Holmes & Parker

[2022] FedCFamC1F 886

Federal Circuit and Family Court of Australia (DIVISION 1)

first instance

Holmes & Parker [2022] FedCFamC1F 886

File number(s):	BRC 1546 of 2019
Judgment of:	CAREW J
Date of judgment:	10 November 2022
Catchwords:	FAMILY LAW – PARENTING – Best interests of the child – where mother has long history of severe mental illness but is currently well – where the child has significant medical conditions – where the father has very limited knowledge of the child’s needs – where on day four of a five day trial the parties seek that the Court make an order by consent and the proposed order is supported by the independent children’s lawyer – order made by consent
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	25
Date of hearing:	7 – 10 November 2022
Place:	Brisbane
Counsel for the Applicant:	Mr A George
Solicitor for the Applicant:	RA Solicitors
Counsel for the Respondent:	Mr J Linklater-Steele
Solicitor for the Respondent:	Mills Oakley
Counsel for the Independent Children’s Lawyer:	Ms K Oakley
Solicitor for the Independent Children’s Lawyer	Life Law Solutions

ORDERS

BRC 1546 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HOLMES Applicant
AND:	MS PARKER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	10 NOVEMBER 2022

THE COURT ORDERS BY CONSENT:

1.That all previous orders are discharged.

Parental responsibility

2.That the Mother have sole parental responsibility for the child X born 2018 (the child).

3.In exercising her sole parental responsibility, the Mother shall, prior to making a decision about any major long-term issue:

(a)inform the Father by email of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

(b)allow the Father fourteen (14) days after the provision by him of the information referred to above to respond to the same by email; and

(c)consider the Father’s response, if any, when coming to her decision about any such issue;

(d)inform the Father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter; and

(e)Inform the Father and provide the details for any new school where the child is to be enrolled 28 days before she makes any changes to the child’s school enrolment and provide written notice when this has occurred.

Living arrangements

4.That the child live with the Mother.

5.That from the date of these orders until the commencement of term 2, 2023, the child spend time with the Father at all times as may be agreed between the parties in writing but failing agreement, as follows:

(a)For up to two (2) hours each alternate Saturday, such time to be supervised by B Counselling, with the costs of supervision to be shared equally between the parties; and

(b)For additional two (2) hour visits at B Counselling (as can be accommodated by B Counselling) for the child’s birthday, Father’s Day, the Father’s Birthday and Christmas.

6.Thereafter, the child spend time with the Father at all times as may be agreed between the parties in writing but failing agreement, as follows:

(a)For up to two (2) hours each alternate Saturday, such time to be supervised by C Counselling at Suburb D, with the costs of supervision to be shared equally between the parties (subject to the provisions of paragraph 7 (b) of these Orders; and

(b)For additional two (2) hour visits at C Counselling (as can be accommodated by them) for the child’s birthday, Father’s Day, the Father’s Birthday and Christmas.

7.That the supervised time being spent between the child and the Father in accordance with paragraph 6 of these orders may occur outside of the precincts of C Counselling:

(a)at the sole discretion of the supervisor;

(b)with the father to be solely responsible for any additional costs of those visits; and

(c)With the child to travel only by motor vehicle (if necessary) with the supervisor.

8.That the Father’s child E is permitted to be present for all visits between the Father and the child.

9.That the Paternal Grandmother and/or Aunt be at liberty to attend such visits from time to time.

10.That the Father is permitted to take photographs of X at visits.

Exchange of information

11.That by these Orders, the Mother and Father are authorised to provide a copy of these Orders to the child’s school and medical and health providers.

12.The parties shall keep each other informed at all times as to their contact email address.

Schooling

13.Both parents be at liberty to contact the carers, directors, teachers, principal(s) and administrative staff of the schools attended by the child from time to time, in order to obtain any information or documentation in relation to the child.

14.The child's school(s) and other care providers are authorised to provide to each of the parties in writing all information and documents about the child's welfare, progress and activities, including but not limited to the child's reports, newsletters, notes/letters to parents, details of the child's parent/teacher interviews, copies of order forms for the child's school photographs and certificates and awards obtained by the child (at each parent's own cost).

15.Each party will do all acts and things as are necessary to enable the other to communicate freely with any teacher or school official involved with the child and his education and to have access to any and all information pertaining to the child.

Health

16.In the event that the child suffers any significant injury or illness, the Mother shall inform the Father without delay of the nature of the injury or illness and the name and address of any health professional to whom the child has been referred.

17.The Mother keep the father informed as to the names and addresses of any treating medical practitioners or healthcare providers who come into contact with the child.

18.These orders authorise any medical practitioner, psychologist, counsellor, dentist or any other health care professional who treats the child to provide all information in regard to the child’s health reasonably requested by the Father to him at his sole cost.

Restraints

19.Pursuant to s 68B of the Family Law Act 1975 (Cth), an injunction issue restraining both the Mother and the Father from: 

(a)Consuming medication not prescribed for them or in the dosage and/or for the condition prescribed;

(b)Consuming alcohol (in the case of the Father) for the 24 hours prior to spending time with the child, or while he is spending time with the child;

(c)Denigrating, or causing the denigration of the other parent to, or in the presence of the child or permitting any third party to do so;  

(d)Involving the child in any discussion about these proceedings or showing the child any documents relating to the proceedings, including but not limited to the allegations made by either party or any aspect of it, including the orders sought by either party; and

(e)Having any discussion concerning these proceedings, including any of the allegations made by either party, or any aspect of it including the orders sought by either party in the presence of the child and shall take all reasonable steps to prevent or remove the child from any such discussion if instituted by any third party. 

Procedural matters

20.That all previous interim parenting orders shall be discharged.

21.That all outstanding applications and responses shall be dismissed.

22.That each party shall pay their own costs of and incidental to these proceedings.

Miscellaneous

23.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION

The parties agree that the Mother may request the child’s school to redact her residential address from any material provide by the school to the father.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holmes & Parker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. After four days of what was to be a five day or longer trial, the parties have submitted a final parenting order that they ask the Court to make by consent, and the independent children’s lawyer (“ICL”) supports that order. 

2. The proposed order provides for X, aged 4, to continue to live with his mother and spend long-term supervised time with his father.

3. During cross-examination by counsel for the ICL, the father made the following significant concessions: 

   (1)he has a long history of forming dysfunctional relationships and has failed to address, with professional assistance, the reasons for him repeatedly choosing partners with significant mental illness, drug addiction, or significant personality vulnerabilities;

   (2)he has at least a recent history, throughout 2022, of excessive alcohol consumption, in the context of allegations made by the mother of a much longer history of alcohol abuse and despite the scrutiny of these Court proceedings;

   (3)he has failed to address his history of alcohol abuse with any of the counsellors he says he has seen on and off for a number of years;

   (4)he has very limited knowledge of X’s special needs and significant medical issues, even conceding that some of X’s treating practitioners would know X better than he does;

   (5)realistically, he is unable to provide for X’s needs in a practical sense, given his need to work full time and limited knowledge of what X’s needs are;

   (6)his application for X to live with him is, in fact, premature;

   (7)what he was really seeking was a means by which he might move to spending unsupervised time with X; and

   (8)the state of evidence to persuade the Court about how that could occur, for example, that he has satisfactorily addressed his personal vulnerabilities, was unsatisfactory.

4. By way of brief background, the father is 42 years of age and the mother is 32 years of age.  There is one child of their relationship, namely, X who was born in 2018. He is the subject of these proceedings. 

5. The father has two other children, namely, E, aged 12 years, and Ms F, aged 18 years. 

6. E lives with his father. Ms F lives in Sydney with her mother. The father has had no involvement in Ms F’s life. 

7. The father lives in G Region with E and works full time in transport. 

8. It is common ground that throughout the parent’s relationship, the mother cared for E and was regarded by him as a mother figure whom he called ‘Mum’. 

9. The mother lives in Brisbane and hopes to commence tertiary education in 2023. 

10. Neither parent is currently in a relationship. 

11. The parents met in about 2013 when they were neighbours.  They dispute the actual date of commencement of their relationship but agree that they did live together for a number of years before finally separating in about mid-June 2018.  X was only a few months old at that time, and he continued to live with his mother after separation.  For a couple of months thereafter, the mother and father seemed to have a reasonable co-parenting relationship that enabled each of them to spend time with X and E. 

12. On 19 August 2018, an incident occurred involving the mother attempting to take E from the father.  The mother contends that she had no intention of keeping E but rather was concerned for his safety on that evening.  Whatever the true situation, it led to a complete breakdown in their cooperation as parents. 

13. Court proceedings were commenced by the father and thereafter his time with X has been limited to supervised visits, currently for one hour per fortnight. 

14. X has experienced significant health issues since his birth.  The medical reports from his many treating specialists could not leave one in any doubt that he has had a very challenging life to date, having regard to the many diagnosed illnesses with which he has suffered.

15. In her most recent medical report, X’s treating paediatrician since birth, Dr J, summarises his current conditions as follows:

    [X] has a diagnosis of an autism spectrum disorder, complicated by [associated conditions].  Medical issues include [a condition] contributing to frequent [other conditions].

16. In her view, X is “well supported with NDIS [the National Disability and Insurance Scheme] receiving various therapies and also psychology input with [Ms K]”.

17. X has a team of specialists monitoring his very significant needs and with whom the mother consults on a regular basis. 

18. Until half way through day four of this trial, the father was seeking an order for X to live with him and spend supervised time with his mother, after a moratorium of no time, and gradually increasing to regular, unsupervised time. The father’s position was apparently informed by his contentions that the mother posed an unacceptable risk of harm to the child, having regard to her history of mental illness, including a diagnosis in or about 2012 of a serious mental condition and a concern that she may have in some ways caused the child to become ill in order to gain attention for herself.  I must say, on review of the child’s medical records, I consider the father would likely have had a very difficult task persuading me of that latter contention. 

19. In any event, given the degree of contact the child has with his treatment team, it could not be said that there is not ample opportunity for the child to be monitored. 

20. As to the mother’s conceded history of severe mental illness, I note that the father knew of that history prior to commencing his relationship with the mother and leaving her to care for his child, E.  I also note that her history of mental illness was not raised as an issue until after August 2018. 

21. According to the single expert psychiatrist, Dr L, the mother did not present at the time of interview in October 2020 with anxiety or depressive disorder, and there was no evidence of a psychotic disorder.  Her presentation was not consistent with current post-traumatic stress disorder.  In Dr L’s opinion, the mother’s history was consistent with a diagnosis of a different serious mental condition, severe in the years prior to 2013, but she did not meet the criteria for that diagnosis at the time of interview. 

22. Dr L felt unable to comment on the presence or resolution of the earlier diagnosed mental condition.  Dr L, quite appropriately, opined that such a history presents a risk should there be a deterioration in the mother’s condition.

23. Mr P is a psychologist who has provided treatment to the mother over an extensive period; initially from 2012 until about 2016, and then again from 2018 to date. The mother continues to see Mr P.  In Mr P’s view, the mother:

    (1)is currently well and has been well for a number of years;

    (2)has a well-established set of skills to deal with high level stress;

    (3)is very self-aware;

    (4)has exceptional emotional resilience skills; and

    (5)has a history of seeking help when needed.

24. I also note that there are two family reports that have been prepared in this matter by two very experienced family consultants.

25. In the circumstances, I am satisfied that the agreement reached by the parents and supported by the ICL best meet the needs of X and I make orders in terms of the minute signed by the parties and the ICL, as amended by me, with the consent of the parties.  I direct that the minute of order, initialled by me, remain with the Court papers.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated:       15 November 2022