Hinrichs & Hinrichs

Case [2024] FedCFamC1F 870

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…

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AGLC
Hinrichs & Hinrichs [2024] FedCFamC1F 870
Case
[2024] FedCFamC1F 870
Decision Date

CaseChat Overview and Summary

In the case of Hinrichs & Hinrichs, the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining various parenting orders concerning the children, X and Y. The primary issues before the court were the allocation of decision-making responsibility between the father and the mother, the relocation of the children to Region B in Queensland, and the frequency and conditions under which the children would spend time with their mother, who has significant mental health issues. The father sought sole decision-making responsibility, the relocation of the children, and specific arrangements for the children's contact with their mother, while the mother opposed these proposals and sought joint decision-making responsibility.

The court found that the father's evidence was consistent and truthful, and he acted to protect the children and maintain their relationship with their mother. Conversely, the mother's evidence was deemed less reliable, often aligning with her personal narrative rather than the factual circumstances. The court concluded that it was in the children's best interests for the father to have sole responsibility for long-term decision-making, for the children to live with him, and for the relocation to proceed. Specific arrangements were made for the children to spend time and communicate with their mother under certain conditions, including the presence of a third party during initial periods post-relocation to ensure the children's safety.

The court also addressed the mother's mental health, which had a significant impact on the proceedings. The mother's failure to disclose her mental health issues and hospitalizations to the father and the court was noted. The orders included mandatory ongoing mental health treatment for the mother, with reporting obligations to the father, and conditions for supervised contact between the mother and the children if the mother fails to comply with these treatment obligations or is hospitalized for mental health reasons. The court emphasized the importance of clear communication between the parents and outlined specific communication and safety protocols to protect the children's welfare.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONFamily 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.