ELIAS & ELIAS

[2020] FCCA 593

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIAS & ELIAS [2020] FCCA 593

Catchwords:
FAMILY LAW – Parenting – Contravention Application – overnight time not facilitated – assertion of a reasonable excuse – child suffers from type 1 diabetes – Father’s capacity to care for the child – concerns regarding Father’s mental health and cognitive functioning – reasonable excuse proven – operative orders varied.

Legislation:

Family Law Act 1975 (Cth), Div.13A, sub-div E, ss.70NBA(1), 70NAC, 70NAE, 70NAE(5)(b)

Cases cited:

Childers & Leslie [2008] FamCAFC 5

Gaunt and Gaunt [1978] FamCA 97
In the Marriage of O’Brien [1992] FamCA 52

Applicant: MR ELIAS

Respondent: MS ELIAS

File Number: MLC 5387 of 2018

Judgment of: Judge Carter

Hearing dates: 7, 14, 20 and 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Melbourne

Delivered on: 16 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Mort

Solicitors for the Applicant: Berger Kordos Lawyers

Counsel for the Respondent: Mr Hutchins

Solicitors for the Respondent: Pearce Webster Dugdales

ORDERS

1. The Father’s Contravention Application filed 3 December 2019 be dismissed.

2. Until further order, order 3(a) of the orders made 20 June 2019 be varied to provide:-

   (a)from 10.00am until 5.00pm Saturday and from 10.00am until 5.00pm Sunday on two out of every three weekends.

3. Liberty is granted to the parties to apply.

4. The matter remains listed for Final Hearing commencing on 27 July 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5387 of 2018

MR ELIAS

Applicant

And

MS ELIAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Father asserts that from 24 August to 23 November 2019, the Mother has contravened orders of this Court made on 20 June 2019 (“the June 2019 orders”) by preventing overnight time occurring between him and their daughter, X born 2013 (“X”).

2. The Mother acknowledged that overnight time had not occurred on each of the occasions as pleaded by the Father in the Contravention Application filed by him on 3 December 2019 (“the Contravention Application”). However, she said she had a reasonable excuse, in that she said she believed that withholding X was – and remains – necessary to protect her health and safety.

Contravention Application

1. The Father set out eight alleged breaches of order 3(a) of the June 2019 orders as follows:-

   a)24 August 2019;

   b)31 August 2019;

   c)14 September 2019;

   d)21 September 2019;

   e)12 October 2019;

   f)2 November 2019;

   g)16 November 2019; and

   h)23 November 2019.

2. The Contravention Application contained a further three alleged contraventions of different provisions of the June 2019 orders. Those were struck out by consent at the commencement of the proceedings.

3. Each of the counts was put to the Mother through her Counsel and she denied each of the counts.

4. Evidence was then heard from the Father, who was subjected to cross-examination. The Mother and her father, Mr A (“Mr A”), both gave evidence and were then cross-examined. Both parties and Mr A had filed affidavit material which they each adopted.

Background

1. X was diagnosed with juvenile diabetes in March 2018, very shortly before the parties separated. Her condition requires vigilant and constant monitoring and management. Failure to respond appropriately to a hypoglycaemic attack (“a hypo”) – being a low Blood Glucose Level (“BGL”) – may result in a person falling into a coma, and can ultimately be fatal. Hyperglycaemic attacks (“a hyper”) result when the BGL is elevated. These also need to be treated to bring X’s BGL into a normal range. It is common ground that X has suffered both hypo and hyper attacks whilst in the care of each parent. It is also common ground that these can occur even with the most careful monitoring of her BGLs, attention to diet, water intake, exercise levels and the like. This is unfortunately a reality for children with Type 1 diabetes.

2. X’s treating specialists include Dr B, paediatric endocrinologist (“Dr B”); Ms C, diabetes educator (“Ms C”), Ms D, psychologist (“Ms D”), and Ms E, dietitian (“Ms E”).

3. X was fitted with a Continuous Glucose Monitoring device (“CGM device”) in August 2018. That device transmits BGL data to X’s phone, which then sends the data to the phones of the parties and of each of the maternal grandparents. X’s phone must be charged and near her – unobstructed – at all times to receive the data. She has been instructed not to use her phone except in the case of an emergency. The only numbers programmed into her phone are those of her parents and maternal grandparents.

4. When X’s BGL falls to a dangerous level, being below a reading of 4.0, an alarm is triggered to be sent to the various phones.

5. It is common ground that there are technical difficulties with the CGM device at times, in that it does not receive data on occasion. The Mother says she has made multiple complaints about this to the manufacturer. When the CGM device comes ‘back online’, the data is then ‘backfilled’. Again, it is common ground that this has occurred whilst X is in the care of each of the parents.

6. When the CGM is offline, or if there is a concern it is not recording properly, X’s BGL is to be monitored by a manual finger prick test.

7. It is the Mother’s evidence that the Father has struggled to understand the substantial training they have both received in relation to X’s condition. Additionally, she says the Father’s mental health is such that his cognitive capacity is impaired, and in those circumstances, he is unable to provide appropriate care for X.

8. Notwithstanding the Mother’s concerns, the parties entered into consent orders on 25 June 2018, pursuant to which X was to spend three nights per fortnight with the Father. X then spent each alternate Saturday night and each Wednesday night in the care of the Father.

9. In June 2018, before the current orders were made, the Mother also sought and obtained an ex-parte Intervention Order against the Father, naming X and herself as the protected persons.

10. On 18 July 2018, the parties obtained the first Family Report from Mr F, clinical social worker (“Mr F”).

11. On 27 August 2018, the Intervention Order proceedings were withdrawn by the Mother on the basis that the Father provided an undertaking. X was not included on the undertaking.

12. On 29 October 2018, further orders were made by consent, extending some daytime visits over the long summer holidays.

13. On 29 November 2018, during an overnight visit, the Father slept through X having a hypo. He said this was because she had crawled into his bed, leaving the CGM or her phone in another room.

14. In January 2019, Dr B was concerned when she was told that the Father slept through a hypo attack, and recommended daytime visits only. She made a notification to the Department of Health and Human Services (“DHHS”) arising out of her concerns around “nocte hypo management” [sic]. It is clear that “nocte” meant “nocturnal”. She also recommended that the Father attend upon Ms C for an assessment as to his competency to provide care for X. The Father did not attend for that assessment.

15. There was no evidence before me that DHHS took any action.

16. The parties obtained a second Family Report from Mr F dated 6 June 2019. In interview with Mr F, the Father said that he regarded his mental and physical health to have much improved from the earlier assessment. The Father further said that he did not believe that he required medication or attendance upon a psychiatrist. It was noted that the Father had previously declined the advice of his General Practitioner (“GP”) to commence medication to assist with his mental health, and had failed to follow up on a referral to a psychiatrist.

17. Mr F said the Father told him that he was well able to manage X’s needs, and that any concerns expressed by X’s treating specialists was the result of the Mother’s biased reporting to them. Mr F said the Father appeared vague in relation to his inability to manage the resolve issues he had experienced with the insulin pen in May 2019. Mr F also observed that the Father was “vague and unconvincing” in his responses regarding the concerns expressed by X’s kindergarten in 2018 as to his attending there confused and disoriented on occasion. Mr F described the Father at paragraph 35 as remaining:-

    …somewhat vague and obfuscating concerning the extent of his difficulties and tended to minimise the various descriptions of his anxiety and depression. Mr Elias’ insight into the impact of his mental health on his parenting capacity appears to be limited. The writer gained the impression that Mr Elias’ fear of losing time with X clouds his judgment in this regard.

18. Mr F said more transparency, with the Father attending upon a psychiatrist, would provide greater reassurance around this issue. He observed at paragraph 36:-

    While Mr Elias can articulate many of the routines and processes of X’s treatment, his overreliance on Ms Elias when things go wrong, and his inability to problem solve, indicates he is unable to operationalise his knowledge and learning.

19. Ultimately, Mr F made two separate sets of recommendations. Firstly, if the Court accepted the Mother’s case that there was an unacceptable risk to X in her Father’s care overnight, he recommended daytime visits only for the time being. He said, however, that overnight time ought not be ruled out indefinitely. He said as X matures, she will become more responsible for her treatment and she will in time be better able to articulate how she is feeling and any concerns she may have. He also noted at paragraph 39 that there “are a variety of professionals and mechanisms available to review Mr Elias’ capacity for overnight time with X on an ongoing basis”, which could be reviewed yearly.

20. Alternatively, in the event the Court was satisfied overnight time should remain in place, he recommended that the then current arrangements for X with her Father – being each alternate Saturday overnight and each Thursday overnight – continue for a further 12 months.

21. Either way, Mr F recommended the Father undergo a cognitive assessment, complete Parenting Program G and engage with a psychiatrist. Additionally, he said the Father should continue with his current counselling and be subject to review by Dr B and Ms D as to his competency to have X in his care overnight. He said at paragraph 41:-

    …the risk issue for X in the current circumstances are significant given that lapses in parenting capacity and attending to X’s medical needs, particular during the night, have the potential to be fatal.

22. Mr F concluded that if these “review protocols” outlined by him were “completed in the affirmative”, time could increase to two nights each alternate weekend in addition to the midweek overnight time. That is, overnight time ought not be further extended until that additional information had been obtained.

23. On 20 June 2019, the parties entered into orders by consent that rearranged X’s time with the Father, in that she would spend Saturday night with the Father on two out of three weekends. The Wednesday visit was reduced to time after school until 5.45pm. Additionally orders were made for X to be with the Father on Father’s Day, and on other special occasions.

24. Notably, those orders included that:-

    a)within 21 days of the making of the orders, the Father enrol and engage in Parenting Program G;

    b)within 21 days of the making of the orders, the Father make an appointment to attend upon Dr H, clinical neuropsychologist (“Dr H”), for the purposes of the preparation of a neuropsychological evaluation with respect to the Father’s cognitive functioning; and

    c)the Father promptly comply with any reasonable recommendations of Dr H.

25. The overnight time provided under the orders was not conditional on the Father complying with those provisions.

26. Time occurred pursuant to those orders up until and including the weekend of 10 and 11 August 2019. Following that date, the Mother declined to provide X for overnight time. That has occurred on each of the alleged dates in the Father’s Contravention Application, and has continued to occur to date.

27. It appears Dr B made a second notification to DHHS in August 2019 “regarding concerns around prolonged nocturnal hypoglycaemia, father not adhering to court order to seek cognitive assessment”. This is reflected in the records of Dr B that were tendered. Dr B’s concern appears to have arisen as a result of what she has been told by the Mother.

28. In or around August 2019, the Father was assessed by Dr H who provided a report to the parties dated 30 September 2019.

29. The Father issued these proceedings on 3 December 2019.

30. On 17 December 2019, Dr B wrote again to Ms C requesting that she meet with the Father “to assess his understanding of type 1 diabetes management in children”. It is recorded that the Father had said he was happy to meet with Ms C. That recommendation post-dates the last of the alleged contraventions. I understand the Father still has not attended upon Ms C for that assessment.

31. The Mother then filed an Application in a Case on 19 December 2019, seeking to vary the June 2019 orders. That application does not currently have a return date, as it was vacated to enable the Contravention Application to be heard and determined.

32. The substantive parenting proceedings are otherwise listed for a Final Hearing commencing on 27 July 2020 before her Honour Judge Stewart.

Dr H’s report dated 30 September 2019

1. The Father did not comply with the order that within 21 days he make an appointment to see Dr H. Ultimately, he attended upon Dr H in or around August 2019. Dr H’s neuropsychological report dated 30 September 2019 was tendered in evidence before me.

2. In that report, Dr H makes a number of observations including:-

   a)the Father got lost on the way to the assessment;

   b)the Father was easily distracted by thoughts about the parties’ separation;

   c)the Father explained in detail how he manages X’s condition; and

   d)at the time of the assessment, the Father said he had started antidepressant medication about six or seven weeks earlier, which he felt had little effect. The name of the medication was not provided.

3. The assessment took a total of four hours. As part of the assessment process, the Father undertook a series of tests to assess his functioning. Dr H’s report makes a number of findings including:-

   a)the Father’s intellectual functioning is average, his verbal intellectual ability is in the upper average range, and his non-verbal intellectual ability is in the low average range;

   b)the Father’s slow information processing speed is “an area of significant weakness”; and

   c)the Father had trouble recalling simple geometric designs after a long delay, and delayed recall of more complex visual information.

4. The Father’s self-report indicated that:-

   a)he has always had difficulty with practical tasks;

   b)he:-

   …has trouble maintaining appropriate regulatory control over his behavioural and emotional responses and he has difficulties with active problem solving in a variety of contexts;

   c)his executive functioning impacts poorly on his ability to undertake a number of tasks including controlling his emotions, managing his impulses, planning and organising day to day life, shifting between aspects of a problem and keeping track of problem solving successes or failures; and

   d)he has significant mood disturbance, reporting mild anxiety, severe depression and extremely severe stress. She described this as “a concerning level of mood symptomatology”.

5. Overall, Dr H’s conclusions included:-

   a)the Father has some weakness in cognitive function in areas including nonverbal intellectual skill, speed of processing, visual memory and inhibitory control;

   b)the Father reliably self-reported difficulties:-

   …with many aspects of executive functioning in everyday life, including his ability to inhibit his behaviour… shift his thinking, control his emotions, monitor his behaviour, initiate activity, hold information in working memory, and plan and organise activity;

   c)the Father requires time to think through and process information and that he may miss details if information is presented too quickly. She said poor speed of processing:-

   …is often a consequence of depression, and it is likely Mr Elias’ mood disturbance is contributing to the difficulty he has in this cognitive domain;

   d)he will “probably have increased difficulty completing complex tasks”;

   e)the Father likely has significant issues with “behavioural regulation and metacognition, or active problem solving”, which is likely to be exacerbated in stressful situations. She said “[t]he level of difficulty reported is concerning”. She also said his difficulties with behavioural regulation and problem solving “are also likely to be associated with his mood disturbance”;

   f)based on his self-report, “Mr Elias may have trouble managing circumstances where X requires immediate care and attention”; and

   g)overall:-

   …weaknesses are evident in the cognitive profile and on self-report. These difficulties probably have the potential to impact his parenting capacity due to X’s high care needs.

6. Dr H identified the major issue as the Father’s depression which she said underlies his cognitive difficulties. She said if that were appropriately managed, the likely result would be an improvement in the Father’s cognitive functioning. She identified treatment of the depression as “a priority”. She also strongly recommended that the Father be psychiatrically assessed.

7. Lastly, Dr H recommended the Father have “additional supports” when he has X in his care. She did not say what that meant and suggested X’s treating specialists may be able to provide information as to appropriate supports.

8. Counsel for the Father argued that Dr H had been influenced by the Family Report prepared by Mr F.

9. Dr H was not required for cross-examination. Accordingly, the neuropsychological report is untested at this time. 

The Father’s evidence as to his capacity to care

1. The Father gave evidence and was cross-examined. I accept that he loves X dearly and that he wants to resume overnight time with her as soon as possible. He said that overnight time provides them with special bonding opportunities, such as reading together in bed and sharing breakfast, which X cannot experience if her time with him is limited to daytime visits only. I accept that he does his best to provide X with consistent and responsible care.

2. It is the Father’s evidence that he is well aware of the significance of X’s diabetes and of the absolute necessity that her BGL is properly monitored. He said he was engaged in learning about X’s diagnosis and treatment since she first became unwell. He said he has undertaken the necessary training, and met with X’s treators. He said that he is competent and capable to take the necessary action to respond to any hyper or hypo attacks.

3. The Father said that as early as May 2018, he was assessed by X’s diabetes educator as being able to provide competent care for her. He said the Mother and her family have been very resistant to him having extended and overnight visits with X, which he said is without basis. He said Mr A does not like him, is domineering and unreasonable towards him and has, at various times, acted in a way that undermines his relationship with X. The Father said the decision by the Mother to cease overnight time reflects her longstanding reluctance and antipathy.

4. The Father denied that X was, or has ever been, at risk in his care. He said on the weekend of 10 and 11 August, 2019 he carefully and diligently monitored and managed X’s BGL and took appropriate action.

1. The Father is currently on leave from his employment with DHHS and has been since early June 2018. The reason for his extended absence is largely to do with his mental health status, and the impact that has had on his ability to meet his obligations at work. In particular, the Father is suffering from depression and anxiety.

2. The Father conceded he has not complied with Dr H’s recommendation that he be psychiatrically assessed. He said he attends upon Ms I, psychologist (“Ms I”) which he finds helpful. There was no evidence from Ms I before me.

3. The Father agreed that he would now probably have to undergo a psychiatric assessment. Given the strong recommendation made by Dr H – which mirrored a recommendation made by Mr F – I am not at all clear on why the Father has not already done so. The Father, it appears, is in breach of order 9 of the June 2019 orders, pursuant to which he is required to promptly comply with any reasonable recommendations of Dr H.

4. The Father’s evidence for his non-attendance on Ms C was that he does not see why he should be ‘continually tested’; that the Mother and her family “milk” any problems that arise “for all they can”; that he should be tested by someone the Mother has not yet spoken to; and that he does not think it fair that he should ‘attend only to fail’ an assessment. Given his capacity to manage X’s care is squarely a major issue in both the Contravention Application and in the substantive parenting application, it is difficult to understand the Father’s resistance to attend upon Ms C.

Events of 10 and 11 August 2019

1. It is common ground that upon X coming into her Father’s care on the morning of Saturday 10 August 2019 her BGL was high, and that it took some hours for that trend to be reversed.

2. The Father spoke with the Mother on several occasions during the day. The Mother said the Father did not understand what to do, nor know the relevance of the ketone readings. Both parties acknowledged those conversations were child-focussed and constructive. The Mother did not think it was necessary for the Father to contact J Hospital, but agreed that he should do so if that would make him more comfortable.

3. The Father then spoke with the hospital. He said he was given advice to provide X with an additional dose of insulin and he followed that advice. It is common ground that X’s BGL was reduced to an appropriate level later in the day. The parties then diverge as to what occurred later that afternoon and evening.

4. The Father says he and X were watching football on the television together on the couch. He says at some point X used her telephone. He said he did not realise she was using it to call Mr A until he heard her speaking to him on the phone. He said he immediately jumped up and ended the telephone call. The Father says this occurred at around 6.30pm or 7.00pm, although he could not be sure.

5. Mr A said he received the first call from X at around 8.25pm. He said X was hysterical and said she could not wake the Father up, even though she had hit him to try to rouse him. He said X sounded “terrified”. He said that he then heard the Father rousing. In his oral evidence Mr A said he heard the Father say “oh, oh, what are you doing sweetie” and X said she was “on the phone to grandpa”. He said he heard the Father say “don’t do that” and the phone call was then terminated.

6. In his oral evidence, the Father denied that he had been asleep. He also said that he had been pretending to be asleep, and later, he said if he had been asleep, it was only for a minute. At one point he said when he heard X talking to Mr A, he “was awake by then” which seems to suggest he had fallen asleep. The Father did not suggest in the correspondence sent by his solicitors at the time, nor in his affidavit material that he had been pretending to sleep, or that he may have fallen asleep briefly. He also did not refer in the correspondence to X hitting him, although in his oral evidence, he said she got off the arm of the chair and punched him in the stomach or the arm, and that he could not recall which. He said “I was playing along, pretending I was asleep”.

7. I am satisfied that the Father had fallen asleep for at least as long as it took for X to become upset when he did not rouse, and then to place a call to Mr A and tell him that she was unable to wake the Father even though she had been hitting him.

8. Mr A then said he called X back on her phone. X confirmed that the Father was then awake. He said X told him she was scared. He asked to speak to the Father, who came onto the phone and said nothing was wrong, and everything was okay. I accept this evidence.

9. Mr A said he received a second call from X at around 9.00pm. At that time, the Father said X was having a tantrum, as she did not want to relinquish the Father’s phone to him. Apparently, it is not uncommon for X to use her Father’s phone to play games, or watch content, and then to refuse to give it back to him. Mr A said during this call X was crying, in distress, complained that “daddy is hurting me” and that he was taking away her phone. She was using her own phone to make the call.

10. The Father denied that he ever hurt X, but he agreed that X did say that to Mr A. The Father said “X will say anything to get the phone”. The Father said that Mr A spoke to him at that time “basically to yell at me”, although he conceded he could not remember the conversation very well. He says the maternal grandmother also got involved, calling his landline telephone, and then yelling at him and calling him a “stupid old man”.

11. I accept the Father’s evidence that the phone he was removing from X was in fact his phone and not her phone. I also accept that he was not hurting X. Mr A admitted his wife had called the Father a “silly old man”.  

12. The Father said he was able to get X to calm down after reading her a story in bed and she fell asleep.

13. The Mother was out at a concert that evening, and did not return home until around 11.30pm or midnight. There is, of course, no criticism levelled at her for this.

14. It is apparent that the CGM device stopped transmitting data to the various telephones at about 3.00am. I accept the Father’s evidence that this was not the Father’s fault, that X’s phone was charged and near her at all times, and that this was a malfunction that occurs from time to time.

15. The Father said that he monitored X’s BGL at 2.00am, and again at 4.00am. He said that the levels were normal at both times. When it was put to him that at 4.00am he would have seen that there had been no data for an hour, the Father said he did not see that. I do not know why the Father would not have noticed at 4.00am that the CGM was not online. In his oral evidence, he said the reading at 4.00am was 8.0, and later, about 8.0 on both his phone and on the CGM. He did not give that specific figure in his affidavit material nor in the contemporaneous correspondence.

16. The Father said the alarm did not go off on his phone until 4.12am. He said at that point he realised that the device had malfunctioned, and that was when the CGM came back online and the data was then backfilled, showing that X had suffered a reasonably prolonged hypo. He said he immediately sprang into action, rushing X into the kitchen and administering her apple juice.

17. Mr A says at 4.00am the emergency alarm was activated on Mr A’s phone. Mr A said this woke him up. I do not accept that the alarm went off at 4.00am, but rather that it went off at 4.12am, when the CGM came back online and the data backfilled. The Mother’s evidence was consistent with the alarm going off at 4.12am, rather than at 4.00am, with both the Mother and the Father saying that the alarm could not have gone off before the CGM device came back online and the data backfilled.

18. Mr A telephoned the Father at 4.12am. Mr A says initially, the Father’s telephone did not ring, and he had to call a second time. He says the Father then answered. Mr A said the Father told him he had done a finger-prick test at 4.00am, but that he heard X in the background saying that her Father was lying and no test had been done. The Father acknowledged that he did not do a finger prick test at 4.00am.

19. If the Father did wake at 4.00am as he asserts, he should have noticed that the CGM was not working and no data had been received for an hour. If he did not see that, as he said, this raises concern as to his functioning at that time. If he had realised the CGM was not working, he should have conducted a finger prick test. He acknowledged he did not do a finger prick test until around 4.30am. Had he done a finger prick test, he would have ascertained that X was suffering a hypo attack at 4.00am, rather than discovering that at 4.12am when the CGM came back online. It would also have been prudent to do a finger prick test more promptly to ascertain whether the CGM was accurate.

20. I accept the evidence of Mr A that when he first telephoned the Father at 4.12am, the phone was unanswered. That may well have been because at that moment, the Father realised the seriousness of X’s condition and had started taking action.

21. The Father said that when he spoke with Mr A at 4.12am, he was already awake and providing care to X. He said he told Mr A that everything was under control. He said Mr A however insisted on staying on the telephone and accused the Father of “playing Russian roulette with X’s health”. Mr A admitted he did say that. That was an unhelpful comment to make and would have been upsetting to the Father.

22. Mr A said he was concerned to see that X’s BGL was not rising quickly, and so he called the Father again at around 4.28am. Mr A said the Father’s phone did not work when he first rang and he again had to call a second time. Mr A said he asked the Father what was wrong with his phone. He said when the Father said there was nothing wrong with it, he heard X in the background saying her Father was lying and that the phone was out of battery. I am not sure how X would have known whether her Father’s phone was out of battery. Again, if the phone was not initially answered, that may well be explained by the Father’s focus at that time being on attending to X. It appears the Father only conducted a finger prick test after that second phone call from Mr A. There was no reasonable explanation from the Father as to why there was such a delay in him administering that finger prick test.

23. Mr A said the Father sounded confused, vague and agitated when they spoke on the phone. He said the Father did not properly follow the protocol that required X to have apple juice every 15 minutes, and that he had only given her one apple juice. I accept the evidence of the Father that he did administer the apple juice adequately once he realised X was hypoglycaemic. I expect he did sound agitated, and he may have sounded confused at 4.28am, given that it was a stressful situation, the CGM had malfunctioned, and he finds talking with Mr A difficult.

24. It is common ground that by 4.40am, X’s BGL was rising to an acceptable level. That suggests the Father did follow the correct protocols with respect to X’s treatment.

25. It is apparent that the Mother did not participate in communicating with the Father that evening. All communications were between the Father and Mr A. Once the Mother returned from the concert, it was not clear to me why Mr A, rather than the Mother, played such an active role during the events of that night. The Mother said this was because she did not feel comfortable speaking with the Father at that time of night. This was at odds with her evidence that the parties had spoken throughout the day in a constructive and respectful manner. Given the nature of the relationship between Mr A and the Father, that would have added to the Father’s stress at what must already have been a stressful situation. It may well have been more constructive for the Mother, rather than Mr A, to have been speaking with the Father.

26. The Father said that on Sunday 11 August, he and X spent an enjoyable day together. He took her swimming and later they went to a play centre with a friend.

27. Mr A said that when he and the Mother collected X from the Father on Sunday 11 August at 5.00pm, X said she had been frightened by the events at her Father’s home the night before when she could not wake her Father up.

28. The Mother said when she learned of the events that night, she was ‘shaken to the core’. Given X’s need for careful monitoring by the adults around her, I accept X would have been frightened if she was unable to wake a carer up. The Mother said X had never told her directly before that she was scared at her Father’s home.

X’s time with the Father after 10 and 11 August 2019

1. No overnight time has occurred since that visit. It is common ground that the Father has attended at the changeover location on each Saturday at 10.00am on the dates set out in the Contravention Application, and that X has not be delivered there by the Mother.

2. On 16 August 2019, a letter was sent from the Mother’s solicitors advising that overnight time would not be provided following the events of the preceding weekend “at least pending the completion of the Court-ordered cognitive assessment, and receipt of the relevant report”. Additional daytime was offered.

3. On 22 August 2019, a further letter was sent from the Mother’s solicitors requesting an undertaking from the Father that he would not spend overnight time with X. If that undertaking was provided, time would occur from 10.00am to 5.00pm on both the Saturday and the Sunday. It was proposed “this arrangement should continue until Mr Elias has undertaken the required cognitive assessment with Dr H”. An additional day during the school holidays was offered.

4. The Father declined to give that undertaking. Accordingly, time for X with the Father has been restricted by the Mother to Sunday during the day and Wednesday after school, until the matter commenced before me. At that time, the parties agreed X would spend Saturdays and Sundays with the Father, during the day, on two out of three weekends, pending the resolution of the Contravention Application.

5. On 8 November 2019, the Mother proposed through correspondence that there be no overnight time “pending the Final Hearing in July 2020”.

The law

1. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) provides that a person is taken to have contravened a parenting order, if and only if a person bound by the order has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order. It is not in dispute that the Mother intentionally withheld X on each of the eight Saturdays as alleged.

2. In this case, the Mother asserted she had a reasonable excuse for contravening the orders. Section 70NAE of the Act sets out the meaning of reasonable excuse. That section, relevantly, provides:-

   (1)    The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   …

   (5)    A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

3. The relevant standard of proof is generally the civil standard. That is, to find a contravention proven, I must be satisfied on the balance of probabilities that the contravention occurred. In the event the Court is considering imposing a community service order, a fine, or a prison sentence, the criminal standard is the relevant standard. In closing address, Counsel for the Father conceded that if the contraventions were proven, they would fall within Division 13A, subdivision E of the Act. Accordingly, the relevant standard of proof that the contravention occurred is the balance of probabilities.

4. The balance of probabilities is also the relevant standard for the finding of a reasonable excuse, which the Mother asserts she has. As it is conceded that X was not made available for overnight time, I must consider whether or not the Mother had a reasonable excuse. The Mother bears the onus of proving that she had a reasonable excuse.

5. The case law, beginning with Gaunt & Gaunt [1978] FamCA 97, makes it clear that a reasonable excuse cannot be made out because a party disagrees with an order. Additionally, a party cannot make out a reasonable excuse if they believe the order is not in the child’s best interests, as to do so would allow a party to claim the power to decide on parenting matters, usurping the Court’s orders: see In the Marriage of O’Brien [1992] FamCA 52. The Full Court of the Family Court has more recently expressed similar sentiments in Childers & Leslie [2008] FamCAFC 5.

6. Accordingly, a reasonable excuse will not be established on the basis that the Mother formed the view that overnight time was no longer in X’s best interests. It must be something more than that – a belief that the breach of the order was necessary to protect a child’s health or safety, or something akin to that.

The Mother’s beliefs

1. It is the Mother’s case that she believes, on reasonable grounds, that not allowing X to spend overnight time with the Father was necessary on each of the dates set out in the Father’s Contravention Application in order to protect X’s health and safety. It is also her case that it continues to be necessary to not allow overnight time to occur.

2. I must firstly consider what her belief at the time of each contravention was, and secondly, whether that belief was reasonable. I must then also consider whether the period that overnight time has been prevented for is longer than necessary, pursuant to section 70NAE(5)(b) of the Act.

3. It has been the Mother’s position, throughout the parenting proceedings, that the Father lacks the capacity to appropriately monitor and care for X on any extended basis. This has been a consistent theme throughout all the affidavits she has filed since she commenced these proceedings in May 2018.

4. In her affidavit sworn on 20 May 2019 on which she relied, the Mother sets out at length her concerns about the Father’s capacity to manage X’s diabetes. She sets out that there were several incidents in 2018 at the kindergarten in which the Father presented as confused, disorientated and flustered. She says the Father has struggled with the CGM device, was delayed in learning about it, has not properly calibrated it, has not reinserted the sensor correctly when it comes off and has slept through alarms. The Mother said Ms D and Dr B have, at times, expressed concerns regarding the Father’s capacity.

5. It is also clear from the documents tendered from Ms D that according to the Mother, X has been concerned about staying overnight with the Father as there have been “several serious incidents with blood sugar level while in father’s care”. Additionally, in a joint parent session on 6 February 2019, Ms D noted that whilst X enjoys having fun with the Father “she is also frightened about her safety as in the management of her chronic illness”. Ms D also contacted DHHS in April 2019, enquiring about their involvement and expressing concerns about X having reported that the Father had grabbed her and yells at her.

6. At the eighth session with Ms D, it is recorded that the Mother reported X was refusing to go to the Father’s home. That session is undated, but must have occurred prior to 14 May 2019 as that is the ninth session date. On that occasion, X reported to Ms D that “Daddy keeps losing things or forgetting things”, and that she wants her Father to “look after me better – he leaves things in the car/forgets my insulin it makes me angry”. X also said that “Daddy and her yell a lot”. By the tenth session, which is undated, X reports that “Dad and her are ‘better’ – not as much yelling”. At the session dated 22 July 2019, X reports that she is enjoying the visits with her Father and that they are not arguing much, “only when he forgets things”.

1. In her affidavit sworn on 19 December 2019 the Mother again set out her ongoing concerns about the Father’s capacity to care for X. She maintained that he is unable to manage X’s dietary requirements, and that he struggled to understand and operate the CGM device, as well as that he struggles managing X’s behaviour in general. The Mother said the Father often contacts her for advice and assistance in relation to X’s diabetes and in relation to her behaviour.

2. The Mother acknowledged these concerns pre-date the making of the orders on 20 June 2019. She said she agreed to those orders because:-

   a)they were a reduction of overnight time – reducing the overnight stays from three nights per fortnight, to two single nights every three weeks;

   b)the Father was to complete Parenting Program G; and

   c)the Father was to undergo a neuropsychological assessment, and comply with any reasonable recommendations made in that assessment.

3. The Mother said that although she had grave concerns about X in the Father’s care, she felt the June 2019 orders provided sufficient safeguards as well as promoted X’s relationship with the Father.

4. The Mother does not depose to there being any other risk issues arising between the making of the orders and the events on 10 and 11 August 2019. She says it was after the events on 10 and 11 August that she formed a view that X was at real risk in her Father’s care during overnight visits.

5. The Mother was subjected to rigorous cross-examination. I found her to be a credible witness, who was and is genuinely concerned about the safety of X in the Father’s care during overnight visits.

Findings

1. For the reasons that follow, I am satisfied that after the events of 10 and 11 August 2019, the Mother formed the belief that not allowing overnight stays was necessary to protect X’s health and safety. I am also satisfied this was a reasonable belief due for the following reasons:-

   a)although I accept the Father has tried his best to provide appropriate care for X, his memory of the events of the night of 10 and 11 August 2019 was not clear. He gave confused evidence as to whether he had fallen asleep whilst watching television, denying he had fallen asleep, and then saying if he had, it would only have been briefly. He did not in his material refer to X hitting him, but did concede that in cross-examination. It is difficult to accept that X could have placed a call to Mr A, in which she complained that she could not wake the Father up even though she had been hitting him, whilst right next to the Father without the Father being aware she was doing so. I accept the Father had fallen asleep. I note that the concerns about this need to be seen in the context of the Father’s physical health issues the allegations that he has previously slept through a hypoglycaemic attack, and in circumstances where X requires constant and vigilant monitoring;

   b)the Father’s evidence was that he woke at 4.00am, and did not realise there was something amiss with the CGM device. I am satisfied that the fact that the CGM device malfunctioned on the night of 10 to 11 August 2019 was not the fault of the Father’s, as it does malfunction from time to time. I accept that the Father did have X’s phone charged and near her. However, the adult caring for her needs to be sure that the machine is operating correctly. If there is any concern it is not – for instance if there are gaps in the data – X should have a finger prick test done immediately. Had that been done at 4.00am, X’s hypo attack would have been obvious and action would have been taken. If the Father did awake at 4.00am he should have been more vigilant about whether or not the CGM was working. His failure to do a finger prick test at 4.00am could have had very significant consequences for X had the monitor not come back on line and sounded the alarm at 4.12am.

   c)once the alarm went off at 4.12am, given the inaccurate readings, and the missing data, a finger prick test should have been done prior to 4.30am to ensure that there was an accurate reading of X’s BGL. By that time, X had been in a hypoglycaemic state for over an hour; and

   d)it is apparent that Mr A does not have much respect for the Father. However, I accept Mr A has given accurate evidence regarding the events of the night of 10 and 11 August 2918. That includes that he has accurately reported what he heard X say to him directly and what he heard her say in the background when on the phone to the Father. It is also reasonable that the Mother accepted that her Father was being truthful when he told her of his recollection of the events that night. In those circumstances I accept the Mother’s concerns about X’s health and safety would have been substantially heightened.

2. Counsel for the Father submitted that the actions of the Mother and her family “have paved the way for these breaches”, pointing to the Mother’s historical resistance to overnight time. He also highlighted what he described as the Mother’s poor attitude to the Father, which he said was displayed by a number of incidents. These included the Mother’s refusal to allow the Father to interact with X at her dance concert in December 2019, her inability to give the Father any credit for his care of X, and her alleged failure to properly inform the Father in a timely fashion on the occasions X has been taken to hospital. In addition, Counsel for the Father submitted that the Mother had sought an Intervention Order in 2019, prior to the cessation of overnight time, to include X. Ultimately, that Intervention Order was withdrawn. The Mother conceded that the Magistrate had said there was no basis for the making of the Intervention Order. I note the application and its withdrawal preceded the events of 10 and 11 August 2019.

3. I agree that it would be artificial for the Court to disregard the history of the Mother’s concerns and only consider what occurred following the making of the June 2019 orders in determining the reasonableness or otherwise of the Mother’s belief. The Mother’s decision to terminate overnight time following 10 and 11 August 2019 did not occur in a vacuum.

4. Whilst Mr A appears to have significant antipathy towards the Father, I did not gain the impression from the Mother that she was motivated to minimise the Father’s role in X’s life out of a dislike of him. Rather, I assessed the Mother to be a sincere and concerned parent, who at all relevant times since 11 August 2019 has been genuinely fearful for X’s health and safety should there be overnight stays with the Father. I am not satisfied that the Mother’s decision to stop overnight visits was just the next step in a course of conduct taken to diminish the Father’s involvement, or an attempt to besmirch him.

5. The history of this matter includes the Mother’s long standing concerns about the Father’s capacity to provide care. It also includes a previous incident where the Father acknowledged that he had not been awake when X suffered a hypo attack in his care in November 2018, the concerns raised by X’s kindergarten and her treating specialists at times, and the concerns outlined by Mr F in his Family Reports, all of which pre-date the making of the June 2019 orders.

6. I accept that the events of the night of 10 and 11 August 2019, as recounted to the Mother by Mr A and in light of X’s comments the following day, re-confirmed and amplified the Mother’s concerns as to X’s health and safety whilst in the Father’s care overnight. I am also satisfied this was to the extent that, as at 11 August 2019, she then held the view that any further overnight time put X at significant risk. I am satisfied given all the circumstances that there were – and are – reasonable grounds for her to have formed that belief.

7. The Mother’s belief has not altered since that time.  

8. In my view, Dr H’s report, released to the parties on 30 September 2019, confirms the reasonableness of the Mother’s beliefs, at least until the Father is psychiatrically assessed.

9. As set out, Dr H reports that the Father has issues with many aspects of his executive functioning, and speed of processing information. Based on her assessment, the Father may have difficulties managing situations where X needs immediate care and attention, and his cognitive weaknesses probably impact his parenting capacity given X’s high needs.

10. Dr H identified the major issue as the Father’s depression which she said underlies his cognitive difficulties. She said if that were appropriately managed, the likely result would be an improvement in the Father’s cognitive functioning. She identified treatment of his depression as “a priority”. She also strongly recommended that the Father be psychiatrically assessed.

11. Counsel for the Father was critical of Dr H’s report, asserting she had failed or neglected to confer with the Father’s treating psychologist. I note no report from Ms I was before me regarding the Father’s attendances upon her, his level of insight, or her assessment of his functioning. Given that much of the Mother’s – and the professionals’ concerns – about the Father focussed on his mental health and how that impacts on his cognitive capacity, a report from Ms I may have been of significant assistance.

12. Dr H’s report is untested. She did not give evidence before me. The Father may wish to challenge that report at trial, and he may do so successfully. On its face, however, there is nothing inherently improbable or unreasonable in the report. There is no challenge to Dr H’s qualifications and expertise.  Accordingly, it is reasonable for the Mother to have accepted the contents of that report.

13. Counsel for the Father was critical of the Mother’s failure to take action beyond withholding X from overnight time prior to the Father issuing the Contravention Application. That is, she made no application to vary the orders until after he filed his Contravention Application. Similarly, she did not, herself, make any application as a result of the Father’s failure to comply with the timeframe in the June 2019 orders for the making of the appointment with Dr H. Nor did she bring any application as a result of him failing to comply with Dr H’s recommendations.

14. It is clear that a parent who is not complying with orders ought to be proactive, rather than inactive – it is incumbent upon them to make an application to vary the orders. Whilst it is regrettable that the Mother had not immediately sought to vary the orders, she was not wholly inactive. There are letters between the parties’ solicitors, complaints made and offers of alternate arrangements put.

15. The Father has not assisted his case by failing himself to comply with the June 2019 orders, as he has not complied with Dr H’s recommendation for a psychiatric assessment.

16. In all the circumstances, I am satisfied that the period of time that X has not had overnight time has not been for a period longer than necessary to protect her. The concerns the Mother has are ongoing, and reasonably so, at least until the Father has been psychiatrically assessed. An assessment of the Father by the diabetes nurse educator would also be of assistance.

Orders to be made

1. I am satisfied the Mother held a reasonable view at the time of each of the dates set out in the Contravention Application that it was necessary for X’s health and safety to stop the overnight time occurring, and that the prevention or time has not exceeded the timeframe necessary to provide X with protection. Accordingly, I am satisfied that the Mother has a reasonable excuse in relation to each of the contraventions as pleaded by the Father.

2. It is the Mother’s position that the orders be varied pending the Final Hearing commencing on 27 July 2020. The Mother’s application to vary the orders is not formally listed before me. However, the Court has the power to vary orders when a Contravention Application is before it. That is set out in section 70NBA(1) of the Act.

3. The Mother’s position is that the orders should be varied to provide for no overnight time pending the Final Hearing. The Father’s position is that the orders should not be varied, and overnight time should resume.

4. When determining whether orders should be varied, the Court is required to consider the child’s best interests as the paramount consideration. The Act sets out the myriad of considerations that I must take into account when determining those best interests. The primary considerations require that I take into account the benefit to X of having a meaningful relationship with the Father, and that I also ensure she is protected from harm. There appears to be no dispute that X derives considerable benefit from her relationship with her Father, and that should continue.

5. The Mother’s proposal of frequent day time visits – Saturday and Sunday two out of three weekends – as well as time each Wednesday, and for two occasions during Greek Easter – will ensure she continues to have a close and loving connection with the Father. Not providing overnight time does deprive X of having the Father involved in bedtime rituals, sharing early mornings together and interrupts the weekends with the Father. However, as is evident from my reasons, I share the Mother’s concerns about X’s safety in the Father’s care, at least pending further assessment of him by a psychiatrist. Where there is a conflict between the two primary considerations, priority must be given to the need to keep a child protected from harm.

6. There is a dispute as to X’s views. The Mother said she does not want overnight time with the Father, and the Father denies that. He said the overnight times have been special and enjoyable for both him and X. Ms D’s notes, which were tendered before me and to which I have referred, appear to confirm that X has expressed some reluctance and distress regarding her safety during overnight time with the Father.

7. X clearly has a close and loving relationship with both of her parents. They both love her dearly. They have also both taken opportunities to participate in X’s life and engage with her.

8. X has been having daytime visits only with the Father for the last six months. Given Ms D’s notes – which are untested at this time – I have some concern that reintroducing overnight visits, at least without proper support for X, could be distressing and stressful for her. It is common ground that X’s BGLs can be negatively impacted by stress. I also take into account that not reintroducing overnight time prevents X from experiencing the Father being fully involved with bedtime and breakfast rituals.

9. The Mother’s capacity to manage X’s diabetes is not in question. The Father’s capacity to do so, however, is at the heart of the matter. I take into account the as yet untested conclusions of Dr H as to the impact the Father’s mental health issues may have on his capacity to successfully manage X’s needs.

10. In my view, in the circumstances, it is appropriate that the orders made on 20 June 2019 be varied to provide for daytime only at this stage.

11. I am mindful that this decision will be disappointing to the Father. If there is better evidence before the Court as to the Father’s functioning and capacity that will of course assist the Court in determining whether overnight time should be reintroduced. I understood from the Father’s evidence that he intends to undertake a psychiatric assessment. Dr H will be able to be cross-examined at the Final Hearing, as will Mr F. I anticipate Dr B and Ms D would also provide reports, and presumably will be able to give evidence at the hearing. Those additional pieces of evidence will place her Honour in a better position to determine the best outcome for X.

12. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date:  16 March 2020