Irwin & Xian
[2023] FedCFamC1F 491
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Irwin & Xian [2023] FedCFamC1F 491
File number(s): SYC 6872 of 2017 Judgment of: ALDRIDGE J Date of judgment: 14 June 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM HEARING – Where the mother has brought an urgent application for the suspension of the father’s time with the child – Where the father has cognitive difficulties – Where the father’s condition is deteriorating – Child’s safety – Where the father depends heavily on a carer for day to day support – Orders made for the father to spend supervised time with the child at his cost – Application adjourned. Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 14 June 2023 Place: Sydney Solicitor for the Applicant: Diamond Conway Lawyers The Respondent: The respondent’s sister made submissions on his behalf Solicitor for the Independent Children’s Lawyer: Russell Kennedy Lawyers ORDERS
SYC 6872 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS XIAN
Applicant
AND: MR IRWIN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 JUNE 2023
THE COURT ORDERS THAT:
1.Orders 4–10, under heading “Time Spent”, of the orders made by Stevenson J on 21 October 2020 are discharged.
2.X, born 2013, is to spend time with the father either from after school until 5.00 pm each Friday, or from 2.00 pm–5.00 pm each Saturday, or otherwise agreed in writing between the parties and the Independent Children’s Lawyer, with such time to be supervised by a professional supervision agency acceptable to both the mother and the Independent Children’s Lawyer.
3.The costs of the supervision are to be paid by the father.
4.The application is otherwise adjourned to 10.00 am on 14 July 2023.
5.Within seven days, the father execute the “NDIS Consent to Share Your Information” document annexed to these orders and marked “A”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an interim application for parenting orders pending a final hearing as to the appropriate parenting orders for X who was born in 2013.
Pursuant to orders made by Stevenson J on 21 October 2020, X lives with her mother and spends time with her father each alternate Wednesday from the conclusion of school until 6.00 pm and on each alternate weekend from the conclusion of school or otherwise on 3.00 pm on Friday until 6.00 pm on Sunday evening, and also provisioned for time on special days.
Order 9 made by Stevenson J requires the time the father spend with X take place in the presence of Ms B or Mr C, each of whom was to execute an undertaking as set out in the form of the order. Those orders have been in place since that time.
The reason for the need for supervision is that the father has cognitive difficulties which prevent him caring for X on his own, hence the need for supervision.
It is not in dispute that in early 2023 a fire occurred in the father’s apartment whilst X was in his care. According to the father, he was cooking and oil caught alight on the stove. He said he immediately took steps to place X out of harm’s way and that the unit was not badly damaged. However, he says himself that he was burnt badly and was subsequently was admitted to D Hospital. It was also not in dispute, because it was accepted by the father, that there was no supervisor present at the time.
This led, amongst other matters to which I will refer shortly, to the mother bringing an urgent application to the court for the suspension of time. That application was originally listed for hearing on 19 June 2023 before a senior judicial registrar, but the case management judge having regard to the issues being raised in the application, has arranged for an urgent hearing.
I appreciate that the father was only notified of this hearing yesterday and that ordinarily he should be given appropriate time to respond. However, he has been able to prepare in response a detailed affidavit which I have read.
He has not however appeared today. He filed a request to appear electronically which was granted, but he has not joined the video link, rather Ms B, his sister and one of the two prescribed supervisors has appeared on his behalf. The fact that the father is unable to attend court either electronically or in person is of itself a cause of concern.
It emerges from the evidence, to which I will turn to shortly, that the father depends heavily on carers for day to day support of himself and I infer from that and his absence today that he would not be able to either to come to court or attend via the video link unaided by a carer. That does not bode well for his care of the child.
Indeed it is implicit in his evidence and statements made by Ms B, that Ms B in effect undertakes the care of X when she is with the father. As can be expected from the form of the order, that those orders have cast a very onerous obligation on Ms B. However it appears from the evidence that at least on one occasion, and possibly others, but I do not need to determine those for the present, she has not been present all the time when X is spending time with the father.
Whilst that is understandable from her point of view given the onerous form of the undertaking, the purpose of the supervision and the undertaking was for the protection and safety of X because it is implicit in the orders that absent such supervision, the father would not be able to care for X on his own. The incident of earlier this year is a graphic example of what could have happened to the child in the absence of supervision. Fortunately, she was unharmed.
That event and the poor response of both the supervisors and the father to inform the mother promptly of what occurred, led the mother’s lawyers to issue a number of subpoenas. A number of those documents are from some time ago but two in particular are worth some attention.
First is an application for participation in the NDIS, which sets out in the form of the application a number of the father’s cognitive difficulties. He is described as having limited mobility. As to the assistance required it is said that he has speech difficulties and does not understand what he is being told. He has trouble understanding conversations, forgets information daily and appointments even if they are written down. His sister Ms B is in charge of his appointments and importantly, the care of his daughter.
That letter has attached to it a letter from Dr E, his long term general practitioner, who has treated the father. He describes the father’s mental state as confused and forgetful, losing his wallet, bank card, cash, mobile phone numerous times, forgetting where he has put them or dropping them in the street or not realising that they are missing. As a result his sister looks after all his financial affairs.
According to Dr E, the father regularly forgets the times that his sister asks him to meet her to travel to pick up the daughter, even when she has texted him or told him the night before. On numerous occasions, the sister has searched the streets for the father when he was meant to be with her picking up his daughter and he was unable to articulate where he was or what street he was on for her to pick him up.
According to Dr E, when he has driven to pick up his daughter, he cannot put his seatbelt on by himself, stares straight ahead, is incoherent and cannot understand instructions to put his seatbelt on, which has to be put on for him and cannot open the car door himself.
When he is with his daughter, he often requires having naps throughout the day, has extreme fatigue and cannot stand up for short periods of time.
That seems be to be a marked deterioration in his condition from earlier medial reports.
On his admission to D Hospital in early 2023, it was recorded that the father may need to move to assisted living in the future, will be vulnerable to delirium. He was given a mini-mental state examination test and achieved a significantly lower score than in late 2022.
More importantly, the observations made during that test show that the father had difficulties answering due to impaired speech, required multiple repetitions of questions and took a longer time to respond, and difficulty with word finding and comprehension.
There may well be force in Ms B’s comment that he was in a bad way when he attended the burns unit and things have improved. However it is easy enough to deduce from that evidence and the father’s failures to attend today in person or electronically that he himself is unable to care for X. The fact that he has excessive fatigue and spends a lot of time sleeping when she is with him casts doubt on the benefit of her spending extended time with him.
The evidence also satisfies me that the father’s time has not been supervised as it should have been and that when X is with her father, in effect the care is being provided by his sister.
The inability of the father himself to care for X and the fact that the supervision has not been provided at all times in accordance with the orders and undertakings, persuades me that it is appropriate at this stage to suspend the orders made by Stevenson J for X to spend time with the father. The primary concern is for her safety.
Nonetheless, given that X has spent regular time with her father seems to me that it is important that that can be continued as best it can. I am however, not satisfied that it should continue with the current supervision arrangement and the only realistic alternative is for a professional supervision service to become involved.
It has been suggested that the father’s carers may be able to be seen as appropriate supervisors, but there are two difficulties with that, at least for today’s purposes.
The first is that there is no evidence from the carers that they are in a position to provide supervision as well as care for X or that such a course is permitted by their employment and that they are prepared and/or able to do it. Further, before any such proposal could be accepted there would need to be affidavit evidence satisfactory to the court from the proposed supervisors with the appropriate undertaking.
That then leaves the prospect of professional supervision. The ICL has said that that could be arranged fairly quickly but is likely to be expensive, which I accept, particularly as in her experience, supervisors will charge a minimum of three hours and would wish to start the time at 2.00 pm. The mother is not in a position to pay for the supervision. I accept too, that the father may well not be in a position to do so either, but it seems to me that there is no other alternative.
The course that I propose to follow, is to stand this application over to 14 July 2023 at 10.00 am before Brasch J to give the father an opportunity to respond fully to the application and to deal with the issue of supervision. That will also enable the ICL to interview X which is planned for later this week. I had not considered whether or not the more appropriate course would be to simply make these orders and stand the matter over to the hearing in December 2023, but I think given the speed in which this application has come on, it is appropriate that there be a further chance for the father to respond, if he wishes to do so.
I discharge Orders 4–10 under the heading “Time Spent” of the orders made by Stevenson J on 21 October 2020 pending further order.
Pending further order, X is to spend time with the father either from after school until 5.00 pm each Friday or from 2.00 pm to 5.00 pm each Saturday, with such time to be supervised by a professional supervision agency, acceptable to both the ICL and the mother. The costs of that supervision are to be paid by the father.
The application is otherwise adjourned to 10.00 am on 14 July 2023.
The mother has also applied for an order that the father execute a NDIS information form as attached to the application.
It appears not to be disputed that at some stage before the hearing, the father will undergo a variety of cognitive assessments. The mother points out that her ability to understand, or for those assessments to have value, requires her to have appropriate information and that includes the information that the father has provided as part of his participation in the NDIS. That material of course cannot be the subject of a subpoena.
I accept that that information is of vital importance which should have been provided to the mother and will be relevant for the hearing in any event.
Therefore, I make a further order, that within seven days, the father execute the “NDIS Consent to Share Your Information” document annexed to the orders and marked “A”.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 19 June 2023
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