Gibson & Battersby (No 2)
[2025] FedCFamC1F 264
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gibson & Battersby (No 2) [2025] FedCFamC1F 264
File number(s): BRC 11683 of 2021 Judgment of: BRASCH J Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – PARENTING – RECOVERY ORDER – Where interim consent parenting orders are in place for the child to live with mother and spend time with the father – Where both the mother’s and father’s time with the child are subject to certain conditions –Where each parent’s vulnerabilities were well known when interim consent orders were made – Where the father has held over the child, including when admitted to a psychiatric ward of a hospital – Where both parties have failed to comply with some of the interim orders – Where the mother has been upfront about her difficulties, but the father has not – Where the mother seeks recovery of the child – Where recovery order made for child to be returned to mother – No variation to interim consent orders Legislation: Family Law Act 1975 (Cth) Part VII, ss 67Q, 67R, 67T, 67U, 67V, 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Bond & Dalton (No 2) [2020] FCCA 2978 Division: Division 1 First Instance Number of paragraphs: 131 Date of hearing: 17 April 2025 Place: Cairns (via Microsoft Teams) Solicitor for the Applicant: Sterling Law (Qld) Solicitor for the Respondent: Stolar Law Pty Ltd Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 11683 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GIBSON
Applicant
AND: MR BATTERSBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.The respondent father shall by no later than 1.30 pm today return the child X born in 2017 (“the child”) to the applicant mother at her residence.
2.When the father returns the child to the mother’s residence, the father is to remain in his vehicle and the mother in her house, and the child is simply to alight from the vehicle and walk to the mother’s door, which she will open and let him in.
3.The father and mother are enjoined from telling the child only that the child is being returned to his mother.
4.The parents are restrained from discussing any aspect of today’s proceeding being the outcome other than indicated in the previous order, any documents, any exhibits, any affidavits or any submissions.
5.The parties are not allowed to expose the child to any other person who discusses today’s proceedings.
6.Failure to comply with Order 1, which is the return, a Recovery Order issue for the child pursuant to s 67Q of the Family Law Act 1975 (Cth).
7.The Marshall, the Deputy Marshall, all Officers of the Australian Federal Police and all Officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force:
(a)to stop and search any vehicle, vessel or aircraft and search any premises or place for the purpose of finding the child;
(b)to recover the child;
(c)to deliver the child to the applicant mother; and
(d)to arrest, without warrant, the respondent father in the event the respondent father again removes or takes possession of the child.
8.If the father again removes or withholds the said child from the applicant mother on or after the making of an order he may be arrested without warrant.
9.The above orders remain in force for a period of twelve (12) months.
AND THE COURT NOTES THAT:
A.The consequence of the above orders is that the consent orders of the 26 September 2024 remain in force.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibson & Battersby has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will revise to make the spoken word more amenable to reading.
Before me is a Recovery Application brought by the mother concerning the child X, born 2017 (“X”) (“the child”).
It is useful to note that on 25 September 2024, the matter was before me for a trial, but the parties ultimately proposed very detailed [interim] consent orders. The trial was then postponed to July this year [2025].
It is also useful to set out parts of those consent orders because it informs the submissions I heard this morning. Ultimately, I determined the proposed orders were in X's best interests. They included that:
·The parents share decision making;
·Subject to certain conditions the child live with the mother;
·The father's time with the child was also subject to certain conditions as well, and I will come to both of those;
·There was a graduating program of time between X and his father;
·The conditions of the child spending time with the father included that he: follow recommendations of his treating practitioner; remain engaged with his health practitioners and general practitioners; not use illicit substances; engage with the child's treaters; engage with the Child and Youth Mental Health Services (CYMHS); ensure the mother is informed of all engagements with the child's treaters; and, authorise the child's treaters to engage with the mother. Item (g) of the conditions is to ensure the child attends school on days the child is required to attend school when in the father's care. It is common ground that that has not occurred, but I will return to that; and
·The conditions of the child living with the mother are in very similar concepts, to: follow recommendations of treating health practitioners; remain engaged with her practitioners; not to use illicit substances (and the mother deposes to and is candid that she has not complied with that a couple of times); engage with the child's treaters; ensure the father is informed of engagements; ensure the child attends school when the child is required to when in the mother's care; and, engage in hair follicle tests.
In other words, each parent's vulnerabilities were well known to each other in the lead up to what was going to be a trial, but what ultimately became the making of interim consent orders.
The mother's vulnerability to drugs was well known. The father's vulnerability to mental health difficulties was well known.
The consent orders then went on requiring hair follicle testing with a very detailed regime for that. The orders also provided for special occasion time and for communications. There are change over orders and injunctions. The orders also provided at Order 32:
The mother and the father authorise the school to inform the ICL of the dates the child fails to attend school in accordance with the school curriculum.
I do not know if that has occurred, but I am sure I will hear about that at the trial, which is to occur in a couple of months’ time.
Order 35 is:
If the police attend upon the residence or any place in which the child spend time, then the parent who has care and control of the child at that time shall inform the other parent of the police attendance and details of such attendance in writing within 48 hours.
There is evidence before me about this, and as I will explain, the police attended upon the father. But there is no evidence before me that the father has complied with this order.
It seems the police have attended on the mother as well, but that is in circumstances where it seems she did not have the child with her.
Order 36 requires:
If a parent is hospitalised due to mental health reasons, they will immediately facilitate advice being provided to the other parent of:
(a) The reason for treatment;
(b) Whether such treatment involves an admission to hospital; and
(c) The likely duration of such treatment.
There is no evidence before me that the father, who ultimately was admitted to hospital quite recently and for a number of days, complied with that.
As said, the trial was adjourned, those consent orders were put in place and the trial is listed for 30 July this year [2025].
Recovery orders
Recovery orders mean what they say. They are orders designed to recover a child from a parent or other party who abstracted them against the child's best interests. I highlight that - the child's best interests - because the parties proposed orders on 25 September 2024, which I made, being satisfied that they were in X's best interests.
The court’s power to make recovery orders is set out in s 67U of the Family Law Act 1975 (Cth) (“the Act”) and the court has power to “make such recovery order as it thinks proper”. The court is required to consider the child’s best interests as paramount in deciding whether to make a recovery order; s 67V of the Act.
Applications can be brought by a wide range of persons set out in s 67T of the Act. Section 67Q sets out the meaning of a recovery order and in effect defines the scope of orders that the court may make. They include the capacity to require a child to be returned to a parent or person with whom they live and additionally authorising the search of vehicles, vessels or aircraft to find the child.
How recovery orders authorise or direct people is in s 67R of the Act. Most commonly what occurs is that recovery orders are directed to the police who then take possession of the child - effectively an arrest of the child - and take the child to the person designated in the order. Obviously, that is usually the applicant.
The provisions that I have just read out with respect to recovery orders fall within Part VII of the Act. That means, as I have already said, X's best interests are paramount.
Material
The mother relied on the following documents:
·Amended Application filed 11 April 2025;
·Affidavit of Ms Gibson filed 31 March 2025;
·Affidavit of Ms Gibson filed 11 April 2025;
·Outline of Case filed 15 April 2025; and
·Costs Notice filed 15 April 2025.
The father relied on the following documents:
·Response to an Application in a Proceeding filed 15 April 2025; and
·Affidavit of Mr Battersby filed 15 April 2025.
The following documents were made exhibits:
·The annexures to the parties’ respective affidavits, as required by r 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Exhibits 1-3;
·Discharge Summary of the Father from B Hospital dated 3 April 2025, Exhibit 4; and
·Letter of C Psychology dated 16 April 2025, Exhibit 5.
Background
The mother was born in 1990. She says she is in reasonably good physical health, but is in receipt of a disability support pension for anxiety and depression.
The father was born in 1976.
The parties were in a relationship from August 2016 and separated on or about 10 June 2017. The mother says, and it is not for now but for trial, that the relationship was – as short as it was - affected by domestic violence, illicit drug use and mental health issues.
As said, the parties have one child, X born in 2017. He is enrolled at D School.
The mother also has another child, E. E is not a subject of the proceedings; the father is not the child’s father. E is two years of age. I pause to observe, as the Independent Children’s Lawyer (“ICL”) did in submissions, X and E have a sibship relationship. The mother says she lives close to her mother and her stepfather.
It is common ground, and very much foundational for some of the orders that I have already referred to in the September 2024 orders, that the father has mental health difficulties. He has a diagnosis of a mental health disorder, and he too is in receipt of a disability support pension.
Both parents have had previous admissions to the B Hospital, Mental Health Unit. The mother says, and it will be a matter for trial if anybody disputes this, that her last admission to the Unit was early 2021.
It is now apparent that the father was admitted to the [B Hospital] in [early 2025] for a number of days. This was when the child was in his care. It is the mother's case that this is not the first time that the father has held over the child. She deposes, and I am sure it will be a matter to be explored at trial, that on Father's Day 3 September 2023, the father withheld the child. That was meant to be the first time, after a long period of time, when the father was to have unsupervised time with X.
The mother says the father's conduct was contrary to orders made by Senior Judicial Registrar Best a few days prior to that holding over. X was returned to her care after her mother [the maternal grandmother] and stepfather attended on the father’s home and called the police.
The mother’s case for recovery
The mother's case with respect to the current holding over is as follows.
From February [2025] the father was taking X to school; the mother says she was without a car. A changeover occurred the morning on a day in early 2025, when the father had driven X to school. The mother had asked the father if he could look after X overnight on that date as she was unwell with abdominal pain. Her text message to the father is in evidence before me (Exhibit 1, page 2 of 31).
The following day, around midday, the mother was out grocery shopping. The father called her to see how she was feeling. She said she was “sort of” feeling better. The father said he was going to pick up X from school and bring him back on the Monday because he did not want to drive in the predicted extreme weather on the Friday.
The parties had a disagreement. The mother then proposed she would pick up X from school early, in case the father was going to keep the child. The whole thing was rather unsatisfactory. The mother then deposed that the father changed his mind [about keeping X] so she called the school and cancelled her early pick up.
Around 2:50 pm that day, the mother says the father came to the front door of her home. She unsurprisingly asked, “where's [X]?” She says the father replied and said he [the child] wants to stay with him, the father, because he does not feel safe because of the extreme weather.
X was in the car when this was going on. The mother says X then, “came to the bottom of [her] stairs with a smile on his face randomly saying, ‘I don't feel safe’ and he ran back to the car”.
The parties had what the mother calls assertive [discussions], and I can only imagine it was at least for the mother, who thought she was having her son coming back into her care. She says “assertive”, and I can well imagine she was probably raising her voice.
The mother went out to where the father's car was parked and asked the child to get out of the car. The father put the front passenger window down an inch, according to the mother, and then she asked if the window could be wound down so she could talk to the child. The mother deposes she was worried the father was not thinking logically and rationally.
The father accused the mother of domestic violence, and I have no doubt she was raising her voice. He said he was going straight to the police and took off quickly with X in the back of the car. That was earlier this year [2025].
The child has not seen the mother since.
In her first affidavit, the mother put into evidence a lot of emails that she sent the father trying to spend time with X, but also in a child focused way, making sure X's medical needs were being met. In one email she proposed to drop medicines over to the letter box and asked the father to make sure he got them out so they did not melt in the heat.
I will come to what the father says about the mother in due course, but at this point, the “serious concerns” the father says he has about the child's care with the mother are matters that the mother denies. The mother also said that the father never raised his allegations with her.
Curiously, the father sent the mother an email on 26 February 2026 about how well things were going. I will return to that.
The mother says that at approximately 1:00 am on a date in early [2025] (so X is still within the father's care contrary to orders) police from the Suburb F [police] station knocked on the door of her home and informed her a job had been put out a couple of hours beforehand to do a welfare check on the father's mental health.
The mother deposes that at 4:00 am she received a phone call from the same officer informing her the father and X were located at an address, the father had been taken to the B Hospital and the child was taken to his mother's [the paternal grandmother’s] home.
It seems common ground that the paternal grandmother withheld the child as well. Submissions were made on the father's behalf that she [the paternal grandmother] was not a party, but she certainly did not comply with the consent orders that were made in September.
The father takes great umbrage that two days later, the mother's solicitor wrote to the paternal grandmother and hand delivered a letter to her. That is not surprising. I do not accept the father's submissions, which he must have instructed his solicitor to make, that that was an unprofessional thing to do. The reality is the child should have been with the mother but instead was with the paternal grandmother. It comes as no surprise then that a letter was sent to her.
The mother denies the father's allegations and also says that the paternal grandmother did not raise any of the specific allegations the father now makes about her.
The mother has been up front with the court and indicated she had tested positive for amphetamines and methamphetamines in an October 2024 test. This was, of course, after the [September] orders were made. There is no evidence before me that assists in understanding whether that was in fact a consumption of drugs before the orders were made, or after.
The mother deposes it [the illicit drug consumption] was before the [September] orders were made, but the evidence on that does not allow me to make a finding one way or the other. As I have already alluded, there will be a trial in July [2025] and I am sure that will be tested in cross-examination.
The mother also deposed she tested positive for codeine in a test undertaken in January 2025, but had been prescribed codeine by a dentist for a tooth extraction. Again, that is a matter that will be no doubt tested at trial.
The mother is up front in deposing to her lapse in marijuana use in October last year and in January this year. As I have already said, the mother's vulnerability to drugs were well known and were covered by detailed orders in the September 2024 orders.
The mother says she has regular appointments with Ms G, a counsellor at the Suburb F Alcohol and Drug Service. I am not told much more than that but am sure that matter will be examined at trial.
The mother deposes to her concerns about X not being given his asthma medication appropriately. The mother also deposed in her first affidavit to concerns that the child had not been attending school since early 2025.
I referred before to an email that the father sent the mother on 26 February [2025] at 7:27 pm (Exhibit 1, page 22 of 31). It is useful to read out part of that into the record. It is from the father to the mother and says in part:
Dear [Ms Gibson],
I would just like to take the time to thank you for being really cool lately.
Things started a bit rough and I’m sorry for my part in that but I’ve really noticed the change and I hope we can continue like this.
I know you have been going though [sic] hard times and I understand, I don’t mind helping where I can to make things easier.
The father talks about some other things and then goes on:
The way things are going I see no need for a trial and will be very happy to finalise the court stuff at our mediation that is coming up soon.
It will be good to put that chapter behind us.
He then says, in a good bit of disclosure:
I have my psychologist appointment tomorrow and I can’t wait to tell her how good things are going and that I’m really happy.
Stay strong things will get better soon when you have your car back, I think your doing really well and it shows how resilient you are when things are tough, I admire that in people.
Kind Regards,
[Mr Battersby].
It is useful to keep in mind the date of that email - 26 February 2025.
On any reading of that email, it would be impossible to draw even the vaguest of inferences that the father had any concerns about the child's care with the mother or the mother's capacity to parent. Indeed, I refer to parts of the submissions from the mother, being the decision of Bond & Dalton (No 2) [2020] FCCA 2978 at [46]. The gist of that is if the father had concerns about the mother, then (a) he would not have entered into the consent orders he proposed in September, and (b) I extrapolate that if he did [have such concerns], he would not be writing the kind of email that I have just read into the record.
The mother’s affidavit is up front about and attaches her positive October [2024] amphetamine and methamphetamine drug screen. It is negative for all other matters. She attaches a further drug screen collected in January 2025, which is negative for everything except codeine and she deposed about that too.
Finally, she attaches the child's Student Official Absence Report, which sees the child out of school in early [2025] for an extreme weather condition - although I am not sure that was actually the date of the extreme weather event.
On this record, the child was then absent from school from approximately a month in early 2025, the last day of which - as will become apparent - is after the date for the school’s approved absences [for the child].
The mother did the court the courtesy of providing an updating affidavit of 11 April 2025. She said that she understood from emails received from the father that the father had been discharged from the B Hospital and that X was again living with him. She attaches an email from the father [dated 5 April 2025], the irony of which is obvious, when he says, “I think its [sic] very wrong to alienate Family” (Exhibit 2, page 2 of 10).
This is in circumstances where he has allowed some phone conversations between X and the mother but has not allowed any time since early 2025 being more than a month ago. This is notwithstanding best interest orders were made in September [2024].
The mother says she did speak to X on 4, 7 and 8 April [2025], but not otherwise. She deposes and it is common ground that at the date of that [updating] affidavit, the father had not provided her with: the reasons for his treatment; advised her that he had been hospitalised; or, informed her of the length of treatment. I have already read out the order, which required him to immediately do so.
I accept the father might have been in a bad way, but the Order is not actually directed at the father, it is about getting advice [to the mother]. So, his mother [the paternal grandmother] plainly would have been a person who could have given the mother the kind of advice that is set out in the consent order.
There is force in the ICL’s submission, although not something I can find today, that the reason the father withheld the child from school was so the mother could not pick up the child. There is an evidential basis for that - when we go back to the to-ing and fro-ing between the parties [earlier in the year] when the mother was going to pick the child up early from school for fear that the father would take the child contrary to orders.
The mother attaches an email from the father to which I have already referred, dated 5 April 2025. So that is after the father held over the child. In that email he says, “I think its [sic] very wrong to alienate Family”. It is an interesting thing to say given the circumstances where the child is not seeing his mother contrary to orders.
The father proposed attending a mediation session at the H Children's Contact Centre“to make a temporary consent agreement so you can see [X]”. So, it seems he is saying ‘if we can enter into an order, you can see the child’.
But there is an order in place.
The father said, “[X] is still very much afraid of setting you off for [E’s] [sic] sake, he is fearful for the safety of his brother”. The father then says some other things about X. He goes on to say:
I care about you [Ms Gibson] even though you continue to falsely accuse me and paint a different picture of the truth, you will always be [X’s] mother.
…
I even sent you a letter of appreciation on how well things were going between us.
So let us keep in mind there was the father’s 26 February email and this one is 5 April, the relevance of which I will address when I turn to the father's case. He goes on:
[X] tells us - whoever “us” might be, perhaps his mother - you have a drinking problem, there are avenues for help like AA, but first you must be able to be honest with yourself...
And his penultimate paragraph:
I am for you, not against you
Yet that is now after a month of X not seeing his mother.
The mother then attaches a further drug screen test from April 2025. Everything in that is negative. There is also the ability for urine testing [in the orders] as well.
In short, despite the father saying the child says the mother has a drinking problem, there is no actual corroborative evidence of that.
The father’s case for resisting the recovery
I now turn to what the father says.
The father says boldly at paragraph two of his affidavit:
I have serious concerns for [X's] safety …
His affidavit was sworn on 15 April 2025 and that is after the [February] email that he sent the mother saying how proud he was of her and after the [April] email that I have just read. However, on 15 April 2025, the father deposed:
[In] February 2025, [X] told me about an incident at the Maternal Grandmother’s house where the maternal grandmother filled up a tub with water and threatened to down [sic] him. This happened after she had forced him to do the washing up and [X] had refused.
That is a serious and significant allegation to make. Yet there is nothing about that in the father's email to the mother on 26 February [2025], which is in glowing terms of the mother. There is nothing about that in the more recent [5 April 2025] email that I have just read out either.
The father also said that in early [2025], X told him, “the Mother has been hitting him when she is drunk, and that the Mother is regularly drunk and that he is scared of her when she is drunk as she has violent outbursts”.
There are orders about this and there is nothing new in what the father says. There are orders in place that deal with each party's vulnerabilities.
According to the father, “[X] also told me that on one occasion when the Mother was angry she pushed over his brother’s cot and that it almost fell on him.”
I have no idea when this is said to have occurred.
X has also disclosed, to use the father's word, “the Mother constantly yells at him and it is becoming more frequent”. The father says that on a weekend in early [2025] he reported a domestic violence incident to the police because the mother was being aggressive towards him in front of X.
This is in circumstances where the father was holding over the child, and I have no doubt that the mother was at least agitated. It will be for the trial whether I find that the mother was in fact acting in a way that was responsive to the situation she found herself in, or, was an act of violence, or, both.
The father says in some hearsay, albeit where s 69ZT of the Act applies, that the Department of Families, Seniors, Disability Services and Child Safety (“Child Safety”) advised him to keep X in his care. I am sure a subpoena will issue for the Child Safety records for the trial and it will become clear whether any such advice was in fact given.
With respect to X’s schooling, the father deposes that X has an exemption [from attendance] from the school. The exemption from the school is for “family circumstances”. I have no idea what that means, but it certainly does not say the application for exemption was because of family violence, or, because the maternal grandmother had threatened to drown the child, or, the mother was hitting him. I do not know what “family circumstances” mean, and there is nothing in that exemption approved by the school other than “family circumstances”.
I also note that the exemption [from attendance] was to a particular date in early 2025, but as I have already indicated, the school records reveal the child was [still] withdrawn from school after that date. That too will be a matter to be determined at trial.
Paragraph 22 of the father’s affidavit is ultimately very concerning. It says this:
In [early] 2025, I was admitted to the Emergency Department of the [B Hospital] and then moved to the short-stay ward, where I was placed on a drip as my CK blood levels were severely elevated […] and required monitoring for the next few days. As my mental health also required reassessment, I was moved to the East Wing for this to be completed. The only other medication I was provided was Valium to manage stress.
The ICL’s submission, which I accept, is that the father has minimised what actually happened when he was admitted to the B Hospital. I now have before me the father's health records (Exhibit 4), which were not provided at the time, and certainly not [provided] to the mother or ICL at any earlier time.
What the father says in that paragraph [in his affidavit], is again highlighted, “As my mental health also required assessment, I was moved to the East Wing for this to be completed. The only other medication I was provided was Valium to manage stress”. The father's solicitor valiantly tried to submit that the father was not minimizing his mental health issues because he was focused on his physical health. When I come to Exhibit 4, which is the admission record, it is hard for that submission to be sustained.
The father then sets out his proposal: that the child's time with the mother be suspended until the final hearing or it is to be supervised.
The father makes much [in his affidavit], as did his solicitor [in submissions] of the conditions that the mother is to comply with. But that respectfully is the pot calling the kettle black. Plainly, the father too has not complied with some of the terms of the orders.
The father rightly identifies that the mother's hair follicle test came up positive for amphetamines and methamphetamines. But the ICL makes a submission, and it is made with force and I accept, that the mother at least has been up front with her failings. Whereas, when the father’s paragraph 22 of his affidavit is compared with Exhibit 4, the father has not been so up front.
The father then attaches some documents, including a mental health plan he secured for X, dated 14 April 2025 (Exhibit 3, pages 2-4 of 9). That refers to “psychological vulnerability”, whatever that might mean. It refers to providing support regarding the “current ongoing emotional trauma”. I have no idea what that means either. I am sure they will be explored at trial. Keep in mind by this [14 April] date, the child has not been seeing the person with whom he was meant to live, albeit on conditions, by the best interests order of September last year.
The father also attaches a consultation note with X's doctor dated early 2025 (Exhibit 3, page 6 of 9). That says “BIB” (brought in by) “father and grand mother”. It is not clear on that document whether the father was in the session, but it certainly seems he gave plenty of information.
It relevantly says:
[X's] father reports concerns about domestic violence involving [X] and also his safety as well as also script for asthma prevention
…
[X's] father has been picking [X] up from school and taking him home every second week for the past month.
On a recent occasion, [X] refused to leave the car when being dropped off at [Ms Gibson's] house, leading to a confrontation where [Ms Gibson] became very aggressive.
This [last paragraph] is not clear - it seems common ground that X was there on the date, got out of the car at one point and then got back in the car and the father drove off. As already referred, whether I find that it [the mother’s conduct] was an act of family violence will be another matter for another day.
This is attributed to X, but again, I note, and accept the ICL’s submissions that it is not clear if X is alone with the doctor or was with the father and/or the grandmother:
[X] states that his mother is drunk all the time and yells at him frequently
she used to hit him but clearly he states not now
That is not what the father says in his material before me, and not what he attributes to X. It goes on:
also [X], himself describes incidents where [Ms Gibson], his mother has been aggressive, including pushing the cot of [X’s] two-year-old step brother, nearly hitting [X]
I have no idea when that [allegedly] occurred.
It goes on that to “avoid a domestic violence situation”, the father left with X and contacted the police, whom he says, “confirmed he did the right thing by not exposing [X] to domestic violence.” Again, I am sure subpoena will issue to the police and at trial, it will become clear whether the police said that or not.
The note says, “Child protection services have not been contacted”, but then it goes on to say, “[X's] father and grand mother as well as himself”, I assume X, “understands the rationale for Child Safety involvement and happy for me to contact them”. That seems to mean the father was not so troubled as to make a notification himself to Child Safety, but was happy for the doctor, who is a mandatory notifier, to do so.
There is nothing in that [consultation] note of early [2025] about the [February 2025] allegation of the maternal grandmother threatening to drown the child. There is nothing in the note about the child being hit now.
The final document the father puts before the court is one to which I have already referred - the application for exemption from school (Exhibit 3, pages 8-9 of 9). It approves ten days’ absence [from school] up to a date in March 2025, even though the child was withheld from school after that. All it says is “family circumstances”.
Exhibit 4
I now turn to Exhibit 4, and it is very concerning reading. But again, it is in circumstances where the parties entered into the orders of 25 September 2025, well alert to each party's vulnerabilities.
Exhibit 4 is the father's discharge summary. He did not depose to or do the court the courtesy of letting the court know he was actually admitted between two dates in early 2025. He was far from transparent on what is a somewhat lengthy stay.
He also did not tell the court that he was in hospital as a result of an Emergency Examination Assessment; an EEA. It [Exhibit 4] says this:
EEA. Absconded from own home with 7yo son, found running through the rain by QPS. Religious delusions stating he will go to heaven with his son. May have taken substances tonight, other people in house. Child @ G’mothers. Hx [mental health disorder].
The note goes on to say:
Sexually inhibited behaviour Told female staff member to “move away because you are too tempting”
The same first page of the discharge summary says the father was “Seated throughout review, appears heightened and anxious”. The note then goes on to say other things and then says:
He was admitted under a treatment authority after there were concerns that [Mr Battersby] had kidnapped his son, he was found to have CK […] on admission which has since resolved. He is partially insightful and stating this presentation is in the context of increased stress dealing with ongoing legal case for full custody of his child after the mother was found to be on amphetamines…
This admission is early 2025. It is after the email of 26 February 2025, when the father says he is happy with everything, “really cool lately”, and he proposes that they enter into consent orders and a trial is unlikely [to be needed]. The mother was found to be on amphetamines back in October 2024; this is not a new factor.
It goes on to say:
The CK rise was likely in the context of trying to walk to his father's house whilst carrying his son.
I can only imagine that that was completely frightening for X. The note goes on:
When requiring admission [Mr Battersby] is very conspiratorial with grandioise [sic] narcissistic obviously fabricated stories. This can lead [Mr Battersby] to act in bizarre ways and put himself and others at risk.
It will be open for submissions at trial, just as it was said by the ICL today, that the bizarre way the father acted was to try to “kidnap” the child. Kidnap is the word used in the Exhibit about walking the child in the rain to his father's house. It is not my word.
The note goes on and says he is compliant with medications and has reasonable insight into his illness “when well”. The submission is made by the ICL, and it is well made, that at least on admission [to hospital], the father was not well. That is a safe conclusion that can be drawn from the medical records. It was not suggested otherwise to me in submissions.
The note goes on, “At baseline [Mr Battersby] is fairly conspiratorial and partakes in magical thinking, states he does this as a form of escapism since he has abstained from drugs”. That indicates a strategy on the father's behalf. But it has to be observed that the father was admitted to the B Hospital under an EEA, stayed in hospital for a number of days and that the child was there in the lead up to his admission with the police collecting him. The discharge summary notes that his presentation leading to admission was “likely a brief psychotic episode in the context of underlying [mental health] disorder”. There were no concerns of regression during admission and there was no suicidal or homicidal ideation.
The ICL's concerns out of this, and it concerns the court too, is that the father did not disclose the reasons for his admission or the length of his admission. There is a requirement in the Order that he do so.
Rather, the only way to look at paragraph 22 of the father's affidavit is one of minimising what must have been a traumatic episode for the father, but the child was involved in it as well.
The note goes on to say the father has poor judgment and is impulsive when unwell, but otherwise expressing good judgment on leave and on the ward. It assesses risk as “Risk to self is through misadventure when unwell”, and risk to others is risk “through misadventure as with son prior to admission”.
It notes the father is next to see his General Practitioner (“GP”) tomorrow, 18 April 2025, which is actually Easter Friday. The mother and the ICL make a submission, and again well made, that the father's engagement with his GP is critical. There is a referral as well to the acute care team for short-term follow-up to make sure “no relapse in paranoid thinking and psychosis have occurred”.
Disposition
What is before me is of far greater concern with respect to the father, than the mother.
The father's “serious concerns”, as he calls them in his affidavit, are largely not made out, for example: in the record of the GP; in the mental health treatment plan; and, most critically are not referred to by the father in his February email and his subsequent email of April. They are matters he raises in his affidavit, but not in his other documents.
What is before me though is an order that was determined by the court to be in X's best interests, made on 25 September 2025. There is nothing that the father says about the mother that persuades me I ought revisit that order. But equally, there is nothing that the mother puts before me in evidence right now, that persuades me that it is in X's best interest that his time with his father be suspended or somewhat reduced.
Exhibit 4 is confronting reading, but the father was discharged from the hospital. It will be interesting to see how he sees his GP on 18 April [2025], being tomorrow. The father was clearly unwell at the time of admission, but was discharged with the medical report at Exhibit 4 saying, he was “expressing good judgment on leave and on ward”.
I am satisfied that the orders that are in place, being the 25 September orders, with all of the conditions that acknowledge each party has vulnerabilities, remain in X's best interests.
Accordingly, that means I will make a recovery order and will now hear from the parties on the terms of that. The three legal representatives were at one that if I made the recovery order, it would be in X's best interests that the father deliver the child to the mother, as opposed to the police effectively arresting the child.
There is great force in what the ICL says in that the child needs to see the father permitting the child having a relationship with the mother. The child certainly has had so many upheavals in his short life and it would be preferable that the police not be involved. That said, the mother proposes that a recovery order lie in the registry, and if it is required, it can be uplifted.
It is also important that X be reunited with his half-brother (as he was called), but as far as X and E are concerned, they are brothers; they are a sibship.
For those reasons, I will make a recovery order, but will now hear the parties on the terms that ought to apply to that.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 29 April 2025
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