Hossain & Karam

FEDERAL CIRCUIT COURT OF AUSTRALIA
Hossain & Karam [2021] FCCA 1606

File number(s): PAC 1322 of 2016

Judgment of: JUDGE NEWBRUN

Date of judgment: 15 July 2021

Catchwords: FAMILY LAW – parenting – best interests of child – orders made

Legislation:
Family Law Act 1975 (Cth), ss 60B, 60CC, 60CA, 65Y

Australian Passports Act 2005 (Cth), s 11

Cases cited: Banks & Banks [2015] FamCAFC 36

Number of paragraphs: 366

Date of last submission/s: 30 March 2021

Date of hearing: 5 and 6 November 2019
1, 2 and 3 February 2021, 30 March 2021

Place: Parramatta

Solicitor for the Applicant: Mr Brown

Counsel for the Respondent: Ms Dart

Counsel for the Independent Children's Lawyer: Ms Shea

Table of Corrections

5 August 2021 Annexure A inserted after Orders
ORDERS

PAC 1322 of 2016

BETWEEN:
MR HOSSAIN

Applicant

AND:
MS KARAM

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

15 JULY 2021

THE COURT ORDERS THAT:
1.That all previous parenting orders in relation to the child, X, born in 2015, be discharged EXCEPT Orders 3(a) and 3(b) made by consent on 6 November 2019 being Final Orders for X to live with the Mother and for the Mother to have sole parental responsibility for X.
2.That, CONDITIONAL UPON the Father’s compliance with Order 5, X shall spend time with the Father as follows:
(a)Stage 1:
(i)On six occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)For up to 4 hours on each occasion;
(iii)Such time to be supervised by B Families, City C;
(iv)With the cost of supervision to be paid by the Father.

(b)Stage 2 (following completion of Stage 1):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 2 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Mr D, Ms E, Mr F or Ms G PROVIDED THAT each supervisor signs an undertaking in accordance with Annexure “A” prior to commencing supervision AND has accompanied the Father to spend time with X on at least two occasions during Stage 1;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.

(c)Stage 3 (following completion of Stage 2):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 4 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Mr D, Ms E, Mr F or Ms G;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.

(d)Stage 4 (following completion of Stage 3):
(i)From 10 am to 4 pm on the first Sunday of each calendar month (or such other day/time as agreed in writing between the parties);
(ii)On the first six occasions, supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father;
(iii)Thereafter, changeovers to take place at a location agree in writing between the parties and failing agreement at City C, McDonalds.

(e)At such other times as agreed in writing between the parties.

3.That the parties facilitate FaceTime communication between X and the Father on the third Sunday of each calendar month (or such other day agreed between the parties).
4.In the event that the Father relocates his residence to City C then X’s time with him in accordance with Order 2 will occur on each alternate Sunday rather than monthly.
5.That X’s time with the Father in accordance with Order 2 is CONDITIONAL UPON the Father’s compliance with the following Orders:
(a)The Father is to continue treatment with Dr H, psychiatrist, for so long as Dr H deems appropriate.
(b)The Father is to comply with all recommendations made by Dr H in relation to his treatment, including but not limited to taking prescribed medication including depot injections.
(c)The Father it to provide an irrevocable written authority to Dr H within 7 days of the date of these Orders authorising Dr H to:
(i)Provide information to the Mother (if requested by her) in relation to the Father’s mental state; treatment plan and compliance with treatment;
(ii)Notify the Mother immediately in the event that the Father fails to comply with any aspect of his treatment plan, including attendance at review appointments with Dr H and adherence to prescribed medication including depot injections;
(iii)Notify the Mother immediately in the event that Dr H has any concerns in relation to the Father’s mental state;
(iv)Notify the Mother immediately in the event that Dr H ceases treatment of the Father;
(v)Notify the Mother immediately in the event that Dr H refers the Father to a different psychiatrist, including the name of the new psychiatrist.

(d)The Father is to provide a copy of the authority referred to in Order 5.3 to the Mother’s solicitor and the Independent Children’s Lawyer within 7 days of the date of these Orders.
(e)The Father is to arrange for each of the supervisors referred to in Order 2.2.3 and 2.3.3 to attend an appointment with Dr H for the purposes of receiving information from Dr H as to the Father’s mental illness; his treatment plan and the symptoms to be aware of when supervising his time with X, prior to commencing supervision.

6.Leave is granted to the Independent Children’s Lawyer:
(a)To provide Dr H with a sealed copy of these Orders, and
(b)To provide Mr D, Ms E, Mr F and Ms G with a sealed copy of these Orders, together with a copy of Dr J’s reports dated 30 September 2017 and 31 October 2017, and Dr H’s reports dated 12 February 2020 and 3 October 2020.

7.In the event that Dr H refers the Father to a different psychiatrist, Orders 5.1 – 5.4 apply in relation to the new psychiatrist and the Mother has leave to provide a sealed copy of these Orders to the new psychiatrist.
8.In the event that the Father fails to spend time with X in accordance with Order 2 on three or more consecutive occasions, Order 2 is suspended, unless the Father provides the Mother with a medical certificate indicating he has been unable to spend time with X due to illness.
9.That each party notify the other as soon as practicable in the event that X is hospitalised or suffers a significant illness or injury while in that party’s care.
10.That pursuant to s 65Y of the Family Law Act 1975 (Cth) the Mother be permitted to travel outside the Commonwealth of Australia with the child from time to time.
11.That pursuant to s11 of the Australian Passports Act 2005 (Cth) the Mother be at liberty to apply for a passport and/or renewal of passport for the child without the consent of the Father being obtained.

ANNEXURE “A”
I, (full name) hereby undertake that:
(1)I have read the Final Orders made by the Court on (date).
(2)I have read Dr J’s reports dated 30 September 2017 and 31 October 2017, and Dr H’s reports dated 12 February 2020 and 3 October 2020.
(3)I have attended an appointment with Dr H for the purposes of gaining an understanding of the Father’s mental illness and treatment plan.
(4)I understand that my role as supervisor is to protect X.
(5)I understand that I must be in the presence of X at all times when she is spending time with her Father.
(6)If I have any concerns in relation to the Father’s behaviour while he is spending time with X, I will immediately remove her from his presence and notify the Mother.

Signed:
Dated:
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 under the pseudonym Hossain & Karam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final parenting hearing relates to the child X born in 2015.
The Father lives in Suburb K. The Mother lives in City C.
The final hearing of these parenting proceedings commenced before Harman J on 5 November 2019, and the proceedings were adjourned part heard on 6 November 2019 following a successful application for an adjournment by the Father on 6 November 2019.
On 6 November 2019, the Court made, by consent and on a final basis, Orders that the child live with the Mother, and that she have sole parental responsibility for making major decisions for her. The Court made interim parenting Orders, inter alia, that the child spend supervised time with the Father at the City L contact centre on 15 November 2019, and, thereafter, supervised time for a period not exceeding 4 hours per fortnight, with such time to be supervised at all times by B Families. Notation 5 of those Orders stated that the issues for trial will comprise:
(a)Whether the child is to continue to practice a relationship with her Father, and, if so, how that practice of relationship will be defined; and
(b)Whether that practice of relationship requires supervision and, if so, by whom.
Harman J was unable to hear and determine these part heard parenting proceedings and on 23 September 2020, by consent, the parties agreed for a judge other than Harman J to hear and determine the proceedings. Inter alia, the parties agreed that the judge determining the proceedings could rely upon the transcript of evidence from 5 and 6 November 2019.
PROPOSALS
The Father’s proposals were originally set out in his Amended Initiating Application filed 27 January 2017. Inter alia, the Father had sought Orders that the parties have equal shared responsibility for the child; that the child spend time with the Father each Wednesday 3 PM to 7 PM, and every weekend from Friday 5 PM to Monday 8 AM; and once the child commences school, the child spend time with the Father in the first half of each NSW school holidays.
Ultimately, in a Minute of Order marked Exhibit A20, the Father proposed Orders as follows:
1.That until such time as the Father relocates his primary place of residence to City C New South Wales then the Father spend time with X as follows during school term:
(a)from the date of these orders for 3 months thereafter on one occasion per fortnight at City L Child’s Contact Centre, with the Independent Child Lawyer to provide the centre with the reports of Dr J and Dr H in this matter
(b)for a further 3 months thereafter from 9 AM Saturday to 5 PM Saturday on every alternate weekend, with such time to occur at Town M, New South Wales
(c)for a further period of 3 month thereafter from 12 noon Saturday to 5 PM Sunday on every alternate weekend with such time to occur at Town M New South Wales
(d)thereafter from 6:30 PM Friday until 5 PM Sunday on every alternate weekend, with the Father and X to stay overnight on Friday at Town M New South Wales but the child’s time with the Father otherwise to be at any location chosen by the Father
2.That from such time as the Father relocates his primary place of residence to or near City C New South Wales he shall spend time with X as follows during school term in place of the time set out in Order 1:
(a)from the date of these orders for 3 months thereafter from:
(i)from 9 AM Saturday to 5 PM Saturday every weekend
(ii)from 9 AM Sunday to 5 PM Sunday every weekend
(iii)on Tuesday and Thursday of each week from the conclusion of school until 6 PM
(b)for a further period of 3 month thereafter :
(i)from 12 noon Saturday to 5 PM Sunday on every weekend
(ii)from the conclusion of school Tuesday to the commencement of school Wednesday in every week
(c)for a further 3 months thereafter :
(i)from the conclusion of school Friday to the commencement of school Monday on every alternate weekend
(ii)from after school Tuesday until the commencement of school Wednesday in each week
(d)thereafter in every alternate week from the conclusion of school Friday until the commencement of school on the following Friday, with the Father’s time to commence on the first Friday of each school term
3.From a date 12 months after the making of these orders for one half of all school holidays and failing agreement the first half in every year ending in an even number and for the second half in every year ending in an odd number.
4.That from a date 6 months after the making of these orders the Father shall spend time with X from the conclusion of school Friday until the commencement of school Monday on the weekend closest to the Islamic festivals of Eid Al Adha and/or Eid Fitur.
5.That the Mother shall make X available and facilitate her taking telephone calls or audio-visual communication on 2 occasions per week and, failing agreement, at 5:30PM each Tuesday and Thursday with the Father to make such call.
6.That unless otherwise agreed, for the purpose of these Orders:
(a)where the Father does not primarily reside in City C each party shall do all acts and things to collect and deliver X to and from Caltex Service Centre at Town M Highway, Town M, New South Wales.
(b)Where the Father does primarily residing in City C, and where the Father’s time does not commence or conclude at the commencement or conclusion of a school day, then from the front of City C post office, unless otherwise agreed.
7.That each party shall be restrained from travelling outside of the Commonwealth of Australia with X
8.That the time that the Father shall spend with X shall be conditional upon:
(a)The Father continuing to attend upon Dr H for such assessment and treatment as recommended by Dr H ( or upon such other treating psychiatrist as Dr H may recommend)
(b)The Father complying with any recommendation of Dr H including allowing and requesting Dr H to interview such family members or other persons close to the Father to assist in his assessment and for the purpose of informing them about the Father’s mental health status.
(c)Attending upon Dr N, or upon such other medical practitioner as recommended by Dr N, for the administration of depot injections of such antipsychotic medication prescribed by Dr N (or upon such other medical practitioner as recommended by Dr N) or the treating GP of the Father for a period of 12 months from the date of these orders and thereafter as recommended by such medical practitioners.
(d)That the Father shall authorise any medical practitioner treating him with such depot injections to provide evidence that he has taken such injections to the Mother immediately after each injection.
(e)That the Father shall authorise the Dr N (or upon such other medical practitioner as recommended by Dr N) or the treating psychiatrist of the Father to advise the Mother forthwith of any failure of the Father to comply with treatment.
The ICL’s proposals are set out in her Proposed Minute of Order marked Exhibit ICL 3. Inter alia, the ICL sought Orders as follows:
1.That all previous parenting orders in relation to the child, X, born in 2015, be discharged EXCEPT Orders 3(a) and 3(b) made by consent on 6 November 2019 being Final Orders for X to live with the Mother and for the Mother to have sole parental responsibility for X.
2.That, CONDITIONAL UPON the Father’s compliance with Order 5, X shall spend time with the Father as follows:
(a)Stage 1:
(i)On six occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)For up to 4 hours on each occasion;
(iii)Such time to be supervised by B Families, City C;
(iv)With the cost of supervision to be paid by the Father.
(b)Stage 2 (following completion of Stage 1):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 2 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Mr D, Ms E, Mr F or Ms G PROVIDED THAT each supervisor signs an undertaking in accordance with Annexure “A” prior to commencing supervision AND has accompanied the Father to spend time with X on at least two occasions during Stage 1;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.
(c)Stage 3 (following completion of Stage 2):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 4 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Mr D, Ms E, Mr F or Ms G;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.
(d)Stage 4 (following completion of Stage 3):
(i)From 10 am to 4 pm on the first Sunday of each calendar month (or such other day/time as agreed in writing between the parties);
(ii)On the first six occasions, supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father;
(iii)Thereafter, changeovers to take place at a location agree in writing between the parties and failing agreement at City C, McDonalds.
(e)At such other times as agreed in writing between the parties.
3.That the parties facilitate FaceTime communication between X and the Father on the third Sunday of each calendar month (or such other day agreed between the parties).
4.In the event that the Father relocates his residence to City C then X’s time with him in accordance with Order 2 will occur on each alternate Sunday rather than monthly.
5.That X’s time with the Father in accordance with Order 2 is CONDITIONAL UPON the Father’s compliance with the following Orders:
(a)The Father is to continue treatment with Dr H, psychiatrist, for so long as Dr H deems appropriate.
(b)The Father is to comply with all recommendations made by Dr H in relation to his treatment, including but not limited to taking prescribed medication including depot injections.
(c)The Father it to provide an irrevocable written authority to Dr H within 7 days of the date of these Orders authorising Dr H to:
(i)Provide information to the Mother (if requested by her) in relation to the Father’s mental state; treatment plan and compliance with treatment;
(ii)Notify the Mother immediately in the event that the Father fails to comply with any aspect of his treatment plan, including attendance at review appointments with Dr H and adherence to prescribed medication including depot injections;
(iii)Notify the Mother immediately in the event that Dr H has any concerns in relation to the Father’s mental state;
(iv)Notify the Mother immediately in the event that Dr H ceases treatment of the Father;
(v)Notify the Mother immediately in the event that Dr H refers the Father to a different psychiatrist, including the name of the new psychiatrist.
(d)The Father is to provide a copy of the authority referred to in Order 5.3 to the Mother’s solicitor and the Independent Children’s Lawyer within 7 days of the date of these Orders.
(e)The Father is to arrange for each of the supervisors referred to in Order 2.2.3 and 2.3.3 to attend an appointment with Dr H for the purposes of receiving information from Dr H as to the Father’s mental illness; his treatment plan and the symptoms to be aware of when supervising his time with X, prior to commencing supervision.
6.Leave is granted to the Independent Children’s Lawyer:
(a)To provide Dr H with a sealed copy of these Orders, and
(b)To provide Mr D, Ms E, Mr F and Ms G with a sealed copy of these Orders, together with a copy of Dr J’s reports dated 30 September 2017 and 31 October 2017, and Dr H’s reports dated 12 February 2020 and 3 October 2020.
7.In the event that Dr H refers the Father to a different psychiatrist, Orders 5.1 – 5.4 apply in relation to the new psychiatrist and the Mother has leave to provide a sealed copy of these Orders to the new psychiatrist.
8.In the event that the Father fails to spend time with X in accordance with Order 2 on three or more consecutive occasions, Order 2 is suspended, unless the Father provides the Mother with a medical certificate indicating he has been unable to spend time with X due to illness.
9.That each party notify the other as soon as practicable in the event that X is hospitalised or suffers a significant illness or injury while in that party’s care.

The Mother’s proposals were initially set out in her Amended Response filed 29 November 2018. She sought Orders, inter alia, that she have sole parental responsibility for the child; that the child live with the Mother; that the child spend no time with the Father, or in the alternative, that the child spend supervised time with the Father for a period of not less than two hours on four occasions per year.
Ultimately, the Mother adopted the ICL’s above Minute of Order save and except to the extent that it provided for unsupervised time; that is, the Mother did not consent to the ICL’s proposal for unsupervised time proposed at proposed Order 2.4 in the ICL’s Minute.
EVIDENCE
In the determination of this case the Court has had regard to all of the written evidence referred to below together with the oral evidence given by each of the parties, Ms G, Ms E, Mr D, Mr F, Dr N, Dr H, Dr J, and Mr O. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However those that are important to the Court’s determination will be considered either in this section or whilst addressing the s.60CC factors.
The Father relied upon the following documents:
(a)Initiating Application filed on 23 March 2016;
(b)Affidavits of the Father filed 15 October 2018, 21 October 2019 and 28 October 2020;
(c)Affidavits of Mr D filed on 8 October 2018 and 30 October 2020;
(d)Affidavit of Ms E filed on 15 October 2018;
(e)Affidavit of Mr F filed on 16 October 2018;
(f)Affidavit of Dr H filed on 5 October 2018;
(g)Updated report of Dr H of 23 October 2019 (filed by leave of the Court - Exhibit A15);
(h)Family Report of Mr O dated 30 July 2018;
(i)Orders Federal Circuit Court Parramatta 24 May 2016;
(j)Orders Federal Circuit Court Parramatta 17 May 2017;
(k)Orders Federal Circuit Court Parramatta 11 December 2017;
(l)Father's Tender Bundle (sent to the Court on 23 October 2018);
(m)Affidavit of Dr H filed on 29 October 2020;
(n)Affidavit of Dr N filed on 30 October 2020;
(o)Affidavit of Ms G filed on 7 December 2020;
(p)Father's supplementary Tender Bundle;
(q)Transcript of hearing 5-6 November 2019;
(r)Minute of final Orders for the Father: exhibit A20;
(s)Case summaries filed 28 October 2019 and 26 January 2021;
(t)Outline of submissions for the Father (4 pages).
The Mother relied upon the following documents:
(a)Amended Response, filed 29 November 2018;
(b)Affidavits of Mother filed 29 November 2018 and 18 December 2020;
(c)Financial Statement, filed 29 November 2018;
(d)Tender Bundle prepared on behalf of the Mother;
(e)Affidavit of Dr J, filed 22 January 2018;
(f)Family Report, authored by Mr O, dated 30 July 2018;
(g)Report of Conclave between Dr H and Dr J, 20 October 2020;
(h)Case Outline documents dated 3 November 2019 and 29 January 2021
The ICL relied upon the following documents:
(a)Affidavit of Dr J filed on 22 January 2018;
(b)Family Report by Family Consultant Mr O dated 30 July 2018;
(c)Affidavit of Father filed 21 March 2017;
(d)Case Outline of ICL dated 3 November 2019.
The following Exhibits were relied upon:
(a)Exhibit A1-14: Tender Bundle index 1-14;
(b)Exhibit A15: Three page document of Dr H dated 23 October 2019;
(c)Exhibit A16: Photos from contact centre;
(d)Exhibit A17: Certificates x2;
(e)Exhibit A18: Applicant Father Tender Bundle;
(f)Exhibit A19: 3 Undertaking filed Documents;
(g)Exhibit A20: Applicant Father’s Minute of Orders;
(h)Exhibit R1: Suburb P Family Medical Practice;
(i)Exhibit R2: Q Counselling Service Material;
(j)Exhibit R3: Dr R;
(k)Exhibit R4: S Psychology;
(l)Exhibit R5: T Medical Centre;
(m)Exhibit R7: Department of Communities and Justice;
(n)Exhibit R8: Letter from Family Law Group;
(o)Exhibit R9: Letter from Dr R dated 7 February 2017;
(p)Exhibit R10: Letter from Mother’s employer regarding leave;
(q)Exhibit R11: Supplementary Tender Bundle;
(r)Exhibit ICL1: ICL Tender Bundle (Excluding page 1);
(s)Exhibit MFI (ICL1): ICL’s Aide Memoire;
(t)Exhibit ICL2: Family Report;
(u)Exhibit ICL3: ICL’s Minute of Order.
The Father
The Father was born in 1975. The Mother was born in 1977.
The Father suffers from severe pain in his left forearm which prevents him from working.
The Father has extended family in Sydney with whom he has a close relationship. His parents reside in Suburb U, and he has three brothers who live in Suburb V and Suburb W.
The Father has suffered depression. He still suffers from depression to some degree, however, he believes he can manage it by his lifestyle. He experiences depression when he reflects upon the limited time he has been able to spend with the child. The Father believes that he has experienced anxiety and depression by reason of an assault upon him in 1999.
The Father is from Country Y Australian cultural background. He is of the Islamic faith.
Since 15 October 2018, the Father has continued to see the child at the City L contact centre fortnightly in accordance with Orders. Since February 2018 he has been spending about four hours with the child each alternate Friday.
Following the adjournment of the proceedings on 6 November 2019, and up to 28 October 2020, the child only spent supervised time with the Father on 15 November 2019.
City C has about 580 km from the Father’s residence at Suburb K. The driving round-trip between the two places would be about 15 to 16 hours.
The cost to the Father of a supervised visit in City C would be about $840, including travel and accommodation expenses.
The Father, a disability pensioner, receives a disability pension of about $900 per fortnight. The Father understands he receives that pension by reason of an arm injury suffered and subsequent bone graft.
Between 6 November 2019 and 28 October 2020, the Father communicated with the child using FaceTime on 3 occasions.
On 1 September 2020, the Mother sent the Father 2 pictures of the child.
The Father has had injections of medication for the management of his mental health between November 2019 and October 2020 at the instance of his GP, Dr N.
The Father was cross-examined on 5 November 2019.
The Father stated that he had been prescribed antidepressants on numerous occasions over a number of years but he had not taken them. He stated that he has learned to deal with his depression in different ways.
The Father agreed that he had been diagnosed with schizophrenia. He stated that he could not remember which doctor had so diagnosed him but that it happened before year 2000. The Father agreed that Dr R, psychiatrist, was not the first doctor to diagnose him with schizophrenia.
The Father stated that Dr R and the prior psychiatrist that diagnosed him with schizophrenia were labouring under a misunderstanding; namely, that the Father had agreed with those doctors that he was having hallucinations whereas in fact he was experiencing flashbacks.
The Father stated that he had experienced flashbacks in relation to the previous assault upon him but that they were not hallucinations. He stated that Dr J had explained to him the meaning of the term hallucinations. Another person had also explained the term hallucinations to him prior to seeing Dr J. This person had explained to him that what he was experiencing was not hallucinations but post-traumatic stress disorder. The Father agreed that he had never gone to any psychiatrist stating that he believed he had post-traumatic stress disorder.
The Father agreed that he had experienced compulsive behaviour and panic attacks in the past.
The Father had previously told the doctor that he gets flashbacks in the back of his head. He denied telling a doctor that he had been hearing voices.
The Father was cross-examined in relation to the clinical notes of Dr Z, of 21 July 2011. The Father stated that he could not remember if he had told the professor that he was more depressed and hearing voices, anxious, and suspicious.
The Father stated that he had never taken the medication Zyprexa, nor Zoloft.
The Father denied taking any antipsychotic medications.
The Father stated that he could not remember giving a history to Dr AA, psychiatrist, in August 2013, that in 2001 he was hearing voices and wanted to cut himself in response to voices. He stated that he could not recall a point in time when he wanted to cut himself because of what voices were telling him.
The Father agreed that he presented to Dr AA with a long history of emotional instability. The Father agreed that he still has issues with emotional instability. In this context, he stated that he is emotional because he misses the child so much.
The Father agreed that in the past he had had difficulty controlling his anger.
The Father stated that he had previously engaged in self harming behaviours. The Father stated that in about 2012 at a gym he put some heavyweights on his legs and left them there for about five minutes resulting in some bruising. He denied having purposely cut himself.
The Father stated that he had previously thought about committing suicide but he had not attempted it.
The Father stated that he had suffered a major depression when he broke up with his ex-partner in about 1995.
The Father agreed that when he saw Dr BB in July 2014 he was suffering from depression and anxiety.
The Father stated that in the past doctors had prescribed medication and he had not followed their advice to take such medication. He stated that the reason he did not take that medication was because once he had seen the doctor he felt so much better and that he felt that his condition had improved because it just felt so good talking to the doctor.
The Father stated that at this point in time he does not need to take any medication because he has been examined by Dr H.
The Father stated that he does think it is important for him in these proceedings to prove that he does not have a mental illness in order to be able to have a relationship with the child. He stated that he does not have a mental illness.
The Father stated that he could not recall telling Dr BB in 2014 that he was hearing voices.
The Father stated that if he needs the medication he will take medication, but he does not need to take any medication.
The Father stated that he sees the whole case as being about the Mother not wanting him to have a relationship with the child.
The Father stated that the child has been well cared for by the Mother. He believes that the Mother is doing a good job looking after the child.
The Father denied imposing himself on the Mother sexually.
The Father stated that he was on the pension and was not working.
The Father stated that he has not paid any child support to date for the child.
The Father stated that he has chronic pain in his pelvis, arm and in his hip which impacts his life working.
The Father agreed that he had not had a conversation with the Mother since March 2017.
The Father stated that he would not pay for the Mother’s petrol costs of travelling from City C to Sydney and return.
The Father was cross-examined on 1 February 2021.
The Father stated that he was not sure whether he had been previously diagnosed with schizophrenia. The Father stated that he now does not recall taking antipsychotic drugs but it could be that he took them.
(The Court interpolates that the Father had stated in his claim form for a disability support pension in 2000 that he suffered from a psychotic disorder (mental illness) and that this disability had started to make it difficult for him to work for a number of years. In that form he stated that he often found his disability made it difficult for him to drive a car and that he was on antipsychotic drugs. In that form the Father stated that he found his disability made it difficult all the time to care for others.)
The Father stated that he did not tell Dr N on 7 November 2019 that he took monthly injections of Paliperadone.
The Father stated that there have been a number of occasions when he presented with anxiety and he still suffers from anxiety. He confirmed that he had had panic attacks.
The Father initially stated that since November 2019 to date he has not attended upon a psychologist. He later stated that he had seen a psychologist, Dr CC, in 2018.
The Father stated that he has had a mental health issue in the past but by 2012 it was only a small problem.
The Father stated that he does not have the financial capacity to pay for contact centre fees and petrol, and that was the reason he could not see the child after November 2019.
As to the Father’s proposal to relocate to City C, he stated that it depends on his brother. He stated that in the next six months he and his brother will relocate to City C, and he will live with the brother and his family. He had not lived with his brother for more than 20 years.
The Father confirmed that he had not yet made any application to the Housing Commission to transfer his Housing Commission accommodation to City C.
The Father stated that if there was no requirement for supervision, he would travel to City C to spend time with the child. If supervision was required, then he could not afford to pay the supervision fees.
In relation to the Father’s proposal to spend unsupervised time with the child in Town M “until such time as the father relocates his primary place of residence to City C”, the Father stated that he would take his caravan there and live in it. He stated that his partner, Ms G would come with him. The Father confirmed the child has never met Ms G.
The Father stated that he had had a new partner since the end of 2018. Ms G stays Friday and Saturday nights at his residence. They go out socially on Sundays.
The Father stated that Ms G knows about his anxiety and depression but he has never said anything to her about schizophrenia. He had not told Ms G about his disability support pension.
The Father stated that if his brother does not relocate to City C with him then he will live in his caravan or live in Housing Commission accommodation there. He confirmed that on making a Housing Commission transfer application it may take years for such application to be processed.
As to the ingestion of Paliperidone, the Father stated that until his treating psychiatrist Dr H says otherwise, he will continue to take it. He stated that he takes such medication for historical reasons and not because he is presently suffering from any mental health condition. In this context he stated that Dr H prescribed this medication because he has had a mental illness in the past.
The Father stated that his first injection was on 11 November 2019. He stated that he takes the injection every three months.
The Father was cross-examined about his consultation with Dr H, psychiatrist, on 12 February 2020. It was put to the Father that this doctor had recommended that the Father continue psychological support. The Father stated that this doctor had not stated that he had to see a psychologist. He stated that this doctor knew that he had seen Dr CC.
It was put to the Father that Dr H on 20 February 2020 and 19 March 2020 had recommended the Father to see a psychologist. The Father stated that he did not recall.
The Father agreed that on 11 May 2020 he had presented to Dr N with depressed mood, and unable to manage or cope. The Father could not recall Dr N referring him to see Dr CC on 11 May 2020. The Father stated that he had not seen Dr CC since November 2019.
The Father stated that since October 2020 he still experiences depression and anxiety but he is managing himself okay and that the injections have been helping him a lot.
The Father stated that the supervision costs in City C were $500.
The Father was questioned by the ICL as to his conversations with the child at the contact centre. The Father confirmed that he had said to the child, “I am going to go soon and I’m going to miss you. Mummy might not bring you anymore and I won’t be able to see you. That’s why I am going to miss you so so so much.” The Father stated that there was nothing wrong in saying to the child that the Mother may not bring her anymore to see the Father. He stated that the child has to understand why she will not see the Father.
The Mother
The parties’ relationship commenced in about 2010/2011. They never lived together. Their relationship ended when the child was born. Thereafter, the child did not spend time with the Father until August 2016, as referred to below.
The Mother works as an administrative assistant, part-time, for Employer DD. She works a four-day week, Monday to Thursday, with her hours being flexible.
Orders were made on 24 May 2016 that the child spend supervised time with the Father at City L. The child’s first visit with the Father took place on 12 August 2016.
At a supervised visit between the child and the Father on 26 August 2016, the child became too distressed for the visit to continue, and after 20 minutes the visit was terminated.
On 2 September 2016, the Mother told an officer from the contact centre that she understood the importance of the child having a relationship with the Father but she wanted both the child and herself to be safe.
The supervised visit occurred on 9 September 2016.
Further Orders for supervised time between the child and the Father were made on 27 September 2016.
Since 9 September 2016, the supervised visits at the contact centre continued without incident.
Further Orders for supervised time between the child and the Father at the contact centre were made on 2 February 2017, with an accompanying Order made for unsupervised time of 30 minutes at the contact centre outdoor playground facilities. The Father was restrained from taking the child and any motor vehicle and for the Father to obtain a report from his treating psychiatrist.
Further Orders for supervised time between the child and the Father at the contact centre were made on 17 May 2017. Following those Orders and up to 29 November 2018, the child spent supervised time with the Father at the contact centre each alternate Friday for 4 hours.
The Mother moved to City C from Sydney in May 2014.
Between 2014 and 2015 the Mother was working in City C.
The Mother was on maternity leave from 2015 to 2016. During this time she resided in Sydney. The Mother return to City C and resumed employment in 2016.
Following the child’s birth, the Father threatened to come and get the child and take her away from the Mother if the Mother did not let him spend the night with the child.
After about four weeks following the child’s birth, the Father spent time with the child at the Mother’s residence each evening, over a period of about two and half months. During these visits, the Father harassed the Mother emotionally and sexually. There were many occasions during this period that the Father would argue and yell at the Mother while she was holding the child and she would be crying. During this period the Father was verbally abusive to the Mother.
The Mother told the Father in about July or August 2015 that his constant texting and calling throughout the night was causing the Mother stress and loss of sleep and was affecting her ability to breastfeed the child.
During September 2015, the Father’s behaviour was erratic and irrational, and if the Mother tried to discuss a topic with the Father he would not agree with, the Father became enraged and started verbally abusing and threatening the Mother.

Due to the Father’s escalating threats, and due to fears for the safety of the child and the Mother, in September 2015, the Mother left her accommodation and moved in with the maternal Grandmother. At this time, the Mother decided to cease all time between the child and the Father. The child did not spend time with the Father from September 2015 to August 2016.
Orders made on 17 May 2017 provided that the child spend time with the Father each alternate Friday for four hours supervised by the contact centre. Those Orders were facilitated (at least up to the Mother’s Affidavit filed 29 November 2018) by the Mother and she drove from City C to City L which took between 2.5 hours to 3 hours.
Since 29 November 2018, the Mother was solely responsible for financially supporting the child and herself. The Mother received no financial support from the Father to assist with the child’s daily living expenses.
The Mother acknowledged the importance of the child have a relationship with the Father. She was therefore unable to return to work full-time in January 2018, as she would not have been able to continue to facilitate the child spending time with the father at the contact centre on Fridays.
The Mother asserts that she needs to return to full-time work.
The Maternal Grandmother lives in Sydney. Her three-bedroom rental property is insufficient to accommodate the Mother and the child, with the Mother’s sister living with the Maternal Grandmother. The Maternal Grandfather lives in City EE.
The Mother does not have the financial means to travel to Sydney more often to see her family.
The Mother asserts that her financial situation is dire.
The child has not spent time with the Father since 15 November 2019. Since November 2019, the child has spoken to the Father on the phone on a few occasions. The child, when she speaks to the Father, is engaged and discusses things that are of interest to her.
The Mother has a brother who resides in Canberra and he has a child.
The Maternal Grandparents have travelled to City C during school holidays to spend time with the child and the Mother and to care for the child whilst the Mother is at work.
The Mother works as an administrative assistant, employed full-time by Employer DD. She works five days a week Monday to Friday and earns $977 after-tax per week.
These parenting proceedings and the cost of the child’s visits with the Father at the contact centre have caused the Mother financial hardship.
The Mother gave oral evidence.
The Mother stated that for two and half years the Father was able to travel to spend supervised time with the child and he met the cost.
The Mother stated that she did not know how the child’s former relationship with the Father could be developed if she was only spending four visits each year with the Father for two hours each visit.
The Mother stated that after the child was born the Father was very volatile.
The Mother stated that she had not disclosed to the Father the identity of the child’s school because she did not want the Father to take the child away. The Mother stated that she feared this could happen by reason of a conversation she had with the Father after the child’s birth.
The Mother stated that the child had commenced school in 2020.
The Mother stated that she cannot afford the cost of petrol to drive to City L (from City C and return). She stated that it was a huge financial relief for her not to have to travel to City L every pay period. She gets paid fortnightly.
The Mother stated that she did not have the financial capacity to contribute towards the cost of the tank of petrol in relation to the Father driving to City L to spend supervised time with the child. For her own vehicle, she stated that it cost $100 to fill up her car with petrol and that it takes a full tank of petrol to get back and forth from City C to City L.
The Mother confirmed that prior to November 2019, and since about 2016, the child had been spending time with the Father at City L supervised each fortnight. The Mother stated the child appeared to have enjoyed this time. The Mother stated that the child’s supervised time with the Father was a positive experience for the child; the child and the Father played games and there was interaction. The Mother stated that it was important for the child to get to know the Father. She stated that the Father has qualities as a person to offer the child; he is fun, he engages with the child, and he is generous with his time with her, and he loves the child.
The Mother stated that the trip home from City L to City C was about two and half hours.
The Mother stated that there is a benefit to the child from continuing to spend time with the Father on a supervised basis, other than simply knowing who he is. The benefit was that the child gets love from the Father and that she knows the Father loves her, and the child and the Father have positive play together. The Mother thought the child loves the Father.
The Mother stated that she had given the Father information over the telephone about the child’s schooling.
The Mother confirmed that she had previously arranged for FaceTime time between the child and the Father, since the child last spent face-to-face time with the Father in mid November 2019.
The Mother stated that it would be in the child’s interest to have some telephone or video communication with the Father if the Court makes Orders for the child to spend some time with the Father. The Mother stated that Sunday afternoons would probably be the best time for such communication.
The Mother confirmed that she has had no direct interactions with the Father since 2015, apart from brief telephone conversations with the Father to organise FaceTime calls.
The Mother stated that she was not aware of the Father’s medical history of the time that she was in a relationship with him, including any mental health diagnosis.
The Mother stated that based upon the medical evidence that she had become aware of in these proceedings, relating to the Father, she does not trust him.
The Mother stated that one of her chief concerns in relation to the child spending unsupervised time with the Father was that the Father might take the child from her.
The Mother confirmed that she had told the family report writer that in the event of the Father’s proper medical treatment, she would be prepared to move towards unsupervised paternal time for the child. She stated that she would want a 100 percent guarantee that the Father would not experience any symptoms before she would be prepared to move towards unsupervised time.
The Mother referred to remembering a couple of incidents in relation to the Father, in relation to his mental health, and she gave this evidence:
Okay?   And there were a couple of incidences. One of them I remembered only this week, so it’s definitely not in my Affidavit, and one of them I do remember, like, I mean, these are incidents that – incidents that happened that I thought was a peculiar thing for him to say or do.
Right?   But
What were the incidences?   Okay. So one of them, which I recall previously, he was saying to me – he said to me that jinn get in through their eyes
HIS HONOUR:   Sorry. I missed that?        and – jinn. He said jinn get into, like, statues. Jinn get into statues, and they whisper to you.
Who’s jinn?   Jinn
MS SHEA:   Who or what is jinn?   Well, I believe jinn to be evil spirits.
And what do you base that belief on?   On what Mr Hossain said to me.
Sorry. You refer to Mr Hossain as Mr Hossain, don’t you?   Yes.
Right?   Sorry. When I first met him he told me his name was Mr Hossain, and I just
Okay?   It’s a habit for me to call him Mr Hossain.
Sure. Okay. So what did Mr Hossain tell you about jinn?   Well, he said – like, he mentioned it a couple of times, like, “Jinn get into statues, and then they whisper to you.”
Jinn get into statues, and they whisper to you?   Yes, something along those lines. I can’t recall exactly word for word what he said. Then there was a – a time where someone had brought a – a – a toy – a child’s toy to his place for X. So this was in the first three months of her life, and he brought that toy to me, and he said that he didn’t want it in his house because the jinn get in through their eyes and they whisper to you or something along those lines. Again, I can’t recall the exact – exactly what – what happened.
Ms G
Ms G commenced a relationship with the Father in about 2018. They do not reside together.
She has never seen the Father lose his temper, nor has she seen him behave in a violent or aggressive manner.
The Father has told her that he has suffered from depression and anxiety. For her part, she has not seen the Father suffering from depression or being in long depressive mood.
She has not met the child.
She is willing to supervise the child’s time with the Father. She is prepared to travel with the Father to City C to supervise time or assist in whatever way she can. If the Father moved to City C, she would intend to remain living in Sydney but would be willing to travel to City C on weekends to supervise the Father’s time with the child, if called upon to do so.
In oral evidence, she stated, inter alia, that she sees the Father 3 to 4 times per week.
She stated that she does not know how the Father supports himself financially. She has not discussed his employment with him. She has discussed her position at Employer FF with the Father. She has been to his residence but she has not asked him about the nature of his accommodation such as whether he rents his accommodation.
She stated that she does not understand why the Father might need to have his time with the child supervised. She understands that the Father has never had unsupervised time with the child. She is aware that the Father has not seen the child for about 15 months, and that supervision at the contact centre stopped.
She stated that within herself she questioned why the Father’s time with the child might be supervised. She stated that she does not see why the Father needs supervision.
She stated that the Father has not disclosed anything to her regarding his mental health in any depth. He had not spoken to her about his attendances on a psychiatrist, nor about specific medications. He had not told her about any mental health condition that he has been diagnosed with.
Later, when cross-examined by the ICL, she stated that the Father had told her that he had previously experienced depression and anxiety as a result of an incident in 1999. She stated that the Father had not told her that he had suffered depression and anxiety since that time. She had understood that the Father’s experience of depression and anxiety was in the distant past.
She stated that the Father had not discussed with her the Mother’s allegations as to how the Father acted towards her. He had not told her of the Court Order regarding the Father not contacting the Mother.
She stated that the longest time she had spent with the Father was 3 to 4 days continuously and which occurred recently during Christmas 2020 when she and the Father went to City GG and stayed in the caravan on the beach.
She stated that she was aware of the caravan located at the Father’s residence and that he has luxury motor vehicle, an older model, which could tow the caravan.
She stated that she had not ever known the Father to have financial difficulties.
She stated that the Father had told her that he is on some form of medication for his mental health, however, he had not told her what it is and what it is for. She had never asked the Father about his medication because that was his personal issue.
She stated that the Father had never told her, since the start of their relationship, that he was suffering depression, anxiety, panic attacks, or had difficulty coping or managing.
She stated that she spends time with the Father at his home and in her home. She stays at his home on Friday and Saturday nights and sometimes mid week. He stays at her home once a week.
She stated that since 2018 to the present she has not lived together with the Father.
She stated that she has seen the Father continuously since 2018 to date.
She confirmed she was prepared to supervise the child’s time with the Father. Her role would be to make sure the child was safe and looked after well. In terms of ensuring the child’s safety, she stated that she would not know what to look out for specifically. She stated that she does not know why the Father’s time with the child needs to be supervised. She could not see the reason for supervision.
She stated that she had never seen irrational behaviour by the Father or seen him experience a mental health episode.
Ms E
Ms E had sworn an Affidavit filed 15 October 2018. She is the niece of the Father. She is aged 24 years. She is Mother of three young child and is at home full-time with them.
In her Affidavit, she asserted that she is part of a close extended family which includes the Father. She asserted that the family gets together about once a week and the Father will usually be there together with other extended family members. She asserted that the Father is very good with children to her observations and she has often seen him interacting and playing with her own children and other children. She asserted that those child are very comfortable with him and appear to have a lot of fun with him. She asserts her preparedness to supervise the Father’s time with the child.
Ms E was cross-examined.
The witness stated that she had not been provided with much information from the Father as to any mental health diagnoses he has had or alleged to have had.
The witness stated that she had not considered in-depth what might be necessary in terms of the extent of possible travel to City C to supervise the child’s time with the Father.
The witness stated that in 2020 she had seen the Father at least once or twice each month at family gatherings.
The witness stated that she had not met the child.
The witness was asked what might require her to be present when the child spent time with the Father. She stated that nothing came to mind and the Father was good with her children.
The witness stated that she had been told, having attended Court at the end of 2019/start of 2020, that the Father had been previously diagnosed with schizophrenia. As to the relevance of schizophrenia to her possible role of supervisor, the witness stated that if the Father started to act differently or his emotions took over, she would remove the child.
The witness stated that she would be prepared to travel to City C each fortnight to supervise. She stated that she had met the Mother once or twice when she was a lot younger. She agreed that she was a full-time Mother, and that her husband works full-time.
Mr E
Mr D’s two Affidavits were filed on 8 October 2018 and 30 October 2020. He is a brother of the Father.
He is 34 years of age. He is married and has three children. He is a self-employed transport worker. His partner does not work and cares for their child full-time. He states he has some flexibility in his work arrangements. He states that the Father and himself come from a close extended family. He states that he was aware that the Father was severely assaulted in 1999 but has not spoken about it at great length. He states that he has seen that the Father has been prone to depression and anxiety since the assaults. He states that he is prepared to supervise the Father’s time with the child.
This witness gave oral evidence.
He stated that the Father had not told him he had been diagnosed with schizophrenia nor that he takes an injection for that condition.
He stated that a caravan was purchased for the Father’s use in about mid 2019. He had purchased it to support the Father to see the child. The cost was about $30,000. He stated that he has assisted the Father from time to time with his financial needs. He stated that he likes to help out as much as he can. He stated that if the Father asked him for financial assistance he would provide it. He stated that the Father has a boat which he purchased for the Father for between $10,000 and $15,000.
He stated that he has a plan to move to City C. He had a conversation with the Father to move there within the last year. He stated that is waiting for a good property to purchase. He stated that he had never been to City C. He stated that he was planning to start his own business there.
The witness was questioned as to why the Father’s time with the child is supervised. He stated that the Mother had accused the Father of having mental illness. He stated that for a long time the Father had no mental problems and that he had not seen anything. He stated that he sees the Father 2 to 3 times per week and they talk to each other each day.
The witness stated that he would travel to City C to supervise the child’s time with the Father. He saw his role as a supervisor to ensure the child’s safety. He stated that he has never seen the child.
The witness stated that he had purchased a Motor Vehicle 1 for himself and the Father.
The witness stated that his children attend an Islamic school at Suburb HH. He had not made enquiries as to a school in City C.
The witness agreed that his extended family give himself and his wife support with their children, and that none of that support would be available if they moved to City C. He stated that the wife has extended family in Sydney as well.
As to prospective supervision and the Father possibly experiencing an “episode”, he stated that an “episode” would be an obvious change in someone’s behaviour indicating that the child was not safe. He stated that he has not witnessed this with the Father. He stated that if something changes and he sees a sudden change in behaviour and the need arises, he would see the child was safe.
Mr F
This witness’ Affidavit was filed 16 October 2018. He is aged 44 years. He is a brother of the Father.
He is married and has two children. He is a transport worker by occupation. He has flexible work arrangements. He does not work on weekends. He has a close extended family. He is prepared to be a supervisor for the Father’s time with the child.
This witness gave oral evidence.
He stated that he understands the Father’s time with the child has always been supervised. He was not sure as to why such time has been supervised to date. He stated that he did not think the Father needed supervision. He stated the Father always interacts with his children and he doesn’t see a problem.
The witness stated that he had seen the Father’s mental health condition improve since being assaulted 20 years ago. He does not see any problems that the Father has. He stated that he sees the Father a few times each week. He stated he was not aware of the allegations against the Father in these proceedings.
The witness stated he had had no conversations with the Father about his plans to live nor of his proposals to move. He does not financially support the Father.
The witness understood that if he was to supervise the child’s time with the Father he may be required to travel to City C. He had never been to that place. He stated that any supervision he might provide would be to ensure the child is in a safe place and is happy. He stated that he had never met the child.
The witness stated that his brother, Mr D, had mentioned to him moving to City C and establishing some sort of business there.
The witness stated he was not aware of the Father being under the care of a psychiatrist or taking any medication.
Dr N, the Father’s GP
In the report dated 11 February 2020 from this doctor to the Father’s treating psychiatrist, Dr H, Dr N stated that the Father has been attending upon him since Dr H has advised the Father to have injections of Paliperidone. He stated that these injections were given on 11 November 2019, 9 December 2019, 8 January 2020, and on 11 February 2020, Dr N switched the Father over to 3 monthly injections, with the first one given on 11 February 2020 being 175 mg of Paliperidone.

In the further report of Dr N dated 11 February 2022 Dr H, it was stated that the Father had injections on 11 May 2020, and 3 August 2020. Dr N stated that the Father appears well-adjusted and regular at his presentations.
Dr N gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The doctor stated that the Father had attended upon him on 7 October 2020, 30 October 2020, and on three occasions in November 2020. On 3 November 2020, the Father presented with mild anxiety and reduced mood. He was non-suicidal. On 9 November 2020 he presented with mild anxiety, and on 10 November 2020 he presented with anxiety, and no tremor was seen.
The doctor was asked by the ICL whether the Father attended upon psychologist Dr CC. The Court observes that the ICL’s tender bundle, Exhibit ICL 1, indicates that at pages 5 and 6 the Father was seen by Dr CC on 11 November 2019 with depressive symptoms, low tolerance to stressors, continues to care for his Mother, panic attacks. In Dr CC’s clinical notes it refers to CBT, exposure therapy, stress management therapy.
Dr N confirmed that on 12 February 2020, Dr H had written to him recommending the Father trial the medication Lexapro for sleep and mood. Dr N stated that Dr H prescribed Lexapro, not himself.
Dr N confirmed that the medication Paliperidone was an antipsychotic medication. It was not commonly used for anxiety and depression.
Dr N stated that when he prepared a mental health care plan for the Father on 11 May 2020, he had raised with the Father the issue of the Father attending upon a psychologist. The doctor had given referrals for the Father to see Dr CC and Ms JJ, both psychologists.
Dr N was asked whether the Father was distressed in 2020. The doctor stated that the Father was not severely distressed, however, he was definitely anxious and had signs of anxiety. He stated that the Father had not done anything out of the ordinary in the waiting room or in consultation with him; he had not displayed any psychotic behaviour.
Dr N confirmed that the Father was attending upon him voluntarily to have the three monthly injections. He agreed that in the absence of a community treatment Order, there was no way of compelling the Father to have such injections.
In re-examination, Dr N stated that if this Court ordered the Father to have the injections, he would be happy to, inter alia, contact the Mother should there be no attendance by the Father upon the doctor for his three monthly injections.
Dr H, the Father’s treating psychiatrist
This doctor had sworn Affidavits filed 5 October 2018 and 29 October 2020. These Affidavits annexed, in total, 4 reports of the doctor in relation to the Father.
There were further reports of this doctor in evidence being Exhibit A 15 and dated 23 October 2019, and a report of the doctor to Dr N dated 13 November 2019 (page 3 in Exhibit ICL 1). There was a report of the doctor dated 12 February 2020, annexed to the Father’s Affidavit filed 28 October 2020.
The doctor’s report of 18 August 2018 stated, inter alia, that the Father sees Dr N GP and had seen a psychologist Dr CC.
The doctor stated that the Father attended due to feeling stressed about an upcoming family Court hearing on 17 September 2018 regarding access to the child.
The Father denied any evidence of psychosis, including hallucinations, paranoia, thought interference, passivity, referential delusions and somatic delusions. The Father denied any previous psychotic episodes, or manic symptoms.
In relation to a previous assault upon him in 1999, he referred to having seen a psychiatrist who had mistaken his flashbacks for auditory hallucinations and prescribed medication for him which he had not taken.
The Father told the doctor he took no regular medications.
The doctor did not find any grounds to diagnose the Father with any mental disorder.
The doctor’s reports of 25 August 2018 and 29 October 2018, relating to further consultations at those times, referred to the doctor not finding any grounds to diagnose the Father with any mental disorder, and in the last report, stated that he did not have any recommendations for psychotropic medication treatment.
The doctor’s report of 23 October 2019 refer to the Father presenting with mild anxiety and depressive mood on this date. The Father denied having any suicidal ideations or paranoia or hallucinations.
The Father denied any previous psychotic episode, or manic symptoms. The Father referred to having previously experienced depression following an assault in 1999 upon him but that his depression resolved after a year. He stated that there were no other instances of depression or anxiety.
The doctor stated that mental health examination demonstrated mild depressive and anxiety related symptoms, but not impairing. The doctor stated that the Father does not meet any criteria for a mental illness at this time and does not require any formal treatment.
The doctor’s report of 13 November 2019 stated, inter alia, that the Father has become a bit depressed and more anxious since the Court hearing the previous week. He had seen a psychologist Dr CC. There was no evidence of psychosis reported and the Father had declined antidepressant. The doctor, under the heading “Impression” stated that the Father has mild depressive symptoms, and has been commenced on Invega Sustenna monthly depot for a historical diagnosis of schizophrenia. The doctor recommended, inter alia, that the Father continue psychological support, and continue Invega Sustenna 75 mg monthly for three more months, then over to Invega Trinza 175 mg every three monthly depot injections.
The doctor’s report of 12 February 2020 stated, inter alia, that the Father’s mood was low. The doctor stated that the Father has had three monthly Invega, and now has had his first three monthly Trinza injection. The doctor stated that the Father has mild depressive symptoms, and has been commenced on Invega Trinza three monthly depot for a historical diagnosis of schizophrenia. The Father should continue psychological support, continue Invega Trinza 175 mg three monthly, and trial Lexapro for sleep and mood.
The doctor’s report of 3 October 2020 stated, inter alia, that the Father has been on regular Trinza which the Father had found helpful in reducing the intensity of his stress due to the upcoming court case.
The Father denied any psychotic symptoms.
The doctor referred to the medication Invega Trinza 175 mg three monthly.
The doctor stated that on mental state examination, there was no suicidal ideation or paranoia or evidence of psychosis. The doctors “Impression” was that the Father has some stress related to the Court case in February 2021, but no other significant psychiatric symptoms, and he appears to be tolerating the Trinza.
The doctor gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The doctor confirmed that on about 6 November 2019 he was provided with the reports of Dr J, psychiatrist, and various other medical records pertaining to the Father. The doctor agreed that, in broad terms, what was contained in those medical records and Dr J’s reports was inconsistent with the history that had been provided to him by the Father. The doctor stated that having reviewed those records it caused him to change his professional opinion as to the Father’s mental health, and that at that point in time he formed the conclusion that the appropriate diagnosis for the Father was schizophrenia based on the historical evidence. The doctor agreed that the diagnosis of schizophrenia remained applicable in relation to the Father. The doctor stated it was for that very reason that he had continued to recommend that the Father receive Depot injections.
The doctor stated that he had prescribed the Father the medication Trinza which was the same as Paliperidone; it was a more longer release formulation that lasts for three months. Trinza was specifically used to treat psychotic disorders.
The doctor stated that having considered the medical records in Dr J’s report, he communicated to the Father’s legal representative that he considered that the Father met the diagnostic criteria for schizophrenia based on those records.
The doctor confirmed that on 7 November 2019 the Father had attended upon his GP, Dr N, and received an injection of Paliperidone.
The doctor stated that schizophrenia is a long-term disorder, and it can wax and wane, and there can be episodes where there is no symptoms. Clarifying, the doctor stated that there are a small population of people who do have psychosis who actually do recover fairly well. He stated that this was a small percentage, but by and large people tend to have a relapsing remitting course, or have long-term low-grade psychotic symptoms. The doctor stated that schizophrenia can have long-term impacts on patients in terms of their cognitive functioning and most of the time it does. He stated that it can also affect their concentration, attention and memory.
The doctor stated that the Father had agreed to the treatment of antipsychotic medication because he feels it would be good for him. The doctor stated that in terms of the Father’s insight into his symptomatology, he did not think the Father had a significant insight into the symptomatology “or that he has no symptoms, because he has denied any symptoms whenever I have asked him.” Clarifying, the doctor stated that the Father does not have sufficient insight into any symptoms he has or he does not have a lot of symptoms that he is aware of.
The doctor stated that the Father requires ongoing engagement with a psychologist.
The doctor stated that the history the Father gave him about his disability support pension was that it was for his hand injury.
The doctor agreed that the Father, in his consultation with him on 18 August 2018, was not honest with him about the true nature of his mental history in that the Father gave a very different account to what was subsequently supplied in Dr J’s records.
The doctor gave this evidence:
When you say that some patients with schizophrenia tend to confabulate a history, can you just expand on what you mean by that?   Yes. So sometimes patients that I’ve seen who are clearly psychotic when they come into the hospital and get treated, subsequently down the track when you follow them up, say, six months or a year down the track and you ask them about their experiences about that admission they give a very different account or version of what happened, and it can be quite distorted or quite different to what was observed objectively by people who seem them when they’re unwell. I hope that makes sense.
Certainly. So is it that there are two hypotheses in terms of the history that the Father has provided, firstly, that he lacks insight and has confabulated his history as a result of that lack of insight?   Yes. That’s one hypothesis.
The other hypothesis is that he has purposely misled you?   That’s another hypothesis, yes.
In terms of the diagnostic tools that you have been applying in relation to the Father, they’re clinical tools to assist you in identifying symptomology for patients; that’s correct?   Yes. Identify and track progress.
And those tools and those screening tools that you’ve been applying with respect to Mr Hossain are only valid to the extent that a patient is honest with you, aren’t they?   That’s correct. They’re not – they do not have embedded performance relativity testing.
So that if the Father was seeking to purposely mislead you, he would have an understanding as to what answers he would need to give in order to receive the result that he was hoping for?   That’s certainly possible.
Given what you know of the Father’s lack of accuracy as a historian in relation to his mental health, does that give you any reservations on relying on those screening tools as being an accurate indicator of the Father’s current functioning?   Yes. It would certainly give me significant reservations as to what the accuracy was.
The doctor stated that the Father had told him on 13 November 2019 that he wanted to continue the depot injections because it would help him see the child.
The doctor gave this evidence:
I’m sorry. Yes. Yes. Can you please assume that when I’m talking about antipsychotic medication – I will try to be more specific. This particular one that you’ve prescribes for Mr Hossain is not something that you would prescribe lightly, is it?   That’s correct. It’s not one that I would prescribe lightly.
All right. And would it be fair to say that you wouldn’t prescribe this medication for somebody simply because they say to you they want medication to help them see their child?   Yes. Generally, that’s correct.
Well, in relation to Mr Hossain is that correct?   His is a bit different, because by that stage I had read through the reports from Dr J. So it cast a bit of a shadow of doubt to whether or not he was under reporting his symptoms, and so on the balance of probability, and given that he had already tolerated that injection and he was agreeing to continue with that injection, and the possibility that he was having psychotic symptoms without reporting them, I decided to continue it as – as a trial.
The doctor stated that prior to the above consultation, he had received on or about 6 November 2019 the family report of Mr O, and the reports from Dr J of September and October 2017.
The doctor stated that the medication Zyprexa was an antipsychotic.
The doctor stated that hearing voices can be considered a psychotic symptom.
The doctor stated that the medication Olanzapine was the same as Zyprexa.
The doctor gave this evidence:
MS SHEA:   Having now heard that from me, and if you assume for the moment that I’m accurately summarising the history of Mr Hossain’s attendance on psychiatrists prior to seeing you, does that confirm or cause you to change in any way the impression that you had in November 2019?   Does it confirm or change my impression. It changed my impression to him having the diagnosis of schizophrenia.
In what way?   In that there is a strong evidence of a background history of schizophrenia and, also, that he has been on medication that is inconsistent with his reporting, and that there has been a history of poor engagement, as well, in terms of taking medications and following up with appointments with previous treating clinicians.
…..
MS SHEA:   Thank you. Thank you. To be fair, Dr H, the Father, when he was asked about this history in court, the Father’s evidence was he never took the medication. All right. So     ?   Okay.
Does that cause you some concern that this would be recorded by his treating psychiatrists over a number of years, and yet the Father denies taking the medication?   Yes, it does.
It’s perplexing, isn’t it, Dr H. To put it lightly?   Yes. Yes.
Because would you agree with me     ?   Yes.
that either the Father was telling the truth when he saw Dr – Z, Dr AA and Dr R, he was telling the truth and reporting his symptoms accurately and those doctors were properly prescribing medication to him, which he was taking, or he was lying to them about it and not taking the medication?   Yes. It becomes a bit unclear which one is the case, although, I suppose, given that it – it – there has just been quite a lot of inconsistencies, it becomes expected that, you know, it’s a bit unclear what to believe or how sure – how sure any of his accounts is accurate.
Yes?   Either historically or currently.
Well, I was just about to say, and does that cause you to reflect upon the accounts that Mr Hossain has given you as to his symptoms?   Sure. Yes.
Is it uncommon for people with schizophrenia to under report their symptoms?   It’s probably fairly common, but it’s probably hard to know how many, because that’s the nature of the under reporting.
Yes. True. And lack of insight into one’s condition, that’s fairly – that’s a common feature of schizophrenia, isn’t it?   Yes, it is. It’s common.
The doctor stated that for now it was his opinion that the Father should continue the depot injections. He stated:
MS SHEA: But the extent of its effectiveness, that’s the effectiveness of the injections, depends very much on Mr Hossain’s self-reporting, doesn’t it? Yes, it does. Yes. Although, things that we can objectively monitor would be improvement of functional status, although sometimes the function doesn’t improve much.
The doctor stated that if it was the case that the Father has not continued psychological support since February 2020 it probably would not have changed the Father’s risk profile, nor would it have really changed any concern about the symptoms of the psychosis being worse.
The doctor stated that Lexapro was an antidepressant.
The doctor gave this evidence:
MS SHEA:   Would it be fair, Dr H, what you’re saying is from a psychiatric perspective your priority was to manage any psychotic symptoms the Father might have, and that your recommendations as to psychological support and antidepressant medication wasn’t targeted at that?   That’s correct.
All right. And you were satisfied that – or you are satisfied, are you, that his psychotic symptoms, if any, appear to be appropriately managed by the injections?   As far as I could tell from the available evidence, and again that can be inconsistence, but there were no other evidence going against it.
All right. But the available evidence – when you say the available evidence, that comes back to his self-reporting; is that right?   That’s correct. And also the mental state examination, for what it’s worth.
Is that also based on self-report? In part, but it also covers things based on objective observation. So how disorganised his behaviour is, whether or not his speech is disorganised, if he appears to be preoccupied with, you know, internal stimuli that is not readily apparent to other people, if he has become more dishevelled and has poor self-care, as well. So sometimes that comes hand in hand with people having acute psychotic episodes, but that wasn’t – that has not been a feature of his when I’ve seen him.
The doctor stated that he had recommended in his report of February 2020 that the Father see him for review in three months. He confirmed that the Father did not return to see him again until October 2020 and that was of concern in case the Father’s mood worsened or there was any adverse reactions to the medications.
The doctor gave this evidence:
Would you agree with this proposition, Dr H, that given what you now know about the discrepancies between what the Father – what Mr Hossain told you and the history he gave to you, compared with the history that’s in his medical records, that there is a need for caution in assessing the Father’s current mental health condition and future mental health condition? Yes. I agree with that.
The doctor was asked whether if it was the case that the Father was not being fully honest with the doctor and was under reporting psychotic symptoms, whether the current medication that the Father was on would be sufficient to ameliorate those symptoms. The doctor stated that that was hard to know without knowing the true level of symptoms. In this context the doctor stated that his titration of medication is symptom based. He stated that he could not know whether the current medication was sufficient to ameliorate the symptoms if he did not know what the symptoms were; he would not know if he was under dosing the Father, nor would he know if he was overdosing him either unless the Father was being honest (in his reporting of symptoms).
The doctor stated that the range of Trinza goes from 175 mg to 525 mg. 175 mg was the lowest dosage. The doctor stated that unless the Father reported further symptoms to him, he would not have a reason to increase the dosage (from 175 mg).
In re-examination, the doctor stated that Zyprexa can be used to treat bipolar, psychosis, depression and an augmenting agent (adding that medication onto an antidepressant for treatment resistant depression).

Further, in relation to the above finding, the Court does not accept the Father’s evidence that he incorrectly reported to his previous treating medical practitioners that he was experiencing auditory hallucinations whereas he was merely experiencing flashbacks, and that he did not take medication prescribed for him prior to about November 2019. Such evidence given by the Father to the Court was likely motivated by his desire to minimise his mental health problems and to achieve a more favourable outcome in these parenting proceedings.
If the Court is incorrect as to its above findings, it nevertheless finds that the Father has experienced long-standing significant difficulties with his mental health, dating back to year 2000. In this context, the Court also refers to the above material set out above in (a)-(h) inclusive.
The symptomatology of the Father recorded in the reports and notes of the Father’s treating medical practitioners from 2010 to 2014 (again, see the ICL’s aide memoir), the Father’s admissions of experiencing auditory hallucinations in his Affidavit filed 21 March 2017 and in his statements to Q Counselling on or about 28 March 2017, in particular, are of significant concern to the Court. For example, the history taken by Dr AA, psychiatrist, on or about 10 August 2013 , that the Father was, “Engaged in self harm i.e. cutting self especially 2008. He often has suicidal ideas” is of concern.
Again, the Father gave evidence to the Court that he never took prescribed medication prior to about November 2019 despite informing doctors that he was taking such medication. Assuming the Court’s above finding that this evidence of the Father should not be accepted is incorrect, it is of significant concern to the Court that the Father’s past treating medical practitioners have been treating the Father (in particular, in relation to prescribed medication) on the basis that he has been taking such medication.
A further concern relates to the Father’s evidence to the Court that he has not previously experienced auditory hallucinations, which evidence, again, the Court does not accept. Nevertheless, this evidence raises a significant concern as to whether the Father, in particular since commencing depot injections in about November 2019, has been reliably informing his treating medical practitioners, in particular Dr H, as to the existence or otherwise of psychotic related symptoms such as auditory hallucinations.
Accordingly, the Court has a doubt as to the reliability of the evidence of the Father’s treating medical practitioners, in particular Dr H, relating to their mental state assessments and impressions of the Father, and relating to their apparent view that the Father is presently being adequately treated. The Court observes that Dr H’s consultations with the Father have not been frequent, occurring more recently in February 2020 and October 2020. The Court observes that Dr H himself, in oral evidence, confirmed the need for caution in assessing the Father’s current and future mental health condition.
In assessing risk of harm to the child in spending time with the Father, the Court also takes into account that the Father’s recent mental health treatment comprising depot injections only commenced in November 2019. In this context, the Court also takes into account that the Father’s mental health treatment between the years 2010 and 2014 lacked continuity, and that Dr H’s assessment of the Father between August 2018 and up to November 2019 indicated the Father had no mental health disorder.
In assessing risk of harm to the child in spending time with the Father, the Court also takes into account the Father’s lack of insight into his mental health problems. For example, the Father maintains that he takes the paliperidone medication for historical reasons and not because he is presently suffering from any mental health condition. In this context, the Court observes that the Father has not informed his extended family members (nor Ms G since 2015) of the extent of his mental health problems or mental health treatment since at least 2010.
In assessing risk of harm to the child in spending time with the Father, the Court also takes into account the child’s age-she is now only six years, she has not spent significant unsupervised time with the Father post separation, and she has not spent time with the Father face-to-face since November 2019. The family report writer, in this context, had stated that it was sensible, if contact between the child and the Father was to be re-established, that there be supervision. He stated that it was essential for there to be a gradual increase in contact between the child and the Father to rebuild their relationship. He did not recommend unsupervised time “straight off” which could be overwhelming for the child having not seen the Father for 18 months. And he agreed that supervision should initially be at a contact centre.
In assessing risk of harm to the child in spending time with the Father, the Court also takes into account the real risk that if the child was to spend unsupervised time with the Father (in particular, having regard to the timing of unsupervised time as proposed by the Father) the Mother may experience significant stress and anxiety which, when taking into account the Mother’s past experience of depression, and her concerns in relation to the Father’s mental health, may lead to the Mother’s parenting capacity for the child being adversely compromised.
In the above circumstances, it is important for the Court to proceed cautiously and conservatively when assessing risk of harm to the child in spending time with the Father.
Taking into account the above discussions under this need to protect primary consideration, the Court is of the view that presently there exists an unacceptable risk of harm posed to the child in spending unsupervised time with the Father. Such risk of harm posed to the child would be the risk of being neglected in the Father’s care should he experience adverse mental health symptomatology. The Court assesses that the magnitude of this risk of harm is significant, having regard to the above discussions under this need to protect primary consideration.
The above unacceptable risk of harm can be minimised by the Court making Orders in terms of the ICL’s Proposed Minute of Order, including:
(a)the child spending an initial period of supervised time through the professional supervisory body B Families, City C (see Stage 1 in the ICL’s Proposed Minute of Order), during which supervised time the Father’s behaviour with the child can be carefully observed and any adverse mental health symptomatology of the Father reported upon in a formal manner and thereafter reported to and acted upon by his treating mental health practitioners;
(b)the child then spending supervised time (see Stage 2 in the ICL’s Proposed Minute of Order) with the Father supervised by a member of his extended family or partner (and note the specific terms of proposed Order 2.2.3 in relation to the above supervisors);
(c)the child then spending a further period of supervised time (see Stage 3 in the ICL’s Proposed Minute of Order) with the Father;
(d)the child then ultimately spending time with the Father, unsupervised (see Stage 4 in the ICL’s Proposed Minute of Order) but only during the daytime;
(e)the child’s above time with the Father being conditional upon the Father’s compliance with the ICL’s proposed Order 5 relating to the Father being compliant with mental health treatment in various respects.
The terms of the ICL’s Proposed Minute of Order, relating to the child spending time with the Father, is for monthly visits, rather than fortnightly visits, unless the Father was to relocate his residence to City C from Sydney. The evidence before the Court indicates that there is a real risk that the Father may not be able to afford supervision fees, together with associated travel costs from Sydney to City C and return, if it occurs on a fortnightly basis, but that he will likely be able to afford such costs if the visits occur on a monthly basis (see the Court’s discussion below); accordingly, the Court proposes monthly visits with the Father unless he is able to relocate his residence to City C. The Court accepts the ICL’s submissions in this context.
The Court does not propose that the child ultimately spend overnight time with the Father; again, the ICL’s Proposed Minute of Order, specifically proposed Order 2, provides ultimately that the child spend unsupervised daytime time with the Father. Such daytime time will act as a protective factor in relation to the child spending unsupervised time with the Father in light of his mental health problems, including his lack of insight into such problems.
In this context, the Court accepts the submissions of the ICL. In particular, there is force to the submission of the ICL that there are too many uncertainties in relation to this issue of possible overnight time between the child and the Father: will the child’s time with the Father proceed well; will the child’s former relationship with the Father be re-established adequately; will the Father’s mental health remain stable; will the Mother be able to cope with the child’s time with the Father, including unsupervised daytime time; and will the Father relocate his residence to City C? The evidence before the Court does not enable the Court to predict the outcome of these issues.
The Father contends that he has not experienced significant mental health symptomatology since 2014. The Court does not accept such contention; the Court refers, for example, to the Father’s statements to Q Counselling in 2017.
The Father points to his partner and extended family members not having observed any such symptomatology; there is force to the ICL’s submissions that the Court would place no significant weight upon the evidence of such persons. The ICL had submitted that it is likely that the Father had failed to relate to such persons the full extent of his previous mental health history; the Father’s extended family members and partner had minimal knowledge about the Father’s mental health symptomatology historically and therefore that they did not know what to look for in the Father; and the Father’s extended family members were probably seeing the Father regularly between 2010 and 2014, during which time the Father was exhibiting significant mental health symptomatology to his treating medical practitioners, yet they were unaware of such symptomatology. Again, the Court accepts such submissions of the ICL.
As to the Mother’s submissions that the ICL’s proposed Order 2.4, relating to proposed ultimate Stage 4 unsupervised daytime time, should not be ordered and that supervision should continue on a final basis, the Court is of the view that there is a significant prospect that by the beginning of the ICL’s proposed Stage 4, following a period of about 12 months of supervised time, the Father’s treating medical practitioners will have been able to appropriately and adequately treat the Father’s mental health issues including, if necessary, the adjustment of his medication. And again, the fact of the ICL’s proposed ultimate Stage 4 unsupervised time occurring during the daytime only, for a six-hour period on a Sunday with changeover in City C, and with such time being conditional upon the Father complying with his mental health treatment, should minimise the risk of the child being exposed to an unacceptable risk of harm at the instance of the Father.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The child enjoys positive relationships with the maternal grandparents.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties have taken such opportunities, albeit that the Mother has been making the major decisions for the child.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother has maintained the child satisfactorily in her care. The Father has not supported the child financially since her birth. The Father has been on a disability support pension since prior to the child’s birth.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to the meaningful relationship primary consideration discussed above; again, should the child spend time with the Father as proposed by ICL there is a reasonable prospect that the child’s meaningful relationship with the Father can be redeveloped and maintained. The Court also refers to the need to protect primary consideration discussed above relating to the Mother.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Again, the Mother lives in City C and the Father lives in Sydney at Suburb K.
The Mother and ICL propose, in relation to supervised time, that such time occur in City C through B Families. On the other hand, the Father proposes, in the alternative, if there is to be any supervised time between the child and the Father, that it occur at the contact centre in City L, because that contact centre’s fees are significantly less than B Families’s fees.
The child is quite young, having just turned six years. She attends school in City C.
The Court accepts the Mother’s evidence relating to her inability to afford the cost of travel with the child from City C to City L and return on a regular if not a monthly basis. In this context, the Court observes that the Father has not paid regular child support to the Mother post separation.
The Father contended that he could not afford to pay the B Families fees and related costs of travel and accommodation.
The Father’s disability pension is about $900 per fortnight. The Father does not work in paid employment, and he has the available time to travel to City C. He has access to a caravan to use and stay overnight in. He has extended family members and/or his partner who are willing to accompany him there.
The B Families fee for a four hour visit is about $500.
The Father stated, in his Affidavit filed 28 October 2020, that he estimated his round-trip petrol costs, between Suburb K and City C and return, would be at least $240. He estimated his food costs as being up to $50. He estimated accommodation costs at $120 per night.
The Court’s interim parenting Orders of 6 November 2019 had provided for the child to spend supervised time with the Father from after 15 November 2019 on a fortnightly basis at B Families in City C for a period not exceeding 4 hours per fortnight, with the Father to pay such costs.
The Father, in his text message to the Mother on 19 November 2019, stated in the message that if the Mother could pay the B Families fee, he was willing to pay for his travel costs, accommodation and food. Such travel costs, accommodation and food would thus amount to about $240, plus $120, plus $50, amounting to a total of about $410 per fortnight (the Court’s Orders of 6 November 2019 provided for fortnightly supervised time). Accordingly, the Father’s evidence was that he had the capacity to pay $410 per fortnight.
Because the Father has use of a caravan, the accommodation costs of $120 can be subtracted from $410 leaving $290. And the Court’s proposed parenting Orders, discussed above under the meaningful relationship primary consideration, will occur on a monthly basis unless the Father relocates his residence to City C when it shall occur fortnightly (see the ICL’s Proposed Minute of Order).
Accordingly, the Father can likely afford to pay the B Families fee of $500 per month, plus the incidental travel and food costs totalling $290, making in total $790 per month, taking into account that the Father’s disability pension is about $900 per fortnight or $1,800 per month.
The Court also takes into account the Father’s brother, Mr D, having provided the Father with financial assistance in the past and being willing to provide him with further financial assistance.
The Court also observes that with supervised time occurring in City C, the child is spared the burden of enduring travel between City C and City L return each month, and can probably attend her extracurricular activities in City C without foregoing them if travelling to City L.
The Court finds that the child would likely have difficulties coping with travel from City C to Town M and return on a weekend and that the Mother would have financial difficulties in meeting the costs of such car travel.
It is unlikely that the Father will imminently, or in the short term, relocate his residence to City C because his application to transfer his housing commission residence to City C from Sydney will take a considerable time to process; the Mother has been living in City C for some 5 years and the Father has not relocated his residence there to date; and the Court would assess that the prospects of the Father’s brother Mr D relocating his families’ residence to City C from Sydney in the near future, if at all, to be unlikely (the Court accepts the ICL’s submissions in this context).
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The Mother has such capacities.
As to the Father, subject to the Court’s discussion above under the need to protect primary consideration, relating to the Father’s mental health, the Father probably has such capacities.
The Father has not cared significantly for the child on an unsupervised basis since the child’s birth.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Subject to the Court’s discussion above under the need to protect primary consideration in relation to the Father, this is not a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Mother has demonstrated satisfactory responsibilities and attitudes towards the child.
In relation to the Father, the Court refers to its discussion above under the need to protect primary consideration. The Father’s supervised time with the child in the past has been positive.
The Father contended that the Mother had persistently failed to facilitate the child’s relationship with the Father. The Court does not accept this contention albeit there were instances where the Mother did not facilitate the child having FaceTime with the Father where she probably had opportunity to do so.

In this context, the Court accepts the contention of the Mother that the Mother’s unilateral relocation with the child to City C was significantly contributed to by the Father’s previous adverse behaviour exhibited towards the Mother, including threatening and harassing behaviour; the Court accepts the Mother’s evidence in this regard.
Further in this context, the Mother contends that the Father has had ample time to relocate his residence to City C that he has failed to do so. In this regard, the Court observes that the Father has failed to lodge, in a timely fashion, any application to the Department of Housing to transfer his Housing Commission residence to City C from Suburb K.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the additional consideration s60CC (3)(i).
(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court refers to its discussion above under the meaningful relationship primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant
The Father proposes that the Mother be restrained from travelling outside of the Commonwealth of Australia with the child. The Court is of the view that it will not be in the best interests of the child to make such proposed restraining Order. The Mother has significant ties with the child to Australia, including her employment, the extent of her residence (and that of the child) in City C to date, and the child’s schooling. There is no significant persuasive evidence before the Court that the Mother is likely to leave Australia with the child and not return in a timely fashion. The Mother’s proposed Orders relating to overseas travel will be in the best interests of the child.
SUMMARY
Evaluating the above discussed considerations under s 60CC of the Act, it will be in the best interests of the child to make the following Orders:
1.That all previous parenting orders in relation to the child, X, born in 2015, be discharged EXCEPT Orders 3(a) and 3(b) made by consent on 6 November 2019 being Final Orders for X to live with the Mother and for the Mother to have sole parental responsibility for X.
2.That, CONDITIONAL UPON the Father’s compliance with Order 5, X shall spend time with the Father as follows:
(a)Stage 1:
(i)On six occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)For up to 4 hours on each occasion;
(iii)Such time to be supervised by B Families, City C;
(iv)With the cost of supervision to be paid by the Father.
(b)Stage 2 (following completion of Stage 1):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 2 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Ms D, Ms E, Mr F or Ms G PROVIDED THAT each supervisor signs an undertaking in accordance with Annexure “A” prior to commencing supervision AND has accompanied the Father to spend time with X on at least two occasions during Stage 1;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.
(c)Stage 3 (following completion of Stage 2):
(i)On three occasions, being the first Sunday of each calendar month (or such other day agreed in writing between the parties);
(ii)From 10 am to 4 pm (or such times agreed in writing between the parties);
(iii)Such time to be supervised by Mr D, Ms E, Mr F or Ms G;
(iv)With supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father.
(d)Stage 4 (following completion of Stage 3):
(i)From 10 am to 4 pm on the first Sunday of each calendar month (or such other day/time as agreed in writing between the parties);
(ii)On the first six occasions, supervised changeovers to take place at B Families, City C, and the cost of changeovers to be paid by the Father;
(iii)Thereafter, changeovers to take place at a location agree in writing between the parties and failing agreement at City C, McDonalds.
(e)At such other times as agreed in writing between the parties.
3.That the parties facilitate FaceTime communication between X and the Father on the third Sunday of each calendar month (or such other day agreed between the parties).
4.In the event that the Father relocates his residence to City C then X’s time with him in accordance with Order 2 will occur on each alternate Sunday rather than monthly.
5.That X’s time with the Father in accordance with Order 2 is CONDITIONAL UPON the Father’s compliance with the following Orders:
(a)The Father is to continue treatment with Dr H, psychiatrist, for so long as Dr H deems appropriate.
(b)The Father is to comply with all recommendations made by Dr H in relation to his treatment, including but not limited to taking prescribed medication including depot injections.
(c)The Father it to provide an irrevocable written authority to Dr H within 7 days of the date of these Orders authorising Dr H to:
(i)Provide information to the Mother (if requested by her) in relation to the Father’s mental state; treatment plan and compliance with treatment;
(ii)Notify the Mother immediately in the event that the Father fails to comply with any aspect of his treatment plan, including attendance at review appointments with Dr H and adherence to prescribed medication including depot injections;
(iii)Notify the Mother immediately in the event that Dr H has any concerns in relation to the Father’s mental state;
(iv)Notify the Mother immediately in the event that Dr H ceases treatment of the Father;
(v)Notify the Mother immediately in the event that Dr H refers the Father to a different psychiatrist, including the name of the new psychiatrist.
(d)The Father is to provide a copy of the authority referred to in Order 5.3 to the Mother’s solicitor and the Independent Children’s Lawyer within 7 days of the date of these Orders.
(e)The Father is to arrange for each of the supervisors referred to in Order 2.2.3 and 2.3.3 to attend an appointment with Dr H for the purposes of receiving information from Dr H as to the Father’s mental illness; his treatment plan and the symptoms to be aware of when supervising his time with X, prior to commencing supervision.
6.Leave is granted to the Independent Children’s Lawyer:
(a)To provide Dr H with a sealed copy of these Orders, and
(b)To provide Mr D, Ms E, Mr F and Ms G with a sealed copy of these Orders, together with a copy of Dr J’s reports dated 30 September 2017 and 31 October 2017, and Dr H’s reports dated 12 February 2020 and 3 October 2020.
7.In the event that Dr H refers the Father to a different psychiatrist, Orders 5.1 – 5.4 apply in relation to the new psychiatrist and the Mother has leave to provide a sealed copy of these Orders to the new psychiatrist.
8.In the event that the Father fails to spend time with X in accordance with Order 2 on three or more consecutive occasions, Order 2 is suspended, unless the Father provides the Mother with a medical certificate indicating he has been unable to spend time with X due to illness.
9.That each party notify the other as soon as practicable in the event that X is hospitalised or suffers a significant illness or injury while in that party’s care.
10.That pursuant to s 65Y of the Family Law Act 1975 (Cth) the Mother be permitted to travel outside the Commonwealth of Australia with the child from time to time.
11.That pursuant to s 11 of the Australian Passports Act 2005 (Cth) the Mother be at liberty to apply for a passport and/or renewal of passport for the child without the consent of the Father being obtained.

I certify that the preceding three hundred and sixty-six (366) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 15 July 2021

[2021] FCCA 1606

15 July 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Costs

Damages

Duty of Care

Natural Justice

Procedural Fairness

File number(s):	PAC 1322 of 2016
Judgment of:	JUDGE NEWBRUN
Date of judgment:	15 July 2021
Catchwords:	FAMILY LAW – parenting – best interests of child – orders made
Legislation:	Family Law Act 1975 (Cth), ss 60B, 60CC, 60CA, 65Y Australian Passports Act 2005 (Cth), s 11
Cases cited:	Banks & Banks [2015] FamCAFC 36
Number of paragraphs:	366
Date of last submission/s:	30 March 2021
Date of hearing:	5 and 6 November 2019 1, 2 and 3 February 2021, 30 March 2021
Place:	Parramatta
Solicitor for the Applicant:	Mr Brown
Counsel for the Respondent:	Ms Dart
Counsel for the Independent Children's Lawyer:	Ms Shea

Table of Corrections
5 August 2021	Annexure A inserted after Orders

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	15 JULY 2021