Hinrichs & Hinrichs
[2024] FedCFamC1F 870
•17 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hinrichs & Hinrichs [2024] FedCFamC1F 870
File number: MLC 9627 of 2020 Judgment of: HARTNETT J Date of judgment: 17 December 2024 Catchwords: FAMILY LAW – PARENTING – Relocation – Where the father seeks sole decision making responsibility – Where the mother seeks joint parental decision-making responsibility – Where the father seeks relocation of the children to Region B as opposed by the mother – Where the mother spends substantial attendance time with the children – Where the mother experiences mental health difficulties – The father have sole decision making responsibility of the children – Relocation be permitted – The children live with the father – The children communicate and spend time with the mother – The mother continue to attend upon a psychologist and receive treatment. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VIII, ss 4AB, 60CA, 60CC, 61CA, 61D, 67Z
Family Law Amendment Act 2023 (Cth)
Family Law Amendment (Information Sharing) Act 2023 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Isles & Nelissen (2022) 65 Fam LR 288
Russell & Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 189 Date of hearing: 28 October – 1 November 2024 Place: Melbourne Counsel for the Applicant: Mr Hutchings Solicitor for the Applicant: AMT Legal Counsel for the Respondent: Mr Turner Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms Glaister Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
MLC 9627 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HINRICHS
Applicant
AND: MS HINRICHS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
17 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole decision-making responsibility for the children X born 2015 and Y born 2016 collectively (“the children”) in relation to major long term issues including but not limited to their:
(a)education (both current and future); and
(b)health.
3.For the purposes of Order 2 herein the father keep the mother informed in writing of any decision he makes in relation to the children or either of them.
4.The children live with the father.
5.As and from 6 January 2025, the children be permitted to relocate with the father to Region B, Queensland.
6.The children spend time and communicate with the mother as follows:
(a)by telephone/FaceTime contact with the children at least twice weekly at times to be agreed and in default of agreement between 6.30pm and 7.30pm on Tuesday and Thursday, save for periods when the children are in the mother’s care and the father shall have telephone/FaceTime contact with the children between 6.30pm and 7.30 pm on Tuesdays and Thursdays during the children’s school holiday periods with the mother.
(b)in Melbourne for one weekend during each of Terms 2 and 3 of the gazetted Queensland school terms, on a weekend as agreed between the parents in writing and failing agreement on the first weekend in June for Term 2 and the last weekend in July for Term 3 and the maternal grandfather or the maternal aunt or other agreed person be in substantial attendance for the weekend in Term 2 of 2025. The father shall meet the cost of the June travel and the mother shall meet the cost of the July travel;
(c)in Region B for up to 4 occasions each year, on weekends from 6.00pm on Friday until 4.00pm on Sunday during the gazetted Queensland school terms, with such weekends not to be consecutive with any other spend time weekends and not coincide with Christmas, nor, commencing in 2025 and each second year thereafter, either of the children’s birthdays, and with the mother to provide the father with no less than 14 days’ notice of her intention to travel to Region B. The mother shall meet the costs of this travel;
(d)in Melbourne for one week during the first and third gazetted Queensland school term holidays, with the first term holidays in 2025 to have the maternal grandfather or other agreed in writing person to be in substantial attendance, and as agreed between the parents in writing and failing agreement in even numbered years from 6.00pm on the first Saturday until 4.00pm on the middle Saturday and in odd numbered years from 6.00pm on the middle Saturday until 4.00pm on the last Saturday. The father shall meet the costs of this travel;
(e)for the long summer holidays as follows:
(i)in 2024/2025 for a period of 3 days prior to the children’s relocation to Region B, with the maternal grandfather or other agreed person to supervise such time and otherwise by written agreement between the parties save that at all times there shall be supervision of such time;
(ii)in 2025/2026 and each alternate year thereafter, for the first half of the holidays;
(iii)in 2026/2027 and each alternate year thereafter, for the second half of the holidays
With the long summer holiday period defined as commencing on the first Saturday following the conclusion of school and concluding at 4:00pm two days prior to the commencement of the new school year.
(f)at such other times as may be agreed between the mother and the father in writing.
7.In the event the children reside in Region B and the mother in Melbourne, all changeovers for the mother’s time with the children in Queensland will be Region B Airport, Domestic Terminal and for the mother’s time with the children in Melbourne will be Melbourne Airport, Domestic Terminal unless otherwise agreed in writing.
If the mother moves her place of residence such that she resides in Region B
8.The children spend time and communicate with the mother as follows:
(a)in 2025 commencing on the first weekend in Term 1 and each alternate weekend thereafter from the conclusion of school (or 10.00am if a non-school day) on Friday until 6.00pm on Sunday.
(b)in 2026 and each year thereafter the weekend cycle in Order 8(a) shall be extended to conclude at the commencement of school (or 10.00am if a non-school/childcare day) on Monday.
(c)for the first half of the Term 1, 2 and 3 school term holidays commencing at the conclusion of school on the last day of the school term and ending at 5.00pm on the middle Saturday.
(d)for the first half of the long summer holidays in 2025 and in each alternate year thereafter.
(e)for the second half of the long summer holidays in 2026 and in each alternate year thereafter.
(f)at such other times as may be agreed between the mother and the father in writing.
(g)the mother shall have telephone/FaceTime contact with the children at least twice weekly at times to be agreed and in default of agreement between 6.30pm and 7.30pm on Tuesday and Thursday, save for periods when the children are in the mother’s care and the father shall have telephone/FaceTime contact with the children between 6.30pm and 7.30pm on Tuesdays and Thursdays during the children’s school holiday periods with the mother.
9.In the event the parties reside in or within a 100km radius of Region B, and notwithstanding any other orders to the contrary, the children spend time with the parties on special occasions as follows:
(a)for Christmas, the children spend time with the mother as follows:
(i)in odd numbered years from 12.00pm on Christmas Day until 12.00pm on Boxing Day; and
(ii)in even numbered years from 12.00pm on Christmas Eve until 12.00pm on Christmas Day.
(b)for Christmas, the children spend time with the father as follows:
(i)in even numbered years from 12.00pm on Christmas Day until 12.00pm on Boxing Day; and
(ii)in odd numbered years from 12.00pm on Christmas Eve until 12.00pm on Christmas Day.
(c)for Easter, the children spend time with the mother as follows:
(i)in odd numbered years from 4.00pm on Easter Saturday until 4.00pm on Easter Sunday; and
(ii)in even numbered years from 4.00pm on Easter Sunday until 4.00pm on Easter Monday.
(d)for Easter, the children spend time with the father if not otherwise in his care as follows:
(i)in even numbered years from 4.00pm on Easter Saturday until 4.00pm on Easter Sunday; and
(ii)in odd numbered years from 4.00pm on Easter Sunday until 4.00pm Easter Monday.
10.All spend time periods, save occasional holidays are subject to the mother’s provision of suitable accommodation when the children are in her care, whether in Melbourne or in Queensland, meaning a residential property in which the children have their own bedroom/s and access within the same dwelling to amenities such as a bathroom and toilet.
11.The mother provide written evidence to the father in relation to her compliance with Order 10 within 48 hours of a request by him to do so.
12.The parties communicate via ‘App Close’ at all times except for an emergency in which case they shall use telephone or text message.
13.The parties be hereby restrained from being affected by drugs and/or alcohol (and for this purpose, being affected by drugs or alcohol is defined as being unfit to legally drive a motor vehicle):
(a)twelve (12) hours prior to the children being in their care;
(b)when the children are in their care; and
(c)allowing a third party to be affected by drugs or alcohol when the children are in their care.
14.The parties shall immediately inform the other if the children require any attendance at or admission to a hospital whilst in their care and otherwise comply with Order 18 herein.
15.The parties shall within seven (7) days of being requested, sign all documents and do all things necessary to apply for the children’s Australian passports, with the father to meet the costs of such passports and to retain possession of such passports.
16.For all the children’s flights pursuant to these Orders the party paying for the travel provide the other with a written copy of flight details no later than 7 days prior to the intended travel.
17.The mother and father shall be authorised pursuant to this Order and if required they shall do all acts and things and sign all documents and authorities necessary, to allow each of them to:
(a)receive information and have access to the children’s medical and dental records and any registered medical/health professional(s) upon whom either or both children may attend from time to time when in their care;
(b)receive from any school attended by the children, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent;
(c)attend upon the children’s school upon any invitation issued on behalf of his school for any function including but not limited to parent-teacher interviews or otherwise for the bona fide purpose of enquiry as to the children’s welfare, including educational progress;
(d)attend any extra-curricular or sporting activity the children may be involved in through their school.
18.The mother and father shall:
(a)inform each other by either telephone, text message or email of any serious illness, and/ or injury suffered or sustained by either or both children while in their care as soon as practicable following the onset of the said illness or injury;
(b)provide each other with the particulars of:
(i)any treatment or medication required or received by any of the children; and
(ii)the name and address of any treating medical/health professional involved with the children;
(c)be permitted to discuss or receive from the said professionals in Orders 17(a) and 18(b) herein, information concerning the children’s health issues;
(d)strictly comply with any medications or specialist advice concerning the children that is provided in writing to either of them; and
(e)ensure that any prescriptions or prescribed medications are provided for the children and accompany them at changeovers as required.
19.The mother and father be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the children or the other party to or in the presence or hearing of the children or either of them, or from permitting any other person from doing so;
(b)discussing these proceedings with or in the presence or hearing of the children or either of them or from permitting any other person from doing so.
20.The mother provide her current and future treating mental health professionals with a copy of the Family Report by Ms C, and the psychiatric report by Dr D. Otherwise, the mother is at liberty to provide a copy of the Reasons for Judgment and Orders in this matter.
21.Within 28 days hereof the mother do all acts and things to engage with a clinical psychologist if she has not already so, and she attend upon or continue to attend upon such psychologist, or other psychologist as referred by them regularly and as directed by them for the purpose of ongoing therapy, monitoring of her mental health and support for a period of at least 24 months.
22.The mother is to forthwith (following engagement of the clinical psychologist or if attending upon a clinical psychologist forthwith) inform the father in writing of the contact details of the clinical psychologist she is attending upon from time to time for the purpose of these Orders.
23.The mother provide the psychologist/s upon whom she attends in accordance with Order 21 an irrevocable authority to provide to the father directly:
(a)at not less than 6 monthly intervals the following information in writing:
(i)the dates the mother has attended;
(ii)whether or not the mother has complied with directions as to her attendance;
(iii)whether in that psychologist’s opinion, the mother’s mental health is stable.
(b)immediate notification in writing in the event the psychologist becomes aware the mother has been hospitalised for any mental health reason; and
(c)at the expiration of two years from her first attendance, (if the treating professional has not prior thereto advised the father in writing that the mother no longer requires treatment) whether in that person’s opinion, the mother requires ongoing psychological treatment.
24.In the event the mother fails to comply with Orders 21 or 23, or she has not completed two appointments with the psychologist prior to 31 July 2025, then all spend time periods between her and the children shall require that the maternal grandfather or a person agreed in writing between the parties shall be in substantial attendance until the mother has complied with Orders 21 and/or 23 herein and/ or has attended upon the clinical psychologist for a further two appointments.
25.The mother inform the father, or cause him to be informed as soon as practicable, of any hospitalisation of her for mental health reasons, whereupon all spend time periods between the children and her during that period shall be suspended.
26.The parties keep each other informed of their respective residential addresses and provide to the other the details of any change of address within 48 hours of such change. If the mother is not accommodating the children at her residential address when they are spending time with her she is to notify the father of what address the children shall be accommodated at least 7 days before the commencement of any spend time period.
27.The parents be permitted to provide a copy of these Orders to the children’s school and any allied health professionals involved with the children or either of them.
28.The Independent Children’s Lawyer be discharged.
29.Otherwise, all extant applications be dismissed and the matter removed from the list.
30.Pursuant to ss 62B and 65DA of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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 Hinrichs & Hinrichs has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
Before the Court were competing applications for final parenting orders pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
This matter has some litigation history having first commenced in September 2020, upon the then filing of, by the applicant father (“the father”), an Initiating Application. Parenting matters were finalised between the parties by the making of final orders by consent on 6 July 2021. Property matters were finalised between the parties by the making of final orders by consent on 29 July 2021.
The final parenting orders are now sought to be altered by the father, who filed an Initiating Application on 28 April 2023. The motivation behind that Application was the father’s discovery of the mental health difficulties as suffered by the respondent mother (“the mother”), which were impacting adversely upon the parties two young sons.
As part of the orders sought by him, the father sought to be permitted to relocate the residence of the parties’ children from Victoria (where the parties currently live) to Queensland, and more specifically, Region B. The father was raised in Region B and went to school there. He has regularly returned to spend time there. He has the support of the paternal grandparents in his care of the children should he be successful in his application.
The mother opposes the relocation of the children to Region B. She sought the children live with she and the father in a week about arrangement.
Orders sought
The father sought orders including that: he have sole decision making responsibility for the children in relation to major long-term issues; the children live with him; the children be permitted to relocate to Region B; and that the children spend time and communicate with the mother, with various restraints and notifications, on weekends and holidays and special occasion times, together with telephone or FaceTime communications at least twice each week. The father further sought the mother attend upon a clinical psychologist and provide the father updates as to her attendance upon such psychologist, and in the event the mother failed to do so, then that all spend time between her and the children revert to requiring the substantial attendance by the maternal grandfather or the maternal aunt.
The mother sought orders, including that the parties have joint parental responsibility for all long term decision-making for the children; the children live in Victoria and with each of the mother and father in an equal shared care arrangement; the children spend special occasion and holiday time equally with each of the mother and father, and otherwise orders of a more general nature which accorded with those as sought by the father and the Independent Children’s Lawyer (“ICL”).
The ICL, at the end of the trial, sought orders largely in agreeance with that of the father. Those orders were relevantly: the father have sole decision-making responsibility for the children in relation to major long-term issues; the children live with the father; the children be permitted to relocate with the father to Region B, Queensland; the children spend time and communicate with the mother, with various restraints and notifications, on weekends and holidays and special occasion times, together with telephone or FaceTime communications at least twice each week.
MATERIAL RELIED UPON
The father relied upon:
(1)Further Amended Application for Final Orders filed 7 October 2024;
(2)his affidavits filed 7 October 2024 and 24 October 2024;
(3)affidavit of Mr E, the paternal grandfather, filed 7 October 2024
(4)affidavit of Ms F, the paternal grandmother, filed 7 October 2024;
(5)his Outline of Case filed 25 October 2024; and
(6)Family Report of Ms G dated 12 December 2020.
The mother relied upon:
(1)Amended Response to Final Orders filed 17 October 2024;
(2)her trial affidavit filed 17 October 2024;
(3)affidavit of Mr H, the maternal grandfather, filed 17 October 2024;
(4)affidavit of Ms J, the maternal aunt, filed 17 October 2024;
(5)affidavit of Ms K, senior therapy specialist, filed 23 October 2024;
(6)her Outline of Case filed 25 October 2024; and
(7)Department of Families, Fairness and Housing Response to Notice of Child Abuse dated 6 June 2023.
The ICL relied upon:
(1)Outline of Case filed 25 October 2024.
Both parties and the ICL relied upon the Family Report of Ms C dated 2 April 2024 as contained in her affidavit filed 3 April 2024, and the Psychiatric Report of Dr D dated 22 August 2023 as contained in his affidavit filed 22 October 2024.
RELEVANT FACTUAL FINDINGS
In 1982, the father was born in Australia. He was aged 42 years at the time of the final hearing. He is employed full time at L Company as a manager. He is generally in good health although he has suffered situational depression and been made anxious by the circumstances in which he finds himself and the children.
In 1984, the mother was born in Country M. She was aged 40 years at the time of the final hearing. The mother migrated to Australia as a child and is an Australian citizen. The mother claimed to be employed as a sales representative, working on a casual basis. In the giving of her evidence however, it became apparent that she is working on a very sporadic and limited basis. The mother has been diagnosed with multiple mental health disorders.
In 2006, the mother’s child from a previous relationship Ms N was born. She was aged 18 years of age at the time of the final hearing. She was a child when the parties commenced to cohabitate, and the father was committed to her care and advancement.
The parties met in 2007 and commenced their relationship in 2008. They commenced to cohabitate in 2010.
In 2014, the parties married.
In 2015, the child X was born. He was aged 9 years at the time of the final hearing.
In 2016, the child Y was born. He was aged 8 years at the time of the final hearing.
On 19 December 2019, on the mother’s evidence, the parties separated on a final basis under the one roof.
On 9 January 2020, the mother vacated the former matrimonial home taking the children and Ms N with her. The mother, the children and Ms N took up residence at a centre close to the former matrimonial home. The father remained in occupation of the former matrimonial home in Suburb O.
On 24 January 2020, on the father’s evidence, the parties separated on a final basis. Nothing turns on the date of separation. The father was shocked by the mother’s decision to separate. It was the mother’s decision to vacate the former matrimonial home.
In early 2020, a final intervention order (“IVO”) was made on application of the mother and by consent with no admission by the father. The IVO named the mother and the children as protected persons and the father as the respondent. Its duration was 12 months. Shortly after, the parties agreed in respect of the care of their children on an equal spend time arrangement in three-day cycles.
Between March 2020 and April 2023, there were six s 67Z of the Act reports prepared by the Department of Families, Fairness and Housing (“DFFH”) regarding the children. All reports were closed at the intake and assessment phase.
In March 2020, the DFFH prepared a report following concerns raised for the children’s exposure to the poor relationship between the mother and their older sibling Ms N. It was reported the children were exhibiting poor emotional and behavioural regulation. Follow up by DFFH indicated no concerns for the safety of the children in the mother’s care.
On 4 September 2020, the father commenced proceedings in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)).
On 12 December 2020, Ms G prepared a Family Report in which she recommended the children spend six nights a fortnight in the care of the father, and eight nights in the care of the mother, until the commencement of school in 2022, when further consideration should be given by the parties to an equal shared care arrangement.
In early 2021, the final IVO against the father expired.
On 6 July 2021, final parenting orders were made by consent. Such orders had as their foundation the recommendations of Ms G though the children spending equal time with each of their parents on a week about basis was agreed by the parties to commence earlier than recommended by Ms G, namely July 2021. Otherwise, the children spent an additional three and a half hours on a school night with the mother, in the father’s week. The parties had equal shared parental responsibility for the children. School holidays and special occasion days were shared, and the children communicated with the parent in whose care they were not, on a regular basis. Further orders made were generic in nature.
On 29 July 2021, final property orders were made by consent between the parties. The mother’s joint proprietorship in the former matrimonial home was transferred to the father, with a contemporaneous refinancing by the father of his borrowings and a lump sum payment made to the mother of $100,000; a superannuation split, with $53,466 allocated to the mother out of the father’s superannuation interest; and the mother retaining her property interests in her animals and related equipment and items.
In September 2021, being just over two months following the making of the final parenting orders, the mother had contact with P Mental Health Service due to her increased stress in the context of a fractious family separation as claimed by her. She was not taken on for treatment at the time.
In February 2022, the DFFH received a report detailing concerns for the mother’s use of physical discipline towards Ms N. Insufficient information was provided, and the matter was closed at intake and assessment with no further follow up.
In mid-2022, the mother was admitted to the emergency department of Q Hospital in relation to mental health difficulties from which she was suffering.
In September 2022, the mother attended upon a private psychiatrist, Dr R, after calling his clinic and stating that she was suicidal.
In October 2022, the DFFH prepared a report which referred to the mother’s hospitalisation consequent upon her poor mental health functioning and suicidal ideation. The mother was assessed and provided with medication. No significant concerns were raised by the DFFH regarding the impact of her mental health on the children’s wellbeing and safety.
In late 2022, the mother was hospitalised in the S Hospital Emergency Department.
For a short period, the mother was treated at S Hospital due to her further suicidal ideation. The mother was diagnosed with generalised anxiety disorder. It was reported she had called an ambulance due to anxiety attacks and suicidal ideation triggered by psychosocial stressors.
Following this period, the mother was admitted to the T Clinic, a private psychiatric unit, and was commenced on multiple medications. The mother was self-discharged. In the discharge summary, it was reported the diagnoses were multiple mental health disorders. The mother was noted to present with compulsive behaviour, anger, impulsive spending and multiple overdoses. It was noted her anxiety had worsened following her ceasing of a medication in August 2022.
From late 2022 to early 2023, the mother had contact with P Mental Health Service for support for her suicidal ideation and anxiety issues. The mother was discharged to the care of her general practitioner. It was noted she was not coping well with her medication and experiencing adverse side effects.
In mid-March 2023, the mother presented to the emergency department at U Hospital. The mother stated, hysterically, to the triage counter “I do not want to be alive anymore” and that she planned to take all her medication with a bottle of alcohol.[1] The mother gave an account of escalation of anxiety due to weight gain. The mother was discharged the next day.
[1] Father’s affidavit filed 7 October 2024, paragraph 54.1.
In late March 2023, the mother sent the father a text message requesting he collect the children from their school during her week of care for them. She stated she had gastro. The mother however was hospitalised for her ongoing mental health dysfunction. Prior to that time, the mother had not informed the father of her mental health issues or diagnoses as they had arisen. She had hidden them from him.
The 2021 final parenting orders ceased in their practical operations.
A few days later, the mother involuntarily presented to the Q Hospital emergency department. The mother had been brought in by Police, who had been told by the mother that she had planned to harm herself in a public place. She was diagnosed with a mental health disorder and was placed on an assessment order under the Mental Health and Wellbeing Act 2022 (Vic).
On the following day, the mother was admitted to the V Hospital after absconding from the Q Hospital the night prior. She was diagnosed with multiple mental health conditions. She was labelled a risk due to a disclosure she was planning on harming herself in public. She reported being overwhelmed with anxiety, feeling numb and disassociated when Police had arrived at her home the night before. The impression was she was suffering from a mental health disorder. The V Hospital diagnosed the mother with psychosocial distress.
On the following day, the father received a text message from the mother advising she was “unwell and in hospital” and “quite possibly will not be discharged by the weekend”.[2] The mother did not advise the reason for her hospitalisation or where she was staying.
[2] Father’s affidavit filed 7 October 2024, paragraph 23.
On the following day, the father FaceTimed Ms N. During their conversation, Ms N stated she had not had contact with the mother since a text message on 14 January 2023.
On the following day, the mother was discharged from the V Hospital to a Psychiatric Unit in Suburb W.
On the following day, the mother messaged the father to advise she was “still in hospital and will not be discharged today: please let me know if you would prefer to collect the children or I can make arrangements for their care if you prefer”.[3] The mother was due to collect the children from school that afternoon. The father advised he would collect the children. The mother advised she was hoping to be discharged over the weekend but was waiting for test results. She did not inform the father where, and why, she was hospitalised.
[3] Father’s affidavit filed 7 October 2024, paragraph 25.
In early April 2023, the father spoke with the school principal. The father told the principal he had not heard from the mother for some days and asked if the mother had attended the school to collect the children. The principal stated she was aware the mother was unwell and struggling with mental health issues, and suggested the father contact the mother’s parents. The father spoke with the maternal grandmother that afternoon. The maternal grandmother advised the mother had cut ties with her family and that Mr Z, the mother’s partner at the time, had contacted the maternal grandparents to advise she had been hospitalised in a psychiatric ward.
Later that same day, the father received a message from the mother stating she had been discharged from one hospital and transferred to another. She was receiving treatment and recovering in hospital. She advised she could have either her parents or Mr Z care for the children.
In April 2023, the DFFH prepared a report in relation to concerns notified to them as to the mother’s mental health. Follow up information indicated the mother continued to address her mental health concerns and engaged with professionals. There was no role identified for Child Protection and the matter was closed at intake and assessment.
In early April 2023, the mother was discharged from the Psychiatric Unit in Suburb W. At discharge, the mother was crying. She stated she did not feel supported, and claimed the father had told her she would not have contact with her children. The mother began drinking. The mother then attended a park wherein a random man, as claimed by her, offered her illicit drugs which she took with him. It is probable this man was a person known to the mother. The mother also had an item which she stated she intended to harm herself with. Her friends had reported her missing. The mother returned to the Psychiatric Unit but could not recall how she got there.
On 10 April 2023, the mother informed the father she had been discharged from “the hospital” a few days earlier. She had taken a few days to adjust to her medication and was exhausted. She proposed seeing the children for a few hours on 12 April 2023.
On 12 April 2023, the father messaged the mother asking her about her diagnosed illness, the prescribed medication she was taking, and her prognosis. The mother refused to disclose any medical information to the father and accused him of tormenting and bullying her and causing emotional trauma to the children. She did not see the children.
In mid-April 2023, the mother was admitted to the V Hospital Emergency Department after the father refused to facilitate the children’s time or contact with her. The mother had taken a ‘handful’ of medication, drank half a bottle of alcohol, and engaged in dangerous behaviour with the intention of harming herself as claimed by her. The mother had fallen asleep and fallen from a height. She reported ongoing thoughts of suicide and self-harm. The mother was admitted to the psychiatric Inpatient Unit at V Hospital.
On the same date, the father received a text message to contact a Police officer at Suburb AA Police. The father spoke to a Police officer who asked if he knew the whereabouts of the mother who had been reported as missing. The Police officer said the Police were concerned about her mental state and a potential for self-harm. The father told the Police officer he had no idea where the mother could be. He provided the Police officer with the maternal grandmother’s phone number and Mr Z’s name.
On the following day, the maternal grandmother contacted the father stating the Police officer had contacted her and advised the mother had been located. The mother had been readmitted to the psychiatric unit at the V Hospital. The mother messaged the father that night and requested to see the children.
On the following day, the father facilitated a phone call for the children to speak to the mother for half an hour. The mother told the child X she was in hospital due to feeling sad the father would not let her see X for a special occasion.
In mid-April 2023, the mother was assessed. The mother reported ongoing suicidal ideation. It was noted there was a significant deterioration in her mental health in the preceding few months. Specifically, worsening anxiety, poor sleep and suicidal ideation.
On the following day, the father contacted V Hospital and was informed by a staff member that the mother remained a patient in the psychiatric Inpatient Unit under the care of a team of doctors.
In late April 2023, the mother was admitted to BB Mental Health Service.
Two days later, the mother returned to BB Mental Health Service from a brief leave period, with large pupils, elevated mood and acting erratically. The mother underwent a saliva drug test and tested positive for illicit drugs. Nursing staff reports noted that the mother, on being told of the positive result, became defensive and argumentative and asked to be discharged. In her evidence, the mother claimed her boyfriend at the time had used illicit drugs, and that she had been kissing him which was the cause of her positive test result. The mother in her evidence conceded that was a false claim and that she had used illicit drugs on that occasion.
The mother was later discharged for follow up through the P Mental Health Service. She was medicated on multiple medications and referred for case management through CC Clinic. The diagnoses on discharge were multiple mental health disorders.
On 26 April 2023, the mother removed the children from school without the father’s knowledge or consent. The mother claimed that she intended to spend the evening with the children from 3.30pm to 7.00pm in accordance with the existing Court orders.
On 28 April 2023, the father filed the Initiating Application in this proceeding. He sought an urgent hearing given the circumstances of the mother’s hospitalisation for suicidal ideation. The father was anxious to ensure the mother could not remove the children from their school and take them into her care. He was concerned as to the mother’s mental health issues and the risks she might pose to the children. He also commenced to home school the children due to his fear of the mother removing the children from school without his knowledge or consent, and the school’s inability to intervene.
On 29 April 2023, DFFH inquired into the protective needs of the children after receiving notifications that the mother’s mental health had deteriorated, and the father was restricting the children’s relationship with her. There were allegations the mother’s partner. Mr Z, was using illicit drugs, and the father was withholding the children from school to prevent contact between them and their mother. DFFH concluded there was insufficient evidence to indicate the children were at immediate and significant risk of harm requiring further statutory intervention.
In May 2023, the father applied for an IVO in the Suburb AA Magistrates Court seeking the order extend to the children’s home and school, and an order under s 68R of the Act suspending the operation of the final parenting orders until further order. The Magistrate made an order the mother not come within 200 metres of the children’s home but declined to make an order with respect to the children’s school or a s 68R of the Act order. The father was granted an interim IVO naming he and the children as protected persons and the mother as the respondent. The mother did not thereafter spend time with the children until 15 June 2023.
On 5 May 2023, the mother received a post-discharge follow up phone call with a psychiatric nurse. The mother reported she was doing “alright”, sleeping well and had gained weight on medication.
On 8 May 2023, the father received an email from the children’s schoolteacher, responding to his email requesting learning materials for the children. The teacher responded she could not provide the father with home schooling materials but encouraged the children’s reading daily and accessing the “My Numeracy” online resource. The father ensured the children read daily using Decodable Readers Online. The father also purchased age-appropriate learning materials including a book titled “Targeting Phonics” and a word hunt puzzle book. He accessed the online resource.
On 12 May 2023, DFFH prepared a further report in response to notifications as to a decline in the children’s emotional well-being because of their ceasing contact with their mother. DFFH contacted the school who advised the father was withholding the children from school to keep them from the mother’s care. The school held concerns for the children’s learning and education, and their general wellbeing, and advised that the school had provided a referral for the mother to DD Family Service for parenting and legal assistance.
On 17 May 2023, the school principal conducted a welfare check via a telephone conversation with the children. The principal offered the father some home-schooling options and arranged for the children to spend time in the school environment in June 2023 whilst the father waited and worked in the school’s reception.
On 1 June 2023, a further notification to DFFH was made claiming the father had not taken the children to school since late April 2023 and was negatively impacting their relationship with the maternal family due to his withholding of the children from the mother. It was assessed by DFFH there was insufficient evidence to indicate the children were at immediate and significant risk of harm requiring further statutory intervention. The matter was closed at the intake and assessment phase.
On 6 June 2023, the mother consented to an order in this proceeding that pending further order, she would not attend the children’s school nor collect the children from school. As a result of this order, the father withdrew his application against her for an IVO to protect him and the children.
In June 2023, both children returned to school for full time attendance.
On 15 June 2023, orders by consent were made by the Court including that all previous Orders were suspended in operation; that the children live with the father; that the children spend time with the mother as supervised by either of the maternal grandparents, or such other person as approved by the ICL and the parties in writing, on each alternate weekend on Saturday and Sunday from 10.00am to 2.00pm commencing 17 June 2023, and from 10.00am to 4.00pm commencing 15 July 2023; each alternate Thursday from conclusion of school until 6.30pm commencing on 22 June 2023; and on special occasion days. There were restraints on the mother from consuming alcohol and/or illicit substances whilst the children were in her care and the mother was not to remove the children from school. In the event the mother was admitted to hospital, she was to notify the ICL forthwith. The mother was to undertake random supervised urinalysis drug screen testing as requested by the ICL; the father was to undertake carbohydrate-deficient transferrin (“CDT”) testing on two occasions as ordered; and the mother was to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. Chain-of-Custody procedure was to be applied to the sample. Otherwise, further and other generic orders were made.
On 23 August 2023, further interim parenting orders were made by consent which included the advancement of the children’s supervised time spent with the mother being no more than six hours on any given day. The supervisors were Mr EE (the father of Mr Z) and/or the maternal grandparents.
On 3 October 2023, further interim parenting orders were made by consent which included a further advancement of the children’s supervised time spent with the mother such that from 18 November 2023, with either of the maternal grandparents being in substantial attendance, that time spent with included a regular overnight period and special occasion days before becoming alternate weekends from the conclusion of school on Friday (or 3.30pm if a non‑school day) to 5.00pm Sunday, commencing on Friday 12 January 2024, with the maternal grandparents to be in substantial attendance from 5.00pm Friday to 10.00am Saturday and 5.00pm Saturday to 10.00am on Sunday; and each alternate week from the conclusion of school (or 3.30pm if a non-school day) on Thursdays until 6.30pm, commencing Thursday 1 February 2024. Otherwise, the mother was to provide the father and the ICL with details of all her treating psychiatrists and psychologists as applicable and provide an update to those details in the event of change. The ICL was authorised to communicate with the health practitioners, specialists, therapist or counsellors who engaged with the mother.
On 4 April 2024, the matter was transferred to the Court.
On 28 October 2024, the matter proceeded for final hearing over a period of five days.
LEGAL PRINCIPLES
The final hearing in this matter commenced after the enactment of the Family Law Amendment Act 2023 (Cth), the Family Law Amendment (Information Sharing) Act 2023 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth). These legislative changes therefore apply to this matter.
Parental responsibility is dealt with in Division 2 of Pt VIII of the Act. Relevantly, ss 61CA and 61D of the Act provide as follows:
Consultation between parents on major long-term issues
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long - term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Parenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long - term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision - making in relation to all or specified major long - term issues.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, I must have regard to the relevant considerations in the Act as set out in ss 60CC(1), 60CC(2) and 60CC(2A) of the Act. Those sections provide relevantly:
How a court determines what is in a child’s best interests
…
(1) ….in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2);
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Family violence is defined in s 4AB(1) of the Act as:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
When considering the risk of family violence, the following is set out in s 60CG of the Act:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In considering these matters, the Court must give consideration as to whether there is an unacceptable risk of family violence and/or an inability to promote the safety of a child and person who has care of a child. Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[4]
[4] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
The Court is required to assess its factual findings on the balance of probabilities, and the impact of those findings upon the assessment of future risk. Accordingly, Isles & Nelissen (2022) 65 Fam LR 288 is applicable. The Court’s determination as to what did or did not happen in the past is determined on the balance of probabilities. However, in hypothesising about future possibilities the Court is required to engage in an assessment of risk as a predictive exercise. That assessment of risk is informed by the factual findings as to the past.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[5]
[5] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
The father
The father gave responsive answers and made appropriate but also at times necessary concessions and admissions against his interests. His evidence was consistent, and I find that he was a truthful witness. He would have liked to think that he and the mother could make joint decisions about major long-term issues in respect of the children, but that desire for mutual co‑operation was realistically checked by the reality of the evidence. It was distressing for the father to acknowledge that it was impossible for the parties to share any parental responsibility for long-term decision-making for the children. He acknowledged that the children’s best interests would be advanced by his having sole responsibility for that long-term decision‑making.
Contrary to the mother’s assertions, I find on an acceptance of the father’s evidence, that the father acted to protect the children and keep them safe. He also encouraged the children’s relationship with the mother and the maternal family which he acknowledged was important to a promotion of the children’s best interests.
The mother
The mother was highly emotional and sometimes teary throughout the giving of her evidence. She presented also as combative at times. I find that the mother provided evidence which was not entirely reliable, and often in line with her own personal narrative which did not accord with reality. She was evasive in respect of her significant mental health difficulties and their adverse impact upon the children, and their adverse impact upon the father in his care of the children.
The paternal grandparents
The paternal grandfather and grandmother were cross-examined in the proceeding. They both presented as frank and credible witnesses, and I accept their evidence. There was no real challenge to it.
The paternal grandfather is a professional, contemplating retirement. The paternal grandmother is employed casually as a shop assistant and intends to resign at the end of this year. Both are in good health. Both have had, and propose to have, a not inconsiderable involvement in the lives of the children.
The paternal grandfather and grandmother have frequently cared for the children, both in Melbourne and in Region B, and more so from the time of the parties separation. The paternal grandparents share a close and loving relationship with the children, having engaged in many activities with them over many years. They have taught the children a range of games to play together; how to be safe in and around the pool; and how to dive. The paternal grandfather has often taken the children shopping with him and to other outings such as outdoor activities.
The paternal grandparents also had a close bond with the children’s half-sibling Ms N, during those times that she stayed with them when the mother and father were still together. They would welcome Ms N into their household again. They have made it clear to the children that they are fond of the children’s half-sister.
The extended paternal family is a close knit and supportive one, and predominantly is or will be based in Region B or close thereto. The paternal grandparents have lived in Region B for an extensive period. The father was raised there. His school friends remain there. The father and the paternal grandparents share a very close relationship, and the paternal grandparents each enjoy frequent phone and messenger calls with the children and their son.
Each of the paternal grandparents have observed the father’s devotion to the children’s wellbeing, education, health and development since March 2023, when the father began parenting the children on a full time basis, whilst also working full time. They observe the father to have struggled with those competing demands of childcare and work, and to have become miserable about his existence and that of the children in Melbourne.
The father has told his mother, variously, that he feels “trapped” living in Melbourne with no family support; that the cost of living is “crippling him financially”; and that he is “frustrated by a lack of time and funds to do anything outside his employment, housework, meal preparation and parenting”.[6] The father has also made numerous comments to the paternal grandfather regarding his circumstances including that “he will never again be happy living in Melbourne”;[7] “he feels worn down given that he has little time to himself or for socialising with other adults”;[8] and he has neither the money nor the opportunity to go out, and only has a couple of friends with no opportunity to meet others.
[6] Affidavit of Ms F filed 7 October 2024, paragraph 23.
[7] Affidavit of Mr E filed 7 October 2024, paragraph 28.
[8] Affidavit of Mr E filed 7 October 2024, paragraph 25.
Since the parties separation, the paternal grandparents have provided some financial assistance to the father who has struggled financially despite his responsible attitude toward making provision for the children, and a strong work ethic. The father receives no child support or Centrelink payments, and the increased mortgage obtained by him to pay out the mother, and increased interest rates, have left the father with a tight budget and no surplus for discretionary spending, such as extra-curricular activities for the children. The paternal grandmother has, amongst other things, sent the father money for sports lessons; school uniforms and shoes; and return flights to Region B for the father and the children. She has further assisted the father by travelling from Queensland to Melbourne to care for the children when the father was absent with interstate work commitments.
It was the paternal grandfather’s view that whilst the paternal grandparents have provided the father with financial support, and emotional support, the father needs a higher level of personal support to assist him in caring for the children being of a type that could not be provided by the grandparents if the father continued to reside in Melbourne.
If the father and children were able to reside in Region B, elements of that personal support which could be provided by the grandparents were rent free housing of the father and the children where the children and the father would have their own bedrooms and bathrooms; availability to provide support to the father during his working days by the provision of housekeeping for the father and the children, the driving of the children to and from school each day, and otherwise the caring for the children during those hours that the father is at work or travelling to and from work; the enabling of the father to sell the former matrimonial home and be relieved of the burden of his current mortgage; and the provision of an opportunity to the father to have some time to socialise with his friends.
I find all the above supports would benefit the children physically, emotionally, developmentally and financially. Such supports would immeasurably help the father in his provision of care for the children.
Mr H, the maternal grandfather
The maternal grandfather was cross-examined in the proceedings by the parties. He was a generally credible witness who has a close and loving relationship with his daughter and the children.
The maternal grandfather extensively supervised the mother’s time with the children, or otherwise was in substantial attendance, in accordance with the changing orders of the Court. Initially, that time was at a park, playgrounds, the maternal grandparents’ home or the mother’s home. The children enjoyed playing outside, having lunch or dinner and doing arts and crafts at the maternal grandparents or the mother’s home. The maternal grandfather deposed that during such visits, the children were happy and excited to spend time with the mother. He observed the mother to be loving and compassionate to the children, and attentive to their needs.
By the time the children commenced spending overnight periods with the mother, the mother’s relationship with the maternal grandmother had again become strained, as it had with her siblings, such that the children and mother could not spend any time at the home of the maternal grandparents. This was a matter not disclosed by the mother or the maternal grandfather to the father until the trial. This break down in the relationship between the mother and maternal grandmother occurred before or during the period when the mother was residing in temporary accommodation on the property at which she lives. On those occasions when the children had an overnight period with the mother, the children slept in the mother’s accommodation. The maternal grandfather slept in his vehicle set up for that purpose, he having a supervision role. The children had access to the bathroom facilities in the house on the property, though it is probable they did not use them. The children complained to their father of being cold and in an environment, they did not like. It was the maternal grandfather’s evidence that the children made no complaint to him, that they had plenty of blankets, and that the children enjoyed that time. He described the children sitting around a fire roasting marshmallows and talking to he and the mother.
The real issue with this time spent was the keeping from the father, by the maternal grandfather and the mother, of the living arrangements of the mother in the winter months of that year. The father was concerned to assure the children’s safety and comfort. The mother and maternal grandfather knew that the father would not approve of the arrangements and either misled him as to where the children were staying or failed to properly inform him as to the arrangements. The father was, at the time, having his solicitor make enquiries of the mother as to the children’s sleeping arrangements. Eventually, the mother moved into the house on the property such that she had more permanent accommodation, and the children commenced sleeping in a bedroom in the house.
The maternal grandfather was supportive of the mother’s former partner and friend, Mr Z. On occasion, Mr Z would join the supervised visits which occurred earlier on, and his children would play with the children together at the playground. The maternal grandfather claimed Mr Z did not drink alcohol or use illicit drugs, though clearly on the evidence Mr Z was using and had used illicit drugs, and was endeavouring to cease doing so. It was the maternal grandfather’s evidence that Mr Z was no longer in contact with the mother and had not been spending time with the children since October 2023. That accorded with the mother’s evidence.
The maternal grandfather’s evidence was that he had witnessed, over a twelve-month period, the mother’s mental health steadily improving as she received mental health care from her providers. It was his view that the mother is more than capable of returning to caring for the children every other week without any supervision or substantial attendance requirement. I do not accept that evidence when looking to the other evidence before the Court, including that given by the mother herself.
The maternal grandfather’s evidence was further, that the mother’s drug usage in 2023 was an isolated incident during a time in which her mental health seriously deteriorated due to the father’s withholding of the children. I do not accept the cause of the mother’s mental health deterioration as being the father withholding the children from her. Rather, the mother’s mental health declined, later accompanied by her minimal drug taking, and the father responded to that decline by acting to keep the children safe.
Ms C, Family Consultant
Ms C, the Family Consultant prepared a Family Report dated 2 April 2024. Ms C was cross‑examined by the parties. I accept her expert evidence. This evidence was of great assistance in determining the orders which should be made and supported my finding, as did other parts of the evidence, as to the father being a truthful witness.
At the time of the Family Report, the interim orders made 3 October 2023 were in effect.
Ms C reported the father maintained a strong focus on the children’s needs and there was no noted underlying anger toward and/or blame targeting the mother. There was no clinical concern arising from the interview with the father.
The father reported to be in good physical health, save for the stressors of litigation, parenting without significant family support and financial pressures. With the support of his general practitioner, the father had ceased treatment for a diagnosis of depression in 2023.
The father conceded to Ms C that the children needed both parents, however the co-parenting relationship was conflicted, and this undermined his and the mother’s ability to settle into a healthy rhythm around the children’s needs.
The father viewed himself as a capable parent and believed at times the mother was too. The father reported to Ms C periods of stability with adequate lines of open communication, however, followed by periods of instability which was marked by irritability on the part of the mother. At times, the mother “would get feisty over small things” and the children would return with dirty clothes,[9] having not done any homework and were unsettled and disruptive at school. When the father would try to address his concerns with the mother, she would threaten to restrain his time with the children. The mother would bypass the co-parenting application for communication and become secretive and uncooperative around everyday parenting matters.
[9] Affidavit of Ms C filed 3 April 2024, p.15.
The father told Ms C his decision to seek changed parenting orders was informed by the school’s response to his concern, and a growing realisation that he needed to protect the children from their mother. The subpoenaed material from the mother’s health providers produced a more fulsome image of the mother’s mental health issues. The father reported being alarmed at the mother’s claim to be well placed to resume an equal time arrangement. He stated, “There were so many lies, she was using drugs, she was going to kill herself, and even now I’m not sure she’s living where she says she is living”.[10]
[10] Affidavit of Ms C filed 3 April 2024, p.16.
The father stressed the importance of the children continuing to see their mother, however remained concerned about the seriousness of the mother’s mental health issues, the confusion her behaviour had created for the children, and the uncertainty surrounding her future stability. The father stated a loss of trust in the parties’ co-parenting relationship was a key factor in his decision not to support a return to an equal time arrangement. Irrespective of where the children lived, he sought to continue in the primary caregiving role. He viewed himself as the more stable parent, and more capable of supporting the children’s developmental and wellbeing needs.
The father alleged the mother’s ambiguous health issues and poor communication led to him forming a view she was not sufficiently stable to provide care to the children. That view was reinforced by the subpoenaed material from her health providers.
Ms C noted that the father was criticised by authorities for schooling the children at home for a period. Ms C formed the view that whilst his actions could be viewed as coercive and controlling, the alternate view, that he was acting to protect the children, was preferred.
The father was assessed as having a depth of knowledge about the children’s needs and preferences. The father was assessed as psychologically stable and having no pre-disposing mental health difficulties. Ms C stated the father’s parenting style was well suited to the children’s ages.
The father was assessed as displaying good judgment around the children’s safety needs and as facilitating the relationship between the boys and their mother despite his considerable concern. Ms C stated the father was well placed to continue in the primary caregiving role. In a comparative assessment of the children’s needs, the father’s parenting abilities, values and attitudes were a better fit.
The mother
The mother proposed an equal shared parental responsibility arrangement, and for the children to live with her and spend time with the father when she saw Ms C in February 2024.
The mother reported to Ms C a pattern of alleged coercive and controlling behaviours by the father that led to a decline in her mental health. She reported the father was controlling during their relationship, and that he “installed cameras at their home and while at work would send her text messages with screenshots from those cameras”.[11] She claimed the father’s monitoring behaviour made her feel controlled. Further, that the father drank excessively and verbally abused her daughter Ms N. The mother stated the father had “dramatized” some events in the subpoenaed material which led to her having to undergo supervised urine screens unnecessarily.[12]
[11] Affidavit of Ms C filed 3 April 2024, p.18.
[12] Affidavit of Ms C filed 3 April 2024, p.18.
The mother stressed the importance of the children “having both parents involved in their lives”.[13] The mother reported the father continued to act in a demanding and demeaning manner about parenting matters, but on other occasions would engage in dialogue that was conducive to the sharing of the children. It was her observation the children appeared to manage the equal time arrangement without difficulty.
[13] Affidavit of Ms C filed 3 April 2024, p.19.
The mother sought out the father’s care for the children whilst she was hospitalised and stressed the children were not at any risk in her care. The mother was tearful when recounting the father “kept the boys from me for months and then started demanding medical records”.[14] The mother stated she was reluctant to share details of her illness and felt violated by the subpoenaing of her medical records. She felt she now “needs to prove that [she is] not a risk to the children”.[15]
[14] Affidavit of Ms C filed 3 April 2024, p.19.
[15] Affidavit of Ms C filed 3 April 2024, p.19.
The mother stated, “[Dr D] said no current risk and I know everyone needs to be careful, so I’m not saying nothing will ever happen”.[16] The mother acknowledged the importance of her continued treatment and indicated that although her program of Dialectical Behaviour Therapy would be completed in June 2024, she intended to stay engaged with her treating therapist.
[16] Affidavit of Ms C filed 3 April 2024, p.20.
The mother was assessed as having a good knowledge of the children’s preferences and needs. The mother was observed to display reasonable attunement, warmth and responsiveness when in the children’s company. Ms C considered the mother was an experienced caregiver who appeared comfortable in her parenting role. She had put effort and energy into returning to stable health, was compliant with treatment and realistic about progressing toward her treatment goals.
The mother showed insight into the triggers for her psychological distress, however Ms C was left with some concern that the father was identified by the mother as the primary source of her distress.
The children
The children displayed good levels of engagement. Separations and reunions between parents and children were without anxiety, spontaneous and affection.
Y presented to Ms C as relaxed, with age-appropriate levels of attention and concentration and clear speech. Y impressed as a socially skilled, confident child and engaged well.
When asked to draw a picture of his family, Y included himself, X and his father. Y couldn’t say why he didn’t include his mother but replied “she doesn’t live with us”.[17] Y could not recall why his parents separated, aside from stating “because they didn’t want to live together”. He stated he could not recall his feelings at the time of separation but remembered “Mum said Dad said she spent too much money on [a hobby]”.[18]
[17] Affidavit of Ms C filed 3 April 2024, p.22.
[18] Affidavit of Ms C filed 3 April 2024, p.22.
Y reported his family experience reflected feelings of safety and security. He felt loved by his family and his list of family members included his mother and grandparents. Y stated he loved visiting Queensland.
When asked about his parenting arrangements Y understood that his father “gets us most of the time” and that his mother wanted to “see us equal time”.[19] Y thought this would be “fair”.[20]
[19] Affidavit of Ms C filed 3 April 2024, p.22.
[20] Affidavit of Ms C filed 3 April 2024, p.22.
Y was observed to share a close bond with his father and displayed some distance from his mother during observation. His exclusion of his mother from his family picture, despite describing feeling loved by both parents, suggested to Ms C a preference for his father’s care rather than an equal time arrangement. Ms C considered that the events of the preceding 12 months may have undermined the security of Y’s relationship with his mother.
X presented to Ms C as cooperative, with clear speech and providing expansive responses to questions posed. In describing himself, X provided information that suggested he had a positive self-image and that his preferences, likes and dislikes appeared appropriate for his age.
X impressed to Ms C as relatively well adjusted to the parental separation and understood that his parents “fought a lot” and decided to live apart.[21] X described living equally across his two homes. When asked how he came to live with his father, X remarked “we were seeing Mum and then we didn’t go to school then Dad started having us a lot more”.[22] When asked if he could recall any other details of this time, X thought he saw his father more because his mother was “sad”.[23]
[21] Affidavit of Ms C filed 3 April 2024, p.23.
[22] Affidavit of Ms C filed 3 April 2024, p.23.
[23] Affidavit of Ms C filed 3 April 2024, p.23.
X stated he missed seeing his mother but felt happier when spending more time with her. He reported on the experience of being parented in nurturing terms. X said of all the parenting arrangements, the one he was then in “felt the best”.[24] He believed that his parents loved him, and he felt similarly.
[24] Affidavit of Ms C filed 3 April 2024, p.23.
When asked if he wanted to change anything about his living arrangements, X said he was worried that he would have to choose between his parents. He felt loyal to both, and did not want to make any remarks that might “hurt them”.[25]
[25] Affidavit of Ms C filed 3 April 2024, p.23.
X was excited by the prospect of potentially moving to Region B to live with his grandparents, but was worried he wouldn’t see his mother as much if she remained in Melbourne. Cohan understood his parents were trying to “work it out”, his remarks indicated to Ms C he had been exposed to the parental conflict. He said he was not confident they could work it out without arguing. X wanted his parents to “like each other” and believed that if they did, he would “feel better”.[26]
[26] Affidavit of Ms C filed 3 April 2024, p.23.
X was observed to share a close and loving bond with each parent. At interview, X sought to provide a balanced account of his parenting experience.
X impressed as meeting most of his developmental milestones, although Ms C considered his school environment might not be a positive one. She considered X’s reference to bullying might have had its origins in X’s awareness that he was absent from school because his mother “was on drugs”.[27]
[27] Affidavit of Ms C filed 3 April 2024, p.25.
Evaluation
Ms C opined that if the relocation of the children was permitted, the outcome would more than likely impact on the quality and strength of the children’s relationship with their mother and that of their older sister Ms N. The children would not have the benefit of spending frequent time with the mother, nor would there be opportunities for her to actively parent across a range of domains to support the children’s developmental and wellbeing needs. Ms C opined that regular audiovisual communication between the children and their mother would assist in reducing the emotional impact of the loss on both the father and the children.
If the relocation was permitted, Ms C recommended several things to be implemented to ameliorate adjustment issues for the children and particularly, the relocating of the children to the home of the paternal grandparents. She considered that home a familiar site for the children. She considered the quality of care of the children might well increase with the presence of the paternal grandparents, and the children’s access to those positive and supportive, established relationships.
Ms C assessed that developmentally both children were of an age where their immediate care needs were not entirely dependent on proximity to their caregiver. The children’s psychological progression toward independence in middle childhood was such that they could hold the parental relationship ‘in mind’. However, in her expert opinion, there needed to be effort and importance placed on frequent interaction between the boys and their mother. She was confident that the father would promote and encourage the children’s relationship with the mother, the father understanding the importance of the mother in the lives of the children.
Ms C noted that limiting the children’s access to the mother appeared to be a known trigger for her declining mental health, and that consequently, the mother’s ability to support the transition might be informed by this factor. Ms C noted as to the earlier limiting of the children’s time with their mother by the father, that it did not appear to be a misuse of his parental authority and control, but rather a protective action in the context of his mounting fears about the children’s safety in their mother’s care, and in the absence of any reassuring information to suggest otherwise.
Ms C assessed the quality of the co-parenting relationship as poor, marked by mistrust and limited communication. Despite this, in her report, Ms C recommended the parties share parental responsibility. At trial, in the giving of her evidence, Ms C conceded that an order for joint or shared parental responsibility would be problematic in its operation given the parental discord.
Otherwise, Ms C recommended that the children live with the father; the mother provide the father an update from her mental health clinician every six months; if relocation was permitted the relocation occur after the conclusion of the 2024 school year; and otherwise, a regime of time spent with, in the instances of relocation occurring and not occurring.
Dr D, Consultant Psychiatrist
Dr D, a forensic and adult psychiatrist, was requested to psychiatrically assess the mother. The mother was interviewed by him on 3 August 2023. He subsequently prepared a report dated 22 August 2023. Dr D was cross-examined by the parties. Dr D’s expert evidence is accepted by the Court.
The mother reported a history of an eating disorder from 16 years of age. Dr D noted that the mother’s medical records indicated she had been previously diagnosed with multiple mental health disorders, confirming a longstanding history of anxiety, with panic attacks, fluctuating mood, impulsivity, self-harm ideation and attempts, anger and disassociation. The mother expressed to Dr D that she was high functioning but exhibited these traits at times of crisis. The mother agreed with her diagnosis of complex post-traumatic stress disorder and was accepting of ongoing psychotherapy, medication and support from the community mental health clinic, including psychiatric support.
The mother reported a recreational use of alcohol and two accounts of a use of an illicit drug. Dr D noted such history as provided was insufficient to diagnose a drug use disorder.
It was the diagnosis of Dr D that the mother’s presentation was consistent with a mental health disorder, features of mood instability, relationship instability, impulsivity, self-harm, anger and dissociation. The alternative diagnosis of complex post-traumatic disorder, Dr D noted as not a recognised diagnosis in the Diagnostic and Statistical Manual Volume 5 (DSM-V). Dr D preferred the personality disorder diagnosis. The personality disorder of the mother was associated with instability, particularly under stress, with a vulnerability to being in crisis and having suicidal and self-harm episodes. In his opinion, the mother’s significant co-morbid anxiety with some features of panic was consistent with a generalised anxiety disorder.
Dr D noted that at the time of his assessment of the mother, the mother had continued to follow up at the CC Clinic, her medication was unchanged, and she had engaged in weekly individual dialectical behaviour therapy. She remained happy with the support that she had at the time.
Dr D assessed the mother’s mental state, in terms of her personality and anxiety disorders, was particularly unstable from October 2022 until April 2023, associated with significant suicidality, mood instability, and necessitating multiple hospital admissions and medications. It was his evidence that “there is no doubt over that period that her unstable mental state would have compromised her ability to parent the children. She was struggling to cope and did not see hope for the future”.[28]
[28] Affidavit of Dr D filed 22 October 2024, p.21.
Dr D reported the mother’s mental state had, over the preceding three months, been more stable. The mother’s anxiety appeared under control, the mother’s borderline personality features did not appear prominent, and her previous state of crisis had resolved.
Dr D stated the mother was undertaking “the gold standard psychotherapy” for her mental health disorder and had significant mental health supports in place.[29] He opined that there was then, no mental health ground on which to restrict the mother’s access to her children. He noted such restriction was a strong driver of her distress and suicidality, and therefore increased contact with the children would be linked to an improved mental state.
[29] Affidavit of Dr D filed 22 October 2024, p.21.
Dr D also noted that the mother’s disorders were prone to relapsing, and instability could occur under significant stress. It was his opinion that there should be clear parameters in place for the mother’s treating clinicians to identify if her mental status was compromising her ability to care for the children, and a plan for care arrangements to be varied if needed.
CONSIDERATION
Family violence
The mother alleged family violence as perpetrated upon her by the father during the parties’ relationship, and further alleged that the father abused alcohol. There was no probative evidence to support these allegations which were denied by the father who experienced the mother as unpredictable and moody, and herself a perpetrator of family violence. At the time of separation, the mother obtained an IVO against the father for the protection of her and the children of 12 months duration. It was consented to by the father without admissions. Shortly thereafter, the children commenced to spend equal time in the care of each parent.
The mother alleged that post separation the father continued to coerce and control her through his retaining of the children in the circumstances, on the evidence, of the mother’s significantly declining mental health and inability to look after the children. This was not factually coercion and control. This was the father acting to promote the safety of the children. The mother also claimed that she had been a victim of financial control, physical violence, psychological and emotional control, and stalking and surveillance from the father. The father denied these allegations. The evidence before the Court did not support that which the mother asserted. To the contrary. The father is fairly conflict adverse. He suffered from some reactive depression consequent upon the mother’s aggressive and erratic behaviours toward him and the children, having no explanation or information from the mother as to the cause of her behaviours, and in the aftermath of the separation. I find the mother’s asserted, but not actual, experience of family violence to reflect her mental health difficulties at varying times.
The mother’s mental health
The bringing of further parenting order proceedings by the father was largely attributed to the mother’s evasiveness as to her mental health functioning, and its adverse impact upon the father and the children. She failed to disclose to the father the cause of her repeated hospitalisations, and her diagnoses. Assuring the safety of the children and the father was central to this proceeding. The father, for a significant period, remained largely unaware of the mother’s mental health issues though he was aware of her dysfunctional behaviours, having experienced them. He was only informed of the mother’s serious mental health issues through the process of his solicitors obtaining information pursuant to subpoenaed material as provided by those health care providers with whom the mother had interacted.
The father discovered periods in mid and late 2022, when the children were supposedly in the mother’s care, in which the mother was in fact hospitalised and had arranged for other caregivers for the children. The mother’s non-disclosed inability to care for the children because of her poor mental health resulted in the children being frequently absent from school. In particular in mid-2022, late 2022 and early 2023. During the 2022 school year, the children missed over 170 hours of schooling (equivalent to 40 school days) when in the mother’s care, either by days at a time, or frequent late arrivals and early departures. Upon discovering this in late May 2023, the father approached the school principal to put in place an attendance implementation plan under the school’s student wellbeing and engagement policy. He was desperate for the children’s school attendance to be regularised, and deeply concerned as to the interruption to their educational advancement as experienced by the children in the mother’s care.
The mother, at the time of trial, attended upon:
·Her general practitioner Dr FF of GG Medical Centre in Suburb HH who she sees fortnightly for ongoing support.
·Her mental health clinician Mr JJ for ongoing monitoring and management of her treatment plan.
·Community case management offered by BB Mental Health Service.
·Regular psychiatric review at S Hospital in Suburb AA; and
·Weekly individual and group Dialectic Behaviour Therapy to provide distress tolerance techniques and skills to manage and regular her emotions.
While the mother’s regular attendances upon medical and associated mental health care providers is of great assistance to her, and indirectly to the children and father, and is certainly to be encouraged, it does not lead the Court to consider in the totality of the evidence that the mother would be able to care for the children each alternate week and adequately meet their needs as asserted by her.
The mother remains resentful of the father and evasive in her communications with him. It is clear the co-parenting relationship between the parties is fractured. The mother’s mental health difficulties and perceptions of the father, unwarranted, make it not possible for the parties to effectively communicate about matters significant to the advancement of the children’s best interests.
The mother’s mental health functioning is a complex issue which she is endeavouring to address. Her treatment requires expert specialist clinicians. The mother appeared emotional and teary throughout the proceeding and struggled to answer basic questions asked of her by counsel for the father and counsel for the ICL. The mother’s relapse into highly problematic behaviours because of the outcome of this proceeding and her various diagnoses is possible, and so it will become even more necessary for the mother to attend regularly upon her mental health practitioners and to remain on her prescribed medication. She will be able to continue to spend time with the children either in Queensland or Victoria. The benefit to the children of continuing that relationship with their mother is acknowledged and encouraged by the father.
Capacity of the parents and the children’s views
The children and the father, and the children and the mother, share a close and loving relationship. The father has encouraged and supported the children’s relationship with the mother and otherwise with their maternal grandparents and relatives. The mother also acknowledges the benefit to the children in their relationship with the father, but she is more critical of the father and less inclined to promote the relationship. Her criticism is unfair.
While the father understands the importance of the mother in the children’s lives to meet their psychological and emotional needs, he does so in the context of the prioritising need for the children to be safe in their mother’s care. He has acted to ameliorate the risks her mental health issues have presented to him and the children. That amelioration has been by taking the children into his primary care and having their time with the mother supervised and limited, especially in the circumstances of the mother being not forthcoming as to her serious decline in mental health functioning as described above during 2022 and 2023.
The father has competence and considerable capacity to provide for the children’s developmental, psychological, emotional and cultural needs. His capacity to so provide, exceeds that of the mother. The father’s evidence was that he often cooked with the children; prepared dinners together with the children; went on small excursions with them during the weekends which included visiting parks, cinemas and shopping; and visited a paternal uncle of the children and his family. The children enjoyed all these activities with the father and those other activities with his extended family, a family that will be returning to Region B to reside in early 2025. The father further attended to the children’s need to be present at school (save when he was acting protectively) and to advance in their academic learning. He is a parent the children have been able to rely upon and they look to him to satisfy all their needs, including financial needs. He has good insight into the children’s psychological needs. The children also enjoy the activities they engage in with the mother and enjoy their psychological and emotional attachment to her for so long as she is not unwell.
The children’s views are that they wish to spend time with each of their parents and otherwise are as expressed to Ms C as described in her evidence above. The elder child’s views I give some weight to. Both children do not however express a view that is determinative, and nor are they of an age or maturity where those wishes would prevail. The father has been careful not to influence the children’s expression of their views. The children’s views also include an acknowledgement that they very much enjoy their time in Region B with the father and paternal grandparents. The prospect of them going to live in Region B was first raised with them by the mother, not the father.
The father’s financial circumstances impact upon his ability to provide for the children in the way in which he would wish.[30] Those circumstances included a significant loan from the paternal grandparents to meet his legal costs. It was his evidence that if he and the children were not able to move to Region B, then he would sell the former matrimonial home which he could no longer afford and obtain rental accommodation in an area he could afford. In that way, he could also repay the paternal grandparents. That may well, and likely would, result in a change of school for the children.
[30] Father’s affidavit filed 7 October 2024, paragraph 132.
It is probable the mother will make no payments of child support in the years ahead given her poor financial circumstances. The father is aware of his responsibilities to support the children by application of his sole income in the many years ahead. To that end, he has approached his employer of 13 years, L Company, and raised the prospect of his relocation to Region B. He has been given written approval to retain his current position of employment and be nominally based at L Company’s Queensland office, working both full time at the office and from home.
It is clear on the evidence that the father’s financial difficulties, and his onerous work and child care responsibilities, would be significantly alleviated through the father and children’s relocation to Queensland, wherein the father can receive assistance from the paternal grandparents in the provision of rent free accommodation for a significant period, and in the grandparents caring for the children, including the taking of them to extracurricular activities, whilst he works on a full time basis.
The mother’s residence
For periods of time during the post separation period, including a period until just prior to the commencement of the final hearing, the mother refused to disclose her residential circumstances to the father. She considered his enquiries to be “further attempts by the father to control her and keep her under surveillance”.[31] To the contrary, the father was concerned to ensure that the children were appropriately accommodated, and to know where they were housed. The mother has moved residences since the separation of the parties. Some of that accommodation has not been suitable to house the children in a week about arrangement.
[31] Father’s affidavit filed 7 October 2024, paragraph 71.
Relevant to this proceeding is the mother’s current accommodation. In early 2023, the mother moved onto a property in Town KK, where she currently resides. The mother and her friend entered into an agreement where the mother would reside on the property, initially in temporary accommodation, and in lieu of rent the mother would provide weekly property management services to help maintain the property. The situation remains that the mother is at the property for an indeterminate time. There is no lease in place. The property is large and is reasonably proximate to the children’s current primary school. On the property there are several animals. The children can engage in several activities on the property, including walking or riding their bikes on a designated track. They do so and have enjoyed it.
The home on the property has four bedrooms, two of which are occupied by two friends of the mother. The mother now occupies a third bedroom, having moved into the house from her temporary accommodation on the property. A fourth bedroom was occupied by the child Ms N, until she departed the property after some conflict with the mother. That bedroom is now occupied by a further adult.
The father expressed concern at the mother’s lack of disclosure as to her accommodation being ongoing the temporary accommodation throughout some months in 2024, including winter months. After the weekend commencing 12 July 2024, the children returned to the father’s care cold and visibly shaking. The children informed the father they stayed in the temporary accommodation and had to use torches to urinate outside at night. They returned to the father’s care with muddied shoes and wet school clothes. The father expressed his dissatisfaction with the accommodation of the children and was advised by the mother’s solicitors that that the mother “will ensure the children and herself sleep in her parent’s house”.[32] I accept that assurance was not acted upon until the 25 August 2024, and thereafter on the 19 September 2024, when on these two occasions only, the children did stay at the maternal grandparents’ home when the maternal grandmother was absent.
[32] Father’s affidavit filed 7 October 2024, paragraph 77.
The mother’s accommodation difficulties were increased in 2024, by her inability to use her parents’ home for overnight time spent with the children in circumstances where it was required to be substantially in attendance supervision by her father (her mother by then had refused to participate). That inability had arisen by the complete breakdown of the relationship between the mother and maternal grandmother as referred to above.
I find that the mother has presently established a more permanent residence in her current shared home arrangement. I am satisfied that arrangement will alleviate any need for the children to reside in the temporary accommodation in the future, save when they are doing so as part of a travel or holiday activity with the mother. There remains some uncertainty as to the mother’s accommodation in the future which can be addressed by orders providing for the mother to have suitable accommodation for the children when they are in her care, meaning a residential property in which the children have their own bedroom/s and access within the same dwelling to amenities such as a bathroom and toilet.
Other relevant matters
The father sought a relocation of the children’s residence to Region B. He and the children will be able to live in the home of the paternal grandparents indefinitely. The accommodation of the paternal grandparents is near that of the father’s other family members, including the children’s paternal uncle (soon to be two uncles) and his family and the children’s paternal aunt and her husband. The support the paternal grandparents can provide to the father and children is as set out in their evidence. That support is extensive and highly beneficial to the welfare of the children and to that of the father.
The father himself acknowledged the proposed relocation as one that would increase his access to much needed family support in his role of primary carer to the children. Additionally, the father has several long term supportive friendships available to him in Region B. He is confident they would also assist him in the care of the children, but in the main they will provide emotional and social support to the father, and an opportunity for the father and children to have a ready friendship group with these friends and their children.
The father has provisionally enrolled the children in LL School for the 2025 school year. The paternal grandparent’s home is within the catchment of LL School. The school ranks within the top primary schools in Queensland. Neither party sought a placement for the children in a private school, and both accepted that the children would attend a public school in the catchment area of the suburb in which they lived.
The mother opposed the children’s relocation to Queensland. The mother claimed the children were well established in Melbourne, with the familiarity of their school, friends and hobbies. She expressed concern that an interstate move would be disruptive to the children’s lives and cause significant detriment to their emotional and psychological wellbeing. They would spend less time with their mother and the maternal family. The reality is however, that the children will be moving residences and probably schools should they remain in Melbourne. They will not have the benefit of hobbies or extracurricular activities in the father’s care because of his financial and availability constraints. The children’s primary carer will continue to struggle being isolated in Melbourne. The children do depend on each of their parents for their emotional and psychological needs, but more so on the father. They are of an age where they can spend longer periods of time away from their mother without an adverse effect on their psychological and emotional development as opined by the expert Ms C.
I accept the father is genuine in his belief that the arrangement proposed by him will promote the safety of him and the children as I find his proposed orders will. Alongside that, in looking to the best interests of the children as the paramount consideration, I find that such best interests are advanced by the children being permitted to reside with the father in Queensland in Region B as sought by the father and by the ICL. I accept the father is committed to encouraging and supporting the children’s ongoing relationship with the mother with any degree of flexibility because he is committed to promoting the best interests of the children.
I also rely on the evidence of the expert Ms C as referred to above as to the children’s relationship and dependency upon each of their parents, and her recommendation that the children live with the father in my consideration of the children’s move to Region B and conclusion that it was in their best interests.
Conclusion
The father and the ICL sought orders including that the father have sole responsibility for long term decision making in respect of the children; that the children live with him and that he be permitted to relocate the residence of the children from Victoria to Queensland and more specifically Region B. Further, that the children spend time and frequently communicate with the mother, with those spend time periods being both during school terms and holidays, and during some special occasion times, and have as a condition for a limited time, the substantial attendance of one of the mother’s relatives. The evidence supports the making of those orders as being in the children’s best interests.
The father and the ICL also sought some generic orders as they appear in the orders the Court shall make and as also supported by the evidence.
The father sought an order that the children do not live with nor have contact with Mr Z. That order was opposed by the mother and the ICL. The evidence did not support the making of that restraint. Whilst Mr Z may have a history of taking drugs which he was endeavouring to cease, or possibly given drugs to the mother on one occasion, his contact with the mother had ceased approximately a year before the trial. There was also evidence that he had a good relationship with the children, had promoted their welfare in his limited involvement with them, and that his father was a suitable supervisor of the children. Ultimately, the evidence simply did not extend to enable the Court to make such an order.
The father and the ICL sought orders for the mother to engage with a psychologist for a period of up to two years with reporting orders to the father. The orders proposed by the father were more prescriptive than the ICL orders and had a consequence of reversion back to the children’s time spent with the mother being in the substantial attendance of a third party. I have adjusted the orders sought by the father in a minor way to hopefully avoid further litigation. At core, the intent of the orders of the ICL as proposed and the father as proposed was the same or marginally different. The proposed orders were based on the recommendations of Ms C. The father has the lived experience of two proceedings and the stress and costs that entails. He has also and more importantly had to cope with the consequences of the mother’s illness, in relation to which he is empathetic, but wary about history repeating itself in the mother’s failure to keep him informed to best protect the children. His orders in this regard were supported by the evidence and mostly made.
The mother will find it difficult to accept the relocation of the children and will need to obtain additional mental health services assistance in all probability. It is unlikely she will move to Region B although there is provision in the orders for increased time spent with the children should she do so. Because it shall be a difficult period for her, the requirement of a third party being in substantial attendance or supervising as prescribed in the orders is necessary on the totality of the evidence, in particular on the evidence of Dr D. That need shall operate for a limited time only.
I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 17 December 2024
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