considered all the evidence before me, I am of the view that on an interim basis, the best interests of X and Y are met by them living with the Father and spending regular time with the Mother, including holiday time. Whilst the Mother has clearly indicated she will engage in the treatment recommended by Dr B to assist her mental health stability, she is as yet to do so. Until she does, there must remain a genuine concern that her mental health will  relapse and thus place X and Y at risk if in her primary care.

16. I am concerned that this matter appears to be in limbo. The orders made today are not necessarily what the final orders would be once all the relevant information is before the Court.

17. I will therefore retain this matter in my docket and make relevant orders to enable this matter to be heard on a final basis this year.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.

Associate:

Dated:       24 June 2021