Darwish & Hakeem

In the matter of *Darwish & Hakeem*, Bender J of the Federal Circuit Court of Australia considered an application by the Father seeking to change the existing parenting arrangements for the parties' two sons, X (born 2007) and Y (born 2010), to have them live with him. The parties had been separated since 2011, with the children primarily residing with the Mother and spending regular time with the Father, although these arrangements had been frequently varied by agreement. The Father's application followed two significant events: a serious incident of self-harm by the Mother in November 2020 and a subsequent lengthy period where the Mother travelled overseas, leaving the children in the Father's care.

The central legal issues before the Court were whether the children were at risk in the Mother's primary care due to her conceded longstanding mental health issues and other practical concerns raised by the Father, and consequently, what orders were in the best interests of X and Y. The Court was required to determine the appropriate parenting arrangements, considering the matters set out in section 60CC of the *Family Law Act 1975* (Cth), including the children's wishes, their relationships with each parent, and the practical realities of any proposed arrangements, while acknowledging the limitations of an interim hearing where evidence is not tested.

Bender J reasoned that while mental health issues in themselves do not preclude a parent from being a primary carer, it is incumbent upon individuals with such issues to ensure they are properly treated. The Court noted the Mother's longstanding mental health issues, including recurrent depression and borderline personality disorder, and her failure to engage in consistent, targeted treatment, partly due to financial constraints and a lack of prioritisation. The Court acknowledged the Mother's stated commitment to addressing her mental health, influenced by the desire to have the children return to her care. The Court also considered the children's expressed wishes, which had evolved from being content to live with the Father to expressing a desire to live week-about with both parents, highlighting the difficulty in making a definitive decision without an updated family report.

The Court ordered that the matter be adjourned for a final hearing, with priority, on 3 November 2021. Crucially, the Court ordered that the parties and the children attend upon a family consultant for an updated family report, to be prepared by Sue Adams if possible, addressing specific matters including the children's views, the impact of the Mother's mental health on her parenting capacity, and the factors outlined in sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975* (Cth). The Mother was directed to authorise her treating practitioners to speak with the report writer and was ordered to attend a psychiatric assessment, with funding arrangements to be pursued through Victoria Legal Aid or personally if necessary. The children were ordered to live with the Father and spend time with the Mother on alternate weekends and for one week during school holidays, subject to specific conditions regarding the Mother's availability. The Court also made detailed procedural orders regarding the filing of affidavits, outlines of case, and a joint chronology, and noted the potential consequences of non-compliance.