Ionescu & Sands
[2024] FedCFamC1F 467
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ionescu & Sands [2024] FedCFamC1F 467
File number(s): BRC 15580 of 2021 Judgment of: BAUMANN J Date of judgment: 15 July 2024 Catchwords: FAMILY LAW – PARENTING – Dispute as to the progression of the children’s time with the father and what if any conditions should apply to that time because of the father’s medical condition – Final orders made in the best interests of the children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 72 Date of last submission/s: 20 October 2023 Date of hearing: 27 & 28 September 2023 Place: Brisbane Counsel for the Applicant: Ms S Fraser Solicitor for the Applicant: Attwood Marshall Solicitor for the Respondent: Litigant in person ORDERS
BRC 15580 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IONESCU
Applicant
AND: MS SANDS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 JULY 2024
UPON THE UNDERTAKING OF THE FATHER TO:
A.Follow the medication regime recommended by his medical practitioners for his epilepsy;
B.Abstain from drinking alcohol for a twenty-four (24) hour prior to and during the time the children spend with him;
C.Manage and monitor his sleep while caring for the children;
D.Disclose all epileptic activity he experiences to his medical practitioners and the Driver Licencing Authority and adhere to Austroads and National Transport Commission (NTC) guidelines in relation to seizure activity;
E.Attend appointments with his treating neurologist as regularly as recommended by them;
F.Ensure the children know the safety plan they can follow if he were to have a seizure while in his care; and
G.Ensure the ongoing education of the children in relation to epilepsy.
THE COURT ORDERS ON A FINAL BASIS:
Parental responsibility
1.That the parents have equal shared parental responsibility with respect to the "major long-term issues" (as that expression is defined in Section 4 of the Family Law Act 1975 (Cth)) concerning the care, welfare and development of the children X born 2014 and Y born 2018 (collectively "the children").
2.That the father and mother shall be responsible for making decisions about day-to-day issues concerning the care, welfare and development of the children whilst the children are in their respective care.
Living arrangements
3.That the children live with the mother.
School term
4.That the children shall spend time with the father as follows, unless otherwise agreed in writing between the parents:
(a)In week one (1), from after school Thursday until 7.00pm Friday commencing 25 July 2024 and each alternate week thereafter;
(b)In week two (2), from after school Thursday until 5.00pm Sunday, commencing 1 August 2024 and each alternate week thereafter; and
(c)From the start of the 2025 school term one:
(i)In week one (1) from after school Thursday until 7.00pm Friday and each alternate week thereafter; and
(ii)In week two (2) from after school Thursday until before school Monday and if Monday is a public holiday or pupil free day, then until 9.00am Monday and each alternate week thereafter.
School holidays
5.That the children shall spend time with each parent during school holiday periods as follows unless otherwise agreed in writing by the parents:
(a)For one (1) week in January 2025 with the father, with him returning the children to the mother by at least the Wednesday before school recommences.
(b)For Term 1, 2 and 3 school holiday periods in 2025 and thereafter:
(i)For the first half of the school holiday period with the mother and the second half of the school holiday period with the father in odd numbered years; and
(ii)For the first half of the school holiday period with the father and the second half of the school holiday period with the mother in even numbered years.
(c)For the Christmas (December/January) school holiday period commencing December 2025, in a week about arrangement as follows, commencing after school on the last day of the school year and concluding on the day of resumption of school in the new school year:
(i)for the first week with the mother in odd numbered years; and
(ii)for the first week with the father in even numbered years.
6.That in the event the father is to to experience a tonic-clonic seizure, the children live with the mother for not less than one (1) week immediately subsequent to that seizure or longer if the father considers longer is necessary and that the parents arrange for the children to spend make up time with the father by agreement.
7.That for the purpose of Order 5, the following shall apply:
(a)The school holiday period shall be deemed to commence at the close of school on the day the school term finishes for the children and concludes at before school on the day of recommencement of the new school term for the children (including any public holidays or pupil free days);
(b)When a parent’s time falls in the first half of a school holidays the period shall commence from the last day of the school term for the children and concludes at 5.00 pm on the day calculated to be one half of the school holiday period; and
(c)When a parent’s time falls in the second half of a school holidays the period shall commence at 5.00 pm on the day calculated to be one half of the school holiday period and concludes on the day of recommencement of the new school term for the children.
8.That until the commencement of the 2025 school year, and unless otherwise agreed in writing between the parents, the overnight time the children shall spend with the father (including the school holiday time in January, 2025) shall occur with a responsible adult who is known to the children being present and available between 7.00pm and 8.00am the next day, each day.
Special occasions
9.That notwithstanding Orders 4 and 5, the children shall spend time with each parent on the following special occasions as agreed between the parents, however failing agreement as follows:
(a)On Mother’s Day and Father’s Day:
(i)the children shall spend time with the mother each Mother’s Day from 8.00am until 7.00pm that day, if not already in her care; and
(ii)the children shall spend time with the father each Father’s Day from 8.00am until 7.00pm that day, if not already in his care.
(b)On the Easter long weekend:
(i)the children shall spend time with the mother from 8.00 am on Good Friday until 8.00 am on Easter Sunday and with the father from 8.00 am on Easter Sunday until 7.00 pm on Easter Monday in even numbered years; and
(ii)the children shall spend time with the father from 8.00 am on Good Friday until 8.00 am on Easter Sunday and with the mother from 8.00 am on Easter Sunday until 7.00 pm on Easter Monday in odd numbered years.
(c)During the Christmas period:
(i)the children shall spend time with the father from 9.00 am on Christmas Eve until 11.00 am on Christmas Day in odd numbered years;
(ii)the children shall spend time with the mother from 11.00 am on Christmas Day until 5.00 pm on Boxing Day in odd numbered years;
(iii)the children shall spend time with the mother from 9.00 am on Christmas Eve until 11.00 am on Christmas Day in even numbered years; and
(iv)the children shall spend time with the father from 11.00 am on Christmas Day until 5.00 pm on Boxing Day in even numbered years.
Changeover
10.That changeovers occur as follows:
(a)In week 1, the father shall collect both children from school on the Thursday; and the mother shall collect the children from the father’s residence at the conclusion of time on Friday.
(b)In week 2, the father shall collect both children from school on the Thursday; and the mother shall collect the children from the father’s residence at the conclusion of time on Sunday. From the commencement of Term 1 2025, the father shall return the children to the school on Monday, and if the Monday is a public holiday or pupil free day, the mother shall collect the children from the father’s residence.
(c)If changeover is to occur on a non-school day, the father shall collect the children from the mother’s residence at the commencement of his time with the children and the mother shall collect the children from the father’s residence at the commencement of her time with the children.
(d)Changeover on Christmas Day shall occur at a venue agreed between the parents which is halfway between the place where the father and mother are each staying over the Christmas holiday period, unless otherwise agreed between the parents.
Father’s Licence to Drive
11.That the father is to inform the mother within twenty-four (24) hours of his driver’s licence being cancelled for any reason and that if the father does not have a current driver’s licence, then changeover shall occur in accordance with the preceding Order with the father to organise alternate transport to collect and deliver the children as otherwise ordered.
Mobile Phone
12.That each parent shall be punctual in attending changeovers and if there is to be a delay will send an SMS text message to the other parent.
Interstate Travel
13.That the parents shall be permitted to travel within Australia with the children during periods when the children are in that parent's care pursuant to these Orders, and any other periods as agreed in writing between the parents, provided that:
(a)If either parent intends to travel with the children beyond 200 kilometres from their ordinary residence whilst the children are in their care, then the travelling parent shall provide the other parent with at least seven (7) days' written notice of such intended travel and shall notify the other parent of the destination, period of travel and accommodation and contact details for the children.
(b)Neither parent is permitted to travel with the children for a period longer than the days that the children are in that parent's care until both children have turned ten (10) years of age, unless otherwise agreed in writing.
Passports
14.That the parents agree that within fourteen (14) days of a written request made by the other parent, both parents will do all acts and things and sign all documents necessary to apply for an Australian passport for the children or renew the Australian passports for the children, as the case may be, with the parents equally contributing to the cost of the passports.
15.That the mother retain possession of the children’s passports on her undertaking that:
(a)She will not use the children’s passports unless she has complied with these Orders and has the father’s consent in writing;
(b)She will not withhold the children’s passports from the father should he wish to travel with the children overseas as agreed in writing with the mother and shall make the children’s passports available to the father fourteen (14) days prior to the date of intended travel provided he has complied with these Orders; and
(c)The father is to return the children’s passports to the mother within seven (7) days of the children returning from any overseas travel with the father.
Exchange of Information
16.That all decisions relating to either of the children receiving treatment from a medical specialist are to be agreed between the parents and failing agreement the parents shall meet with the general practitioner for the relevant child to discuss the proposed treatment and shall follow the recommendations of the general practitioner.
17.That the parents shall:
(a)Keep the other parent informed as to their residential address, mobile telephone number and email address and will advise the other parent of any change to those details within twenty-four (24) hours of the change, except that in the case of a change to a residential address, that change is to be communicated at least 7 days prior to the change occurring.
(b)Keep the other parent informed of the names and contact details of the treating medical and dental practitioners for the children and by this Order the parents authorise those practitioners to provide both of them with information that they are lawfully able to provide about the children, at the requesting parent's cost.
(c)Inform the other parent as soon as reasonably practicable and no later than 24 hours after the onset of the condition, of any serious medical or dental condition, significant health issue or significant illness or injury suffered by the child and by this Order the parents authorise any treating medical or dental practitioner to release the medical information for the child to both parents, at the requesting parent's cost.
(d)By this Order the parents authorise the school (including before or after school care facility) or day care centre attended by the children to give both parents information about and discuss the progress and activities for the children and to supply both parents with information for the children including but not limited to copies of reports, photographs, school or meeting notices, certificates and awards obtained by the children, at the requesting parent's cost.
18.That the parents shall consult with each other regarding any changes to the extra-curricular and sporting activities of the children including responsibility for costs involved and make a genuine effort to reach agreement. Both parents shall take the children to any agreed extra-curricular activities and sporting activities during their time with the children.
19.That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent.
(b)Speak of the other parent respectfully.
(c)Not denigrate or insult the other parent or their family in the presence or hearing of the children and must use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the children; and
(d)Not discuss parenting arrangements or adult issues with or in front of the children and must use their best endeavours to ensure that the children are not unnecessarily exposed to parenting or adult issues.
20.That if a dispute arises between the parents about the children that they are unable to resolve themselves, the Father and Mother agree to participate in family dispute resolution with a Family Dispute Resolution Practitioner ("FDR Practitioner") and make a genuine effort to resolve the dispute with the FDR Practitioner to be agreed between the parents and the costs of the process being met equally by the parents. If the parents are unable to reach agreement regarding the appointment of a FDR Practitioner then:
(a)the parent raising the issue shall put forward a panel of 3 FDR Practitioners and will advise the other parent in writing as to the fees and availability of each practitioner.
(b)the other parent shall nominate a FDR Practitioner from the panel within 7 days of receipt of the panel.
(c)If the parent who is required to nominate a FDR Practitioner from the panel does not select a practitioner within the time period set out in sub paragraph (b), the parent raising the issue shall nominate the FDR Practitioner.
21.That the parents shall attend community-based family dispute resolution for the purpose of revising these orders within thirty (30) days of the child Y’s eighth birthday, in 2026.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ionescu & Sands has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The parents of two girls; X nearly aged 10 years and Y aged 6 years separated in September 2019 and have attempted to negotiate, in good faith, final parenting orders.
However, that inability has been largely due to the different perspectives each parent approaches the father’s longstanding epilepsy – which can cause unexpected seizures.
The mother has acknowledged the strong bond between the children and the father, but the risks of the father having a seizure when the children are with him, is a risk she regards as requiring restrictions on the father’s time with the children.
The father says his condition is well controlled and does not present as a current risk, sufficient to limit by time or conditions, the girls time with him.
This case involved balancing those different perceptions within the matrix of allowing the children to explore and further enjoy their relationship with their father from the stability of living primarily with the mother.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
As the reasons which follow identify, many issues were ultimately agreed to by the parents of the children. Some are demonstrated by Exhibit 2 – a document signed and presented to the Court on the second day of hearing, and importantly after the cross-examination of the father’s treating specialist, Dr B. Those issues resolved by consent relate to:
(a)Various undertakings given by the father;
(b)Parental responsibility;
(c)Changeover arrangements;
(d)Interstate travel obligations;
(e)Communication;
(f)Exchange of information;
(g)The availability of a mobile phone for the children; and
(h)How future disputes are to be resolved initially.
As a result, where it is not controversial that the children X and Y shall live with the mother (save for the father’s longer term equal time application), the issues requiring determination by the Court are broadly:
(a)What time the children should spend with the father during school term and school holidays;
(b)Overseas travel and passports;
(c)Time for “special occasions”; and
(d)Any conditions that should apply to the children spending time with the father.
At the conclusion of the evidence, Ms Fraser of Counsel for the father made succinct oral submissions. The mother was provided with a transcript of those submissions and given an opportunity, as she preferred, and being unrepresented to provide written submissions.
The mother’s written submissions were filed on 20 October 2023 and are 51 pages in length – a testimony to the mother’s persistent advocacy as occurs at times. Although the mother was informed that her submissions should be based on “the evidence” produced for the hearing, at times her submissions strayed into the realm of asserting “new evidence”. I have ignored those attempts to do so – noting that although the father had an opportunity to reply, by letter from his solicitors dated 26 October 2023, the father confirmed he did not intend to file any submissions in reply.
MATERIAL RELIED UPON
In the absence of any Independent Children’s Lawyer, the parties’ case outlines identified the following material relied upon:
(a)The father:
(i)Affidavit of the father filed 6 September 2023;
(ii)Affidavit of Mr C filed 6 September 2023
(iii)Affidavit of Ms D filed 6 September 2023; and
(iv)Affidavit of Dr B filed 5 September 2023.
(b)The mother:
(i)Affidavit of the mother filed 6 September 2023.
Dr E was appointed as a Court expert by Order made 15 March 2022, and conducted interviews and observations on 12 May 2022, resulting in a family report dated 1 July 2022, filed under cover of her affidavit filed 12 July 2022.
All deponents, including the Court expert, were the subject of cross-examination.
Additional to the material referred to in these Reasons, some documents were tendered and marked as Exhibits, including documents from Queensland Ambulance Service, F Hospital and G Hospital.
Before dealing discretely with the evidence of Dr B and the Court expert Dr E, I set out a brief contextual history.
CONTEXTUAL HISTORY
Statements of fact which follow should be regarded as findings of fact.
Credit issues do not loom large in this case. Both parents are decent people committed to the best interests of their children. Apart from the father’s epilepsy, these proceedings do not arise from issues such as mental illness, substance abuse, domestic violence, or abuse.
Clearly, the parents are both seeking to navigate a low trust environment – especially the mother’s understandable concerns that arise from whether the father is consistently candid about the frequency of his seizures and the potential effect on these young children.
The father is 42 years of age and is employed full-time as a manager in industry. The mother is 40 years of age and works in allied health.
In 2011, the parties met. The father says, and the mother concedes, the father informed her of his suffering epilepsy, before they commenced cohabitation in 2012. Shortly after cohabitation, Dr B became the father’s treating specialist, and has continued in that role to the present day.
In late 2012, the father suffered a seizure whilst driving – which he feels was a result of not taking his antiepileptic medication from July 2012, on the advice of his General Practitioner.
X was born in 2014, with Y being born in 2018.
Between 2013 and 2015, the father suffered some seizures, and his medication was adjusted by Dr B. In July 2016, whilst holidaying, the father suffered a seizure which the father says was triggered by excessive use of alcohol and lack of sleep. Further seizures occurred in the period 2016 to 2018 – particularly in January 2018, when in his loungeroom.
The parties separated (under the one roof) in September 2019 when the children were aged five years and 14 months respectively. When the father suffered two seizures on or around 1 December 2019 (in the presence of the mother and X), the mother took the view that to continue to live under the one roof was untenable.
Although the mother decided, unilaterally, to relocate in early 2020 to Brisbane from the then family home in Town H, the father did not significantly oppose the mother’s actions although it prompted the need for discussion as to future parenting arrangements. It is a feature of the father’s condition, as explained by Dr B, that when the father suffers a seizure, he is unable to hold a licence to drive a vehicle for 12 months. Clearly the mother’s move to Brisbane created some further tensions and logistical issues – somewhat alleviated by the father gaining his licence to drive in March 2020.
The parties negotiated a quite prescriptive parenting plan on 21 May 2020. The said parenting plan provided essentially that:
(a)At the time the plan was signed, the father continued to live in Town H, however subsequent to the plan, in mid-2020 the father moved to Brisbane;
(b)The parents have equal shared parental responsibility;
(c)Initially on a two-week cycle, the child Y would spend regular day time with the father as well as X, with X to have one overnight a fortnight;
(d)the children were to maintain a healthy diet and refrain from having refined sugar; and
(e)the arrangements were to be reviewed with a Family Dispute Resolution Practitioner within 30 days of Y turning three years of age in 2021.
Mediation was conducted in mid-2021, but the parents were unable to agree on how the children’s time with the father should increase, and any conditions associated with that increase (particularly as the father sought more overnight time to occur).
As a consequence of there being no agreement, the father commenced these proceedings in November 2021.
Since the commencement of these proceedings, the mother has maintained her concern about the risk to the children (at their age) if the father has a seizure when the children are in his care. This is clear from her Response filed 25 January 2022.
The arrangements for the children since the commencement of the proceedings have been essentially regulated by the following Court Orders, namely:
(a)the Orders made by consent by a Judicial Registrar on 15 March 2022 as follows:
Parenting Arrangements
7.Upon the Father’s Undertaking, provided without admission, to:
(a)Follow the medication regime recommended by his medical practitioners for his epilepsy;
(b)Abstain from drinking alcohol for a period of 24 hours prior to and during the children’s time with him;
(c)Ensure that he has had adequate sleep and is not sleep deprived before caring for the children;
(d)Disclose all epileptic activity he experiences to his medical practitioners and the Driver Licencing Authority.
8.Pending the release of the Family Report, the children live with the Mother and spend time with the Father in a two week cycle as follows:
(a)In week one, from 3:00pm Thursday until 7:00pm Thursday and 8:00am Friday until 7:00pm Friday; and
(b)In week two, from 8:00 am Saturday until 3:00pm Sunday.
9.That [Y’s] overnight time with the Father occur on the condition that the Father ensure a responsible adult, who is known to the Mother and the children, is available to care for [Y] if she wakes at night when she is spending time with him overnight, but [X’s] overnight time with the Father occur even when the Father is unable to ensure that a responsible adult is available. In the event that the Father cannot ensure a responsible adult is available, [Y] will spend from 7:00pm on Saturday night until 8:00am on Sunday with the Mother.
(b)the orders made on 16 March 2023, as follows:
AND UPON THE FATHER’S UNDERTAKING GIVEN TO THE COURT today that he will:
(i)Follow the medication regime recommended by his medical practitioners for his epilepsy.
(ii)Abstain from drinking alcohol for 24 hours prior to and during the time the children spend with him.
(iii)Manage and monitor his sleep while caring for the children.
(iv)Disclose all epileptic activity he experiences to his medical practitioners and the Driver Licencing Authority and adhere to Austroads and the National Transport Commission (NTC) guidelines in relation to seizure activity.
(v)Attend appointments with his treating neurologist as regularly as recommended by them.
(vi)Ensure the children know the safety plan they can follow if he were to have a seizure while in his care; and
(vii)Ensure the ongoing education of the children in relation to epilepsy.
BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER:
1.The children shall live with the Mother and spend time with the Father as follows, unless otherwise agreed in writing between the parents:
(a)In Week 1, from 3:00 pm Thursday until 7:00 pm Friday, commencing from Thursday 30 March 2023; and
(b)In Week 2, from 4:30 pm Friday until 5:00 pm on Sunday, commencing Friday 24 March 2023.
2.That the children’s overnight time with the Father occur on the condition that the Father ensure a responsible adult who is known to the Mother and the children is available to care for the children if they wake at night when spending time with the Father overnight.
3.In the event that the Father cannot ensure a responsible adult is available for any overnight time, then the children will spend from 7:00 pm that night until 8:00 am the following morning with the Mother, with the Mother to collect and return the children to the Father’s residence.
4.That in the mornings until 8:00 am the Father is to ensure that he is in the company of a responsible adult when caring for the children.
5.In the event the Father were to experience a tonic-clonic seizure, the children live with the Mother for not less than 1 week immediately subsequent to that seizure or longer if the Father considers longer is necessary and that the parents arrange for the children to spend make up time with the Father by agreement.
6.That changeovers occur as follows:
(a)In Week 1, the Father shall collect [Y] from the Mother’s residence at 2:30 pm and collect [X] from school on the Thursday and return the children to the Mother’s residence at the conclusion of time on Friday.
(b)In Week 2, the Mother shall deliver the children to the Father’s residence at the commencement of time on Friday and collect the children from the Father’s residence at the conclusion of time on Sunday.
(c)While the Father does not have a current driver’s licence, the Father shall organise alternate transport to collect and deliver the children in accordance with these Orders.
7.The parties ensure that the children have access to a mobile phone and know how to use the phone while in the care of each parent in case of an emergency.
Because the family report of Dr E identified some further possible investigations of the father’s condition, he submitted to a seven-day EEG in August 2022. Despite the father suffering two further seizures in March 2023 (which to be fair to the mother caused her to lose confidence in the father’s condition and the elevated risk to the children spending overnight time with the father), it was hoped that the updated report of Dr B in August 2023 might have gone some way in quelling the mother’s concerns and anxiety. It did not, thereby necessitating the two-day trial commencing on 27 September 2023.
The Court expresses its regret to the parties in the delay in providing these Reasons. I do note however that no party has sought to relist this matter or reopen the proceedings since final submissions were filed by the mother on 20 October 2023. I infer that, on the basis that Dr B gave evidence he would review the father’s ability to hold a driver’s licence because of the event in March 2023, nothing caused the father’s use of a driver licence to be cancelled.
EVIDENCE OF DR B
The evidence of the father’s treating specialist was critical to the determination in the narrowing areas of dispute. So much was accepted by Dr E. No adversarial evidence by a similarly qualified specialist was offered to the Court.
Dr B presented personally to the Court for cross-examination. He was an impressive witness and I have no concerns about accepting his evidence as set out in his report dated May 2022 which was an addendum to the report dated February 2022 and Reports of November 2022 and August 2022. The treating practitioner’s evidence was explored in cross-examination.
From this evidence I find and accept the following matters:
(a)Dr B is a specialist dealing with adult epilepsy and has been treating the father since 2012;
(b)He takes his obligations to certify a person suffering from epilepsy is fit to drive, extremely seriously – and his decision to do so particularly after the disclosed event of March 2023 – was no different;
(c)Although he accepts the father is not always a reliable historian, he was prepared to review the medical records tendered to the Court in respect of the March driving incident to assess whether the father’s continued licencing to drive should cease, for the mandatory 12-month period;
(d)His report dated November 2022 explained why he opined, after EEG monitoring, that the father’s epilepsy is “currently controlled” justifying a medical certificate permitting the father to be issued with a driver’s licence for 12 months from late 2022;
(e)Not for the first time, the report of November 2022 identified seizure “provoking factors” for the father as:
(i)sleep deprivation;
(ii)excess alcohol intake; and
(iii)irregular intake of antiseizure medications.
(f)Supervision of reliability of intake of medication by the father can be monitored by blood testing initially every three months and then, after 12 months, every six months;
(g)Significant sleep disruption remains a potential risk for seizure recurrence, even when on medication;
(h)Dr B in this report of May 2022, raised concerns about the father supervising the children in the bath or near a swimming pool, if he is assessed as unfit to drive. Furthermore, if there was a night when the father experienced disrupted sleep, then supervision overnight might need to be considered;
(i)The father’s condition is not “light sensitive” and usually the father recovers within five to 30 minutes after a seizure (unless he suffers physical injury), and with no ongoing effect;
(j)Since 2016, the father has been assessed as compliant with his medication and reports he has abstained from excessive alcohol use;
(k)The father gave evidence, which I accept, that he has not consumed alcohol for three years and sleeps better, which he says is also due to a healthy lifestyle, losing weight and doing regular exercise. He has available to him a prescribed low dose sedative;
(l)The condition the father suffers has no “cure” although remission over time can occur from middle age;
(m)Under cross-examination by the mother, who was understandably focussed on the car incident in March 2023, Dr B said that if a “crash” occurred he would have stopped the father from driving for 12 months – not three months. Of course, the father gave a version to the doctor of the incident (and to the Court), that the mother says is inconsistent with the Queensland Ambulance Service (“QAS”) report. I accept the father’s evidence;
(n)Dr B has not assessed the father as “deceptive”, but he accepted that reliable reporting from the patient is critical. As a general practice, if he forms a view that information given to him is not reliably recorded, he would require further testing as has occurred in the past; and
(o)Despite the acknowledged “triggers”, the seizure can occur at any time and is not more likely to occur at day or ay night.
I take into consideration this evidence of Dr B, which I refer to later in these Reasons.
FAMILY REPORT – DR E
The family report of Dr E is shaped by her opinion, as expressed at paragraph 7.31 of her report that “there is risk associated with the children’s health and emotional well-being, when they are in the care of their father”.
Although she qualified that opinion by indicating the risk is “not related to [Mr Ionescu’s] parenting but directly related to [Mr Ionescu’s] health and well-being. That is, his diagnosis if epilepsy as characterised by grand mal seizures. The risk is related to his ability to manage this illness consistently over time …”
At paragraph 7.57, Dr E opined that:
Many parents have serious health issues. Parents with health issues can continue to be a significant and positive impact on their children and enjoy long term healthy relationships with their children, on the condition that they consistently manage their illness appropriately. This management includes regularly engaging with appropriate health professionals, development of a management plan, using support services, and providing authentic and accurate information to health professionals and family members.
The recommendations in the report of Dr E included:
(a)the children not be given responsibility for independently attending to their father in the case where he has a seizure (paragraph 8.02);
(b)sole overnight parenting by the father not occur until the risk assessed by Dr B has been minimised or the children have reached an age where they can emotionally and intellectually fulfil responsibilities to assist their father (paragraph 8.03);
(c)if an adult stays overnight when the children are in the father’s care, the children could spend as much as four nights per fortnight and one week in holidays (paragraph 8.04);
(d)the father should engage with a clinical psychologist “to seek support for compliance to his voluntary changes in lifestyle” (paragraph 8.09) as well as continuing to attend upon Dr B as requested and complete further testing (which the father did);
(e)travel with the girls should be with another adult accompanying himself (paragraph 8.11); and
(f)regular additional short periods of time with the father should occur (paragraph 8.13) with both parents engaging with the children’s school and kindergarten (paragraph 8.14).
Overall, Dr E said the parents should make “every effort to minimise parental conflict and to develop positive and helpful communication”.
Noting that no updated report was obtained (or needed) where the critical issue related to the risk about which Dr E conceded she would accept the evidence of Dr B, the cross-examination of Dr E was in a narrow compass, from which some further opinions were expressed, inter alia:
(a)If the children have been spending three nights a fortnight, a reduction to two nights a fortnight is not supported unless the risk issues impact; and
(b)She does not oppose four nights a fortnight but is less concerned about the “number of nights” and more abut the mix of opportunities for the children to engage with the father with the children’s school and extra-curricular activities.
I accept the general thrust of Dr E’ evidence.
ISSUES THAT REQUIRE DETERMINATION
In the context of the expert evidence and the agreements reached in Exhibits 2 and the issues in dispute emailed to chambers on 9 October 2023 (marked Exhibit 6) and titled “minute of final order sought by Applicant father”, the mother provided extensive written submissions. It is not necessary for the Court to deal with every submission made by the mother. I have read and considered the entirety of the document, some of which is repetitive; seeks to adduce other evidence and frankly is not relevant to the issues in dispute that arose by the end of the evidence. I capture the essence of the mother’s submissions as follows:
(a)It has never been her intention to limit the father’s time with the girls, who she openly accepts love their father;
(b)She disagrees with the increasing time which would be detrimental to the children by “removing the children from my care” and change the routine of “their entire upbringing”. The children can maintain the “meaningful relationship” they already share with their father “without changing the status quo and disrupting their already well established routine”;
(c)Progressively increasing “holiday time” is a better option then increasing school term time;
(d)The children have “struggled to cope with the changes to be away from me”;
(e)She has “genuine concerns” for the children’s safety when they are in the father’s care “due to the unpredictable nature of seizures” and his intentionally misreporting his seizures to his specialist in order to obtain medical clearance to drive thereby, knowingly placing our children at risk of harm or worse fatality”;
(f)At paragraphs 42 to 45, the mother submits that the Court should find the father deliberately misreported his seizures, particularly in March 2023;
(g)At paragraphs 46 to 53, the mother submits that the evidence does not establish he is a “changed person”;
(h)The mother relies upon paragraph 173 of her affidavit, which was part of her cross-examination of the father, which the mother concedes was “unsuccessful”; and
(i)The impact on the children of witnessing the father having a seizure is profound.
The mother’s submissions from pages 19 to page 51 is an attempt to cover a number of orders sought by the father and opposition or amendments sought by the mother. I do not consider it necessary to deal with every contention – in fact, in my view, this couple would not be served by having overly prescriptive orders, which are only likely to encourage further conflict about the interpretation of orders.
Further, I do find that, on the whole of the evidence, the mother struggles to support at times an increase in the time the children spend with the father, not only because of the risks arising from the father’s epilepsy, but because she has formed the view that the routine she has created should not be disrupted at all.
This view is not consistent with the evidence of Dr E, and I believe developmentally, the children’s relationship with the father will be enriched by an increase in time, even though one effect of such an increase will be a slight reduction in time with the mother. The children’s expressed wishes and comfort with spending time with the father, do no not persuade me that they will be, as the mother suggests, disturbed by a change by spending more time with the father. I do accept the mother might struggle initially, as her role as primary carer (although it will move slightly to more shared care) has defined her since at least separation in 2019 – nearly five years ago.
The mother contends that until both children reach 10 years of age, the time the children spend with the father should be in the presence of another adult.
In this regard, I have considered the evidence of both the father’s brother Mr C and the father’s mother about their observations as “present” adults. A balance needs to be drawn between the risks as identified (if the father has a seizure) and the time and conditions imposed for these delightful girls to explore more opportunities to safely engage with their father.
The orders I propose to make do, in my assessment, create that balance – which basically continues to provide some protections (particularly initially for longer school holiday times) and requires the trigger for any future concern to be the father’s use of a motor vehicle. I do not accept the mother’s contention that the father deliberately misleads Dr B, so as to get his licence.
In that regard, the undertakings revealed in Exhibit 2 are fair and appropriate. Requiring the father to report a night of “disrupted sleep” (whatever that is meant to mean) “prior to or whilst caring for the children”, should not, on the evidence of itself, require the children to return to the mother. The mother conceded that her informing X that she should not “wake” the father if, when in the father’s care, she is frightened or the like, was not appropriate. It was likely to create an anxiety in X.
Similarly, in circumstances where I am satisfied the father is compliant with his medication, the need to report to the mother when he takes sedative medication, is overreach in my assessment.
At this point, I should record that I have, contrary to the mother’s submissions, formed the view that the father both has insight into his condition; the triggers that can cause a seizure and is taking the steps necessary to minimise the risk. The mother, perhaps understandably from her perspective, simply does not trust the father. They have not seen each other parent for five years. I accept that the mere fact that the children have suffered no harm on that the father’s family have, when staying with the father under Court Orders, reported nothing adverse is not a compete answer. However, the history is important in finding a balance in this difficult low trust parental relationship.
The mother, at paragraph 95 of her submissions, seeks a further order around the children receiving further education on the father’s epilepsy. I take that into consideration.
The mother, at paragraph 99 of her submissions, seeks an order that even if he has a licence to drive, the father shall not drive the children in a motor vehicle “at all times”. I regard this as overly prescriptive. I accept that the caution and guidelines adopted by Dr B are sufficient. If he certifies that the father can drive, then I am not satisfied that the children should not be permitted to be in the car.
Dr B expressed concerns about the children being near water. I see no to extend any restrictions to a bath – the children are at an age now where having a shower is more appropriate. I do not believe the father being restricted by having the children near a beach or swimming pool is practicable. Incidental contact with water is possible – if walking near a canal, a pool – even in the city.
Basically, the evidence does not establish that this father would even put his children at risk. Of course, with epilepsy, the onset of a seizure can be sudden and potentially create a danger to the father and others around him. This is, I accept, the basis for the mother’s concerns, however it is unlikely there is anything the Court can say or frankly, the father could do or agree to do, that will alleviate every fear the mother holds. The orders which I make are consistent with the Court’s balance of risk and benefit – and in an environment where the children now aged nearly 10 years and six years are developing an awareness not only of their father’s illness but also general self-protection capabilities. In that regard, access at all times to a mobile phone is a sensible agreement for these children in these circumstances.
FORM OF ORDERS
Where children are to live with the mother, I have decided that the children’s time with the father, on the conditions imposed (including the undertakings by the father that amount to orders), should initially increase to:
(a)week one – after school Thursday to 7.00pm Friday; and
(b)week two – after school Thursday to 5.00pm Sunday,
effective from Thursday, 25 July 2024, with attendance of a responsible adult overnight until the end of the 2024 school term four.
Thereafter an additional adult is not required for the term time, which shall increase from the start of the 2025 school year to:
(a)week one – after school Thursday to 7.00pm Friday; and
(b)week two – after school Thursday to before school Monday.
This will allow the father some opportunity to interact with the children’s school and, to some degree, the children’s extra-curricular activities and their peers whilst providing a structure in the home of the mother where every Thursday night the children will be with their father.
As to school holiday time, it is to commence for one week in January 2025, as agreed but so that the children are returned to the mother’s care at least by 5.00pm on the Wednesday before the new school term begins, so that the mother can prepare the children for the new school year. For the first week’s holiday in 2025, an additional responsible adult shall be present at night, but thereafter, I would discharge that condition – beginning the end of term one school holidays in 2025. Week about holidays from the end of term four 2025 school holidays is appropriate and is ordered.
Noting the consent orders (Exhibit 2) provide for interstate travel, the Court is invited to make orders for international travel. I accept the parents have agreed for the children to have passports, but consent to travel overseas under s 65Y of the Act is necessary, in the absence of consent.
At this time, and where there is no evidence of pending overseas travel, I elect not to make an order for overseas travel for these reasons:
(a)Even if travel was restricted to a period of no longer than five days, as the father proposes, the need to consider the location of travel is relevant. The father has not provided evidence of how his medical needs might be met if – and one can only hope this is not likely to occur – he had a seizure. Whilst the Court is comfortable, after the first week of holidays in January 2025, to remove the condition for an accompanying person for a holiday in Australia, I am not prepared to speculate on events that could occur in various overseas destinations; and
(b)The mother currently resists, yet the Court will order, holiday time in Australia. It is in the best interests of the children that any future overseas holidays, be only undertaken with the parents’ consent. I can easily envisage these children enjoying an overseas holiday, but on the current evidence I am not prepared to make an order for overseas holidays by either parent.
The orders about special occasions time, proposed by the father for Mother’s Day and Father’s Day; Easter and the Christmas Eve to Boxing Day period drew little opposition from the mother, save she wished to include the parents’ birthdays. This seems to me to be more about a need for a parent than a child. I see no need to make such an order – comforted by the fact that the parent’s birthday, I am sure, can be celebrated proximate to when the children are in that parent’s care.
PROGRESSION OF TIME HEREAFTER
If the mother can gain greater confidence in the father’s parenting capacity and the risks related to the father’s epilepsy (and particularly the children’s capacity to cope and/or support the father), then I can well envisage that time could increase.
However, on the evidence before the Court, and particularly the mother’s expressed concerns, only time and further child maturity and development is likely to have created a better negotiating platform between these parents. Setting by order a defined progression in the circumstances beyond five nights a fortnight from the commencement of 2025, with the history of this case is problematic.
The clearest catalyst for some renewed concerns is if the father, despite what I accept are his best intentions and endeavours, suffers a seizure; loses his licence – and even worse a distressing seizure was to occur in the presence of the children. Although continued education of the children is likely to assist, that may not be enough.
As a result of those concerns, I have decided to incorporate an order similar to that which the parties inserted in their parenting plan at clause 6.1, to review the orders in 2026 when Y is eight years of age. This is a guide – if circumstances of a material and significant nature arise, and s 65DAAA is overcome, then of course either parent can seek to enliven the Court’s jurisdiction.
For the reasons now published, I make the orders that appear at the commencement of these Reasons, which I find are in the best interests of X and Y at this time.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 July 2024
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