Dawbar & Hixson
[2023] FedCFamC1F 900
•23 October 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Dawbar & Hixson [2023] FedCFamC1F 900
File number(s): BRC 8189 of 2022 Judgment of: HOGAN J Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – INTERIM – PARENTING – INTERNATIONAL REOCATION – Where the mother seeks to relocate the children to live in Country B for 18 months – Where the father opposes that application – Where the father has significant mental health issues – Where the children are currently spending supervised time with the father – Where relocation of the children to Country B until mid-2025 is found to be in the children’s best interests Legislation: Family Law Act 1975 (Cth) Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: First Instance Number of paragraphs: 45 Date of hearing: 15 September 2023 Place: Brisbane Counsel for the Applicant: Mr Hanlon Solicitor for the Applicant: O’Sullivans Law Firm Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Fuller Solicitor for the Independent Children's Lawyer: JR Burns Law Pty Ltd ORDERS
BRC 8189 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HIXSON
Applicant
AND: MS DAWBAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 OCTOBER 2023
IT IS ORDERED BY WAY OF INTERIM ORDER THAT:
1.All previous interim parenting orders are discharged.
2.The children, X, born 2010, and Y born 2012, live with the mother.
3.The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4.Other than in emergency circumstances, the mother, prior to making a long-term decision, shall:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter.
5.The mother is at liberty to relocate the children to live with her temporarily in Country B, and for this purpose the children are permitted to leave the Commonwealth of Australia, provided that:
(a)the mother does not remove the children from Australia before a specified date in early 2024; and
(b)the mother ensures that the children return to live in Brisbane no later than a specified date in mid-2025.
6.Until the children depart Australia for Country B, they shall spend supervised time with the father, with such time to be supervised either by an independent adult supervisor agreed by the parents in writing or, failing that, at a Contact Centre agreed between the parents in writing and, subject to availability, as follows:
(a)for up to four (4) hours per week at such times and day that the independent supervisor or Contact Centre may direct; and
(b)to celebrate Christmas Day (on a day between the parties and that the Contact Centre can accommodate), for up to four (4) hours at such times and on such days that the independent supervisor or Contact Centre may direct.
7.After the children move to live in Country B, they shall spend supervised time with the father at all reasonable times as may be agreed between the parents in writing and failing agreement as follows:
(a)in Australia, for twelve (12) hours during three of the Country B school holiday periods each year, with the mother:
(i)to provide six (6) weeks’ notice in writing of the travel dates; and
(ii)to be responsible for the costs of the children’s flights to and from Australia.
(b)on any occasion the father is in Country B, for four (4) hours per week, with the father:
(i)to provide six (6) weeks’ notice in writing of the travel dates; and
(ii)to be responsible for the costs of his flights to and from Australia.
(c)in the event the father moves to live in Country B at a place reasonably proximate to where the children are living, for four (4) hours per week.
8.In order to facilitate the children spending supervised time with the father, any independent adult supervisor agreed between the parents in writing shall provide an undertaking in the terms of Notation A to the Order made on 23 November 2022 to the Independent Children's Lawyer before that person supervises the children's time with the father.
9.The father shall communicate with the children by telephone, Skype, FaceTime or other similar means not less than one day per week at such time as agreed by the parents in writing and on the children’s respective birthdays and on Christmas Day and, in order to facilitate this:
(a)the mother shall initiate the communication; and
(b)the mother shall make the children available to receive the communication; and
(c)the mother shall arrange for the children to contact the father fifteen (15) minutes later if, for any unforeseen circumstance, the father misses the communication.
10.The children are at liberty to communicate with the father at all reasonable times and, to the extent that it is necessary, the mother shall facilitate such reasonable communication.
11.During the time the children spend time with or communicate with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
12.Upon receiving a copy of this Order, the Australian Federal Police shall remove the names of the children, X, born 2010, and Y, born 2012, from the Airport Watchlist at all points of international arrival and departure in Australia.
13.Pursuant to section 68B of the Family Law Act 1975 (Cth):
(a)the father is restrained and an injunction issue restraining him from taking any action, or causing any other person to take action to place the names of the children X born 2010 and Y born 2012, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia following the removal of the names from the same; and
(b)the father is restrained and an injunction issue restraining him from approaching or coming within 100 metres of any place where the children might reside from time to time; and
(c)the father is restrained and an injunction issue restraining him from approaching or coming within 100 metres of any place where the children attend school.
14.The mother and father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number and of any changes within forty-eight (48) hours of any change occurring; and
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c)inform the other parent as soon as reasonably practicable of any significant medical condition, significant health issue or serious illness suffered by the children.
15.By this Order, any treating medical practitioner or allied health professional is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by either child as they are lawfully able to provide about the child.
16.By this Order, any school, educational facility or extra-curricular activity provider at which a child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child, including any school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child.
17.If there is a cost associated with the provision of any information or documents by a child’s doctors, health care and other treatment providers or school, educational facility, or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
18.In the event that any party seeks an order that another party pay the costs of and incidental to the Amended Application in a Proceeding filed 28 June 2023:
(a)any such party shall, within fourteen (14) days of today, file and serve written submissions in support of such application for costs; and
(b)the party against whom an order for costs is sought shall, within a further seven (7) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
19.All outstanding applications for interim parenting orders are otherwise dismissed and removed from the list of cases requiring finalisation.
20.Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Dawbar & Hixson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those interim parenting orders which are in the best interests of thirteen-year-old X, who was born in 2010, and eleven-year-old Y, who was born in 2012.
The mother wishes to remove the children from Australia to live with her in Country B, located approximately two and a half hours in flight-time from Australia, for a period of approximately 18 months; they would return to Australia by no later than mid-2025.
I accept that the mother first advised the father of her desire to relocate the children to live temporarily with her in Country B on 14 April 2023 and that she provided him with further details of her proposal on 17 April 2023.[1] As a consequence, the father sought that the children’s names be placed on the watchlist maintained by the Australian Federal Police at all points of international arrival and departure in Australia.
[1] Affidavit of the father filed 11 September 2023, paragraphs 221, 222.
Whilst the Independent Children's Lawyer generally supports the mother’s application, the father opposes it.
The children have always lived with the mother and it is agreed that they continue to do so. They previously spent time with the father for three nights each week as a result of parental agreement without the necessity for court intervention.[2] This time was suspended in mid-2022 as a result of the father’s declining mental health and subsequent involuntary admission to the C Hospital.[3]
[2] Child Impact Report filed 8 March 2023, paragraph 11.
[3] Child Impact Report filed 8 March 2023, paragraph 12.
On 23 November 2022, a senior judicial registrar made interim parenting orders (the November 2022 order) by consent. The terms of the November 2002 order included that:
(a)the mother have sole parental responsibility for the children in relation to decisions concerning their education and schooling, and health and medical treatment; and
(b)the mother advise the father in writing of the decision intended to be made, seek his response and consider taking into account the children’s best interests and any response from the father before making a decision: once a decision is made, the mother must advise the father as soon as practicable; and
(c)the children live with the mother; and
(d)the father have supervised time with the children at a Contact Centre for up to four hours per week; and
(e)the parties facilitate the children’s communication with the father at all times requested by the children.
After the November 2022 order was made, the children resumed spending time with the father, albeit under supervision.[4]
[4] Child Impact Report filed 8 March 2023, paragraph 14.
As well as opposing the children moving to live in Country B on a temporary basis, the father seeks that the supervision currently imposed over his time with the children is removed.
Whilst the father sought to delay the resolution of the mother’s application to allow:
(a)a psychiatric assessment of him to be obtained; and
(b)for the preparation of a Family Report; and
(c)his legal representatives to investigate the potential for orders to be made by the Supreme Court of Country B to mirror whatever parenting orders are made by this court in its determination of the mother’s application,
I am not persuaded, for the reasons which follow, that the children’s best interests will be served by delaying the resolution of the mother’s application for interim parenting orders any further.
The November 2022 order required the father to file and serve a report from his treating mental health care provider, with such report to include: the father’s mental health diagnosis; the prognosis for treatment; the proposed treatment; the father’s compliance with the treatment; and other information that the health care provider considered relevant to the father’s capacity to care for the children.
On 12 January 2023, the father filed an affidavit to which is exhibited correspondence, dated 5 December 2022, from Dr D, a Psychiatric Registrar at the E Hospital writing on behalf of Dr F, Psychiatrist.[5] This correspondence outlined that: the father’s primary diagnosis is a mental health disorder; he regularly attends the G Health Centre without prompt for his treatment; the father appeared compliant with his oral medication; his father’s prognosis was dependant on medication compliance; he had been engaging well with his medication, which was protective against potential relapse.
[5] Affidavit of the father filed 12 January 2023, p 5.
On 25 March 2023, the father filed a further affidavit to which is exhibited correspondence, dated 17 March 2023, from Dr F, a Consultant Psychiatrist at E Hospital.[6] In this correspondence Dr F stated that the father was being treated by the hospital and had been known to the service since 2012, during which time he had required two admissions. Dr F said the father did not require care from 2016 to 2020 and remained stable for approximately six years; he also asserted that, during the periods the father was not being managed by the hospital, he had engaged with a private practitioner. Dr F said that, after the father was released from involuntary admission, he had remained in a stable condition: he became a voluntary patient in late 2022 and remained the same as at the date of the correspondence. Dr F said the father had complied with his medication, had attended all medical and case management reviews, and posed no management concerns to the hospital.
[6] Affidavit of the father filed 25 March 2023, p 10.
To the extent that the correspondence from Drs D and F does not address the matters raised by the November 2022 order, I consider that the father has had ample time to obtain an appropriate report from whomever he chose to address such issues.
The children have already been interviewed during these proceedings. They were interviewed on 1 March 2023 by Ms H, a Court Child Expert, for the preparation of a Child Impact Report. Whilst Ms H did not deal with the issue of the mother’s proposed temporary relocation of the children to Country B, I must, in determining the conduct of the proceedings, consider the impact that the same may have on the children.[7] I am not persuaded, having regard to this and to the contents of Ms H’s report, that it is necessary for the children to be interviewed again before a decision is made about the mother’s proposal that they move with her to live in Country B on a temporary basis until mid-2025.
[7] Family Law Act 1975 (Cth), ss 69ZM; 69ZN(2) & (3).
The father did not adduce any evidence about the law of Country B; there is no evidence about the issue of the capacity of the parents in the circumstances that pertain here to seek mirror parenting orders from the appropriate court in that country.
Given that the mother first raised the issue of the children temporarily relocating to live in Country B with the father on 14 April 2023 and that she filed, on 19 July 2023, a Response to the father’s Amended Application in a Proceeding (filed on 28 June 2023) seeking orders to permit this, I am not persuaded that it is in the children’s best interests for there to be further delay about whether they will be moving to live in Country B on a temporary basis.
I consider that the father has had ample time to obtain a report about his functioning from an appropriate medical expert and to obtain whatever evidence was thought necessary from an appropriate expert about the law in Country B. I am not persuaded that the absence of evidence dealing with these issues means that the discretion should be exercised in favour of the father’s application for an adjournment of the determination of the mother’s application. In arriving at this decision, I have also considered the principle that the proceedings are to be conducted without undue delay[8] and am certain that the children will likely benefit from the resolution of the outstanding applications.
[8] Family Law Act 1975 (Cth), ss 69ZM; 69ZN(7).
Consequently, despite the submissions made by Counsel who appeared for the father, I intend to resolve the competing applications for interim parenting orders.
PRINCIPLES APPLICABLE TO THE DETERMINATION OF THE INTERIM APPLICATIONS
The way a court is required to deal with applications for interim parenting orders is well known and needs no further elucidation, other than to refer to the decisions of the Full Court of this Court in cases such as Goode & Goode[9] and Banks & Banks[10]. As the latter makes clear, it is unnecessary for each of the relevant s 60CC consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[11] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those interim parenting orders which are in the children’s best interests; I have considered all relevant considerations in arriving at my conclusion about those orders which are in their best interests.
[9] (2006) FLC 93-286.
[10] (2015) FLC 93-637.
[11]See: Banks & Banks (2015) FLC 93-637.
The statutory framework within the Family Law Act1975 (Cth) (“the Act”) does not deal differently or specifically with cases involving a proposed relocation of children, whether on a final or temporary basis. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Act, the principles which underpin those Objects[12] and, subject to s 61DA, s 65DAB[13] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[14]
[12] S 60B of the Act.
[13] Parenting plans.
[14] S 65D of the Act.
It is clear that, in deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[15] However, such interests should not be viewed in the abstract or separate from the circumstances of their parents[16]; the statutory exhortation to regard the children’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with the children’s best interests, the former must give way[17] such that the determination of those orders which are in the children’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance and, from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever that parent chooses to live, such right must defer to the expressed paramount consideration – the best interests (and/or welfare) of the children – if that were to be adversely affected by a movement of a parent.[18]
[15] S 60CA and s 65AA of the Act.
[16]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[17]Ibid.
[18]See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed.
Issues to be resolved
I turn now to consider the various issues that require resolution.
Parental responsibility
The mother sought that the court make an order according her sole parental responsibility for the major long-term issues for the children. The father sought that an order be made according the parents equal shared parental responsibility for the major long-term issues relating to the children.
The father contended the application made by the mother for sole parental responsibility was made whilst he was in hospital and unwell[19] and that he was now well and compliant with his medication and treatment and so it was now in the children’s best interests for their parents to have equal shared parental responsibility for them.
[19] Affidavit of the father filed 11 September 2023, paragraph 80.
The mother contended that the order she sought was in the children’s best interests because, given her previous experience of the father when mentally unwell, she remained concerned that, despite his treating team acknowledging he is compliant with his medication, he lacked the capacity to make sound decisions. She contended he remained afflicted with poor mental health (which on occasion manifested itself in paranoid delusions), lacked insight into his condition and was an unreliable historian and, consequently, should not be responsible for making decisions regarding the children; she also said, amongst other things, that he had previously told the children he has special powers that could cure any illness in a matter of moments by transferring it out of the body and into him for it to disperse into the ground – an assertion she also said had caused issues because Y believed the father was “saving lives”.[20]
[20] Affidavit of the mother filed 22 August 2023, paragraph 103.
As already noted, the parents agreed, in November 2022, that an order be made to accord the mother sole parental responsibility for decisions concerning the children’s education, schooling, health and medical treatment. Given this and the concerns about the father’s mental health and his functioning, which I accept are open on the evidence, I consider that it would not be appropriate in the circumstances for the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them to apply.[21]
[21] Family Law Act 1975 (Cth), s 61DA(3).
As I intend, for the reasons which follow, to make orders to allow the mother to remove the children from Australia and relocate them to live with her in Country B until mid-2025, I consider that it is in the children’s best interests for their mother to have sole parental responsibly for the major long-term issues relating to them because this will remove any possibility that her decision-making power may be somehow circumscribed and that, consequently, there may be some adverse consequences for the children.
In arriving at this decision on an interim basis, I also note that, in making a final parenting order, the court must disregard the allocation of parental responsibility made in an interim parenting order.[22]
[22] Family Law Act 1975 (Cth), s 61DB.
Temporary relocation to Country B
I generally accept the submissions made by the mother and the Independent Children's Lawyer in support of the children being afforded the opportunity to live temporarily in Country B. I accept that they are highly likely to benefit from such an experience. I also accept that living in Country B at any time between early next year and mid-2025 will provide the children with a significant number of direct benefits and, in the sense that they will inevitably benefit if the mother (their agreed primary parent) benefits, a significant number of indirect benefits.
I accept that living in Country B for the time proposed by the mother would enable the children to engage with a culture different to that which is the predominant culture in this country; they would have the opportunity of attending an International Private School; they would likely benefit in the future from the mother’s improved financial situation, which will result from her having the opportunity to work in a tax-exempt country and being able to rent out their home and the fact that, because they will live with the mother’s partner of some four years, their accommodation and utilities costs will be paid by his employer. I also accept that it is highly likely that, as their mother will feel happier and more supported by her partner if they join him in Country B, the children will have the benefit of being parented by a happier and more fulfilled parent who does not feel that she has been prevented from taking up what, in one sense at least, is a reasonably unique opportunity to live, at relatively limited cost, for a defined period in another country and experience all that a different culture has to offer.
I note and accept, in the absence of any evidence to the contrary, that the school at which the children will attend in Country B uses the Australia curriculum. Even if this were not the case, I accept, even on an interim basis, that the mother will ensure that the children’s education is not adversely affected by moving to live in another country for approximately 18 months.
I accept that having regular and frequent video calls with the father whilst they are in Country B and returning to Australia to spend time with him here during three school holiday periods per year (as well as spending time with him in Country B if he chooses to travel to that country between early 2024 and mid-2025) will enable the children to maintain a meaningful relationship with their father during the time they are absent from Australia. Whilst they will not spend time with him in-person as frequently as they have to date, I am not remotely persuaded that the children will “lose” their father if they have the opportunity to immerse themselves in Country B culture for about 18 months.
I am satisfied, even on an interim basis, that – as she has done for all of the children’s lives to date – the mother will take appropriate seps to manage the children’s health and any other issues that may arise in Country B. In addition, as the mother and children are going to live with the mother’s partner, who is a member of an Australian public service body presently operating in Country B, I am confident that the mother and children will have access to the best medical facilities available. I accept that, as the mother and children will be insured through the Australian public service body to which her partner belongs, they will be able to be medevacked from Country B if needed; as they will be sponsored by the Australian government during their residence in Country B, they will have that protection also, should any geopolitical events occur that pose a risk to citizens of other countries then present in Country B.
I am confident that the mother will be able to manage competently any unforeseen occurrence – such as the end of her relationship with her partner or the loss of employment in Country B – in a manner that prioritises the children’s best interests.
Whilst Country B is not a party to the Hague Convention, I am not persuaded that it is likely the mother will fail to return the children to live in Australia as required by the order to be made – she has a job here (to which she wishes to return) and a home; the children have always lived in Australia and attended school here; her visa situation (and that of the children) is such that she (and they) will be required to leave Country B in around mid-2025. Even considered within the confines associated with the determination of all interim hearings, the mother’s evidence that she does not wish to forfeit her life in Australia to keep the children from seeing their father is persuasive. Further, the mother advised the father of her desire to remove the children to live temporarily in Country B and then applied for an order permitting her to do so once his opposition to her proposal became known; she and the children have also previously travelled from Australia to Country B and back again twice since late 2022 – on both occasions, they returned in accordance with the dates she provided to the father.
In summary, even taking into account the disruption to their in-person time with the father, I consider that the children’s best interests will be met by allowing them to take advantage of the opportunity to live, for a defined period of time, with their mother in Country B.
So that the children have the opportunity to spend time with the father around Christmas 2023 and New Year 2023/2024, the mother will not be permitted to relocate them to live with her in Country B until early 2024.
In order to ensure that the children are able to relocate temporarily to live with the mother in Country B in 2024, their names will be removed from the watchlist; given that the father sought an order that their names remain on the watchlist and that they not leave Australia without his permission, I think it appropriate and in the children’s best interests and welfare – so as to avoid any possibility of them attending at the airport and facing difficulties there – that he be restrained from taking any action, or having any other person take any action, to have the children’s names placed on the watchlist after the same are removed in compliance with the order that will issue.
Continuation or removal of supervision of the children’s time with the father
As noted earlier, the father sought to have the supervision over the children’s time with him removed. The mother opposed such an order at this time because of her concerns about his mental health functioning, based on her knowledge of his behaviours when mentally unwell in the past.
The father has a long standing and significant history of mental health issues and has been diagnosed with a mental health disorder. He was involuntarily admitted to the C Hospital in mid-2022 and remained in care for nearly two months when he was discharged – he remained on a Treatment Authority until late 2022.[23] This admission was the second occasion on which the father was involuntarily admitted to hospital – he was previously the subject of an involuntary admission to the C Hospital between mid-2012 and late 2012.[24] During the first admission, his hostility and paranoia toward the mother was such that the hospital applied to QCAT for an order permitting decisions to be made on his behalf – whilst overturned because all of the family’s finances were in the father’s name and, consequently, the mother’s ability to manage and access the same was then limited, the mother was granted a Power of Attorney in relation to the father’s financial decisions.
[23] Affidavit of the mother filed 22 August 2023, paragraphs 55, 64.
[24] Affidavit of the mother filed 22 August 2023, paragraph 15.
Whilst the father’s case for the removal of supervision over the children’s time with him can be summarised as being, really, that his mental health has improved to the extent that supervision is no longer necessary to ensure the children’s best interests are met, the evidence does not persuade, at this time, that this is the case.
I consider that, given her past conduct in supporting the father during his mental health travails, including after their separation, the mother has demonstrated an ability and willingness to support the children’s relationships with him provided that she is assured of their safety during their time with him. Given this, I see no reason to disregard her evidence about her discovery of the conditions in which the father was living in the lead-up to his mid-2022 involuntary admission to hospital. I also see no reason to disregard her evidence to the effect that the father: has a history of presenting his deluded beliefs to the children as facts (for example, he has told them that he can heal mental illness and has saved thousands of people’s lives); lacks consistency and often exhibits erratic and abusive behaviour when he is unwell; when unwell, lacks insight into his condition and is unable to seek help. I have arrived at such conclusions – even on an interim basis – having regard to the various documents sourced via subpoena to which the mother referred during her submissions and the contents of the Child Inclusive Report.
Given her support of the father – in terms of her actions to ensure he is supported financially in particular – I am confident that, if the mother assessed the father’s functioning (with the benefit of her history of interactions with him) to be such that the children were not at risk of harm, she would agree to them spending unsupervised time with him, even if such time was of fairly short duration. After all, her evidence included that, if the father’s health improved, then the limitation of supervision could be relaxed and the time the children spend with him could be extended.
I am not persuaded that the children’s best interests would be met, and any risk to which they would be exposed whilst spending time with their father could be mitigated, by ensuring, in the event a supervisor is unavailable to supervise their time with their father, that the father advise the mother of his plans no less than 48 hours before the children spend time with him and they have their own phones, on which a tracking application is installed. Rather, as the mother is acknowledged to be the children’s primary carer and as she will continue, by agreement, to fulfill this role, I consider this case is one in which, on an interim basis at least, significant trust should be placed in the mother to continue to discharge her parental responsibilities with a focus on ensuring that, to the extent that their safety is not compromised, the children have the benefit of continuing to spend sufficient time with their father to ensure that they continue to maintain their meaningful relationships with him.
Given the evidence before me, I am not persuaded that it is appropriate at this stage to discharge the father from the obligation to which he agreed before the senior judicial registrar in November 2022 and, consequently, the father will continue to be restrained from coming within 100 metres of the children’s schools and residence.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 October 2023
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