Japik & Itamar
[2024] FedCFamC1F 199
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Japik & Itamar [2024] FedCFamC1F 199
File number(s): SYC 1120 of 2021 Judgment of: ALTOBELLI J Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother has significant mental health issues – Where the primary issue is whether her time with the child should be supervised temporarily or on an ongoing basis – Where there is a risk of relapse into mental health difficulties – Order made for ongoing supervision. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 18 March 2024 Place: Sydney Counsel for the Applicant: Ms Shea Solicitor for the Applicant: Dorter Family Lawyers and Mediators The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Clayhills Escobar Solicitors ORDERS
SYC 1120 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ITAMAR
Applicant
AND: MR JAPIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS THAT:
1.The Respondent mother’s Response to Final Orders filed 18 August 2021 is dismissed for multiple failures to comply with the directions of this Court.
Definitions
2.The following definitions apply in these orders:
(a)Act means the Family Law Act 1975 (Cth);
(b)Child or X means X, male, born 2017;
(c)Father means the Applicant father, Mr Japik, born 1971;
(d)Mother means the Respondent mother, Ms Itamar, born 1988;
(e)Rules means the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
(f)Parties means the Father and the Mother.
(g)Party means either the Father or the Mother.
Parental responsibility
3.The Father have sole parental responsibility for X.
4.Prior to making any decision as to the long-term care, welfare and development of X:
(a)The Father shall notify the Mother in writing via email 14 days prior to making such decision;
(b)The Mother shall provide her views as to the issue to be decided within seven days of the receipt of this information; and
(c)The Father shall consider the Mother’s views when making the decision.
Care arrangements
5.X shall live with the Father.
6.X shall spend time with the Mother, as agreed between the parties in writing and failing agreement, on a supervised basis for up to two hours on the first Saturday of each month, as follows:
(a)The time is to be supervised by a supervisor agreed between the Mother and the Father in writing, and provided the supervisor signs an undertaking as follows:
1.I accept the responsibility to supervise the child, [X], born […] 2017 ([X]) spending time with the Mother, [MS ITAMAR] (Mother) in accordance with Family Court Orders (Supervised Time), subject to my availability.
2.I will be present at all times during the period of the Supervised Time.
3.I will put the interests of [X] ahead of the interests of the parent.
4.I will keep a record of each session of Supervised Time including:
a.The date and times each session began;
b.Brief notes about the activities observed;
c.Any concerns I had about the session; and
d.My observations of whether [X] enjoyed the time.
5.I will ensure to the best of my ability that the child is protected from risk at any contact occasion in which I am supervising.
6.I will not speak to either party other than for the purposes of facilitating changeover and to do what is necessary to protect the child if there are risks identified.
7.In the event I observe any inappropriate behaviour by the Mother during Supervised Time, I will remove [X] from the situation immediately and will contact the Father, [MR JAPIK] to arrange for [X] to be returned to his care.
8.I will contact 000 in the event of an emergency.
9.I will contact the Father to provide him with an update of and after each session.
10.I will provide my contact number to the Father and agree to communication with the Father in relation to the supervised contact session.
11.I understand that I can be held in contempt of Court if I do not faithfully perform the responsibility to supervise the time as set forth herein.
(b)The time and location of each supervised visit is to be as agreed between the Parties and the supervisor;
(c)In the event the Parties do not agree to a supervisor, then time is to be supervised by a contact centre (including any privately funded contact service) nominated by the Father in writing, and for the purpose of this order:
(i)both Parties do all acts and things to complete any intake process(es);
(ii)both Parties equally share the costs of supervision;
(iii)each of the Parties shall follow the recommendations of the contact service;
(iv)each of the Parties shall sign all necessary consents and/or authorities to enable either Party to be contacted in the event the contact centre has any concerns regarding the supervised time.
AND IT IS NOTED THAT B Contact Centre has proposed three months of supervised time commencing April 2024 and C Contact Centre has offered six sessions of supervised time per year.
7.In the event the Mother does not present herself for the supervised time sessions in accordance with Order 6 above, for not less than two consecutive sessions without 48 hours prior notice to the Father and contact centre, then Order 6 shall be suspended, unless otherwise agreed in writing between the Parties AND FOR ABUNDANT CLARITY it is not sufficient notice for the purposes of this order, if the Mother only provides notice to either the Father or the contact centre.
Changeover
8.Changeovers shall occur as agreed between the Parties in writing and failing agreement at the contact centre (if a contact centre is used), or at D Shopping Centre playground (if a private supervisor is used).
9.For the purposes of changeover, both Parties shall not unnecessarily come into the physical proximity of the other.
Communication
10.Each Party be at liberty to communicate with X by telephone or other means of electronic communication when X is with the other Party and in relation to such communication, if a request is made by the Party who does not have X in their care, the Party with X in their care will facilitate such communication within 24 hours if possible:
(a)when X is with the Father, the Father shall facilitate the telephone call from X to the Mother and otherwise on request of X, and shall send the Mother an SMS text message prior to the telephone call;
(b)when X is with the Mother, the Mother shall facilitate the telephone call from X to the Father and otherwise on request of X;
(c)each Party shall ensure that X is able to freely access a telephone and call the other Party at any time requested by X and shall allow X to speak to the other Party in privacy and without distraction; and
(d)the length of each call shall be for an age-appropriate period.
Communication Between the Parties
11.Unless otherwise agreed in writing as between the Parties, each Party communicate with the other about matters relevant to X, via email, or SMS text message in an emergency, and such communication is to be limited to the Parties consulting one another in a respectful manner:
(a)to discuss the care, welfare, and development of X and/or parenting arrangements; and/or
(b)to discuss any aspect of implementing these orders.
Telephone Number and Address
12.Each Party notify the other within 14 days prior to any change of residential address and within 24 hours of any change to landline, mobile telephone numbers, and email address.
X’s Medical and Schooling Information
13.This order be authority to X’s treating medical practitioners, from time to time, to provide each Party with copies of medical reports and information as may be requested by either Party from time to time in relation to X.
14.The Father shall provide the Mother with the details of any General Practitioner (“GP”) that X attends, and shall notify the Mother of any change to this GP.
15.Each Party shall provide such consents and authorities as may be required by any school attended by X to enable both Parties to receive all information and documents about X’s progress, school newsletters, school notices, school reports, and school photographs.
16.The Father is to notify the Mother if there is any change to X’s school enrolment.
Restraints
17.Each Party be restrained from:
(a)Making any critical, disparaging, denigrating, and/or derogatory remarks about the other party or any member of the other party’s family, including any partner of the other Party, to X or in the presence or hearing of X, with such order to include verbal, written or electronic means, including email and text message.
(b)Allowing any other person or persons to make any critical, disparaging or derogatory remarks about the other Party or any member of the other Party’s family, including any partner of the other Party to X or in the presence or hearing of X, with such order to include verbal, written or electronic means, including email or text message;
(c)Physically disciplining X, or from smacking, hitting, pinching or pushing X for any reason; and
(d)Making any threat to X or from otherwise saying or doing anything in the hearing or presence of X which X might find intimidating or threatening.
Family Law Watchlist
18.Subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act1975, Ms Itamar, born 1988, their servants and/or agents be, and are, hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X, male, born 2017 from the Commonwealth of Australia until the child is 18 years of age.
19.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watchlist for the said period, until the Court orders its removal, or with consent of all Parties.
Passports and International travel
20.The child X, male, born 2017 is permitted to travel internationally as provided by section 11(1)(b) of the Australian Passports Act 2005 and for this purpose, the Father is permitted to apply for the issue of an Australian passport to the child X, male, born 2017 under the provisions of section 11 (4)(b) of the Australian Passports Act 2005.
Section 121 of the Act
21.The Parties have leave to provide a copy of these orders to any government authority, school, or health practitioner, for the purposes of implementing these orders.
Future proceedings
22.In the event that this matter is relisted before the Court for the purposes of interpreting, implementing, enforcing, or varying the orders, the matter should first be listed before Justice Altobelli if he is reasonably available, and subject to any application that a Party might make for recusal.
Costs of the Independent Children’s Lawyer
23.The Independent Children’s Lawyer’s application for costs is dismissed.
THE COURT NOTES THAT:
A.Pursuant to section 62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs, and services available, is set out in the Fact Sheet attached hereto.
B.Pursuant to section 65DA(2) of the Act, the particulars of the obligations in these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
C.In the event that the Mother seeks a variation of these orders, the Court notes that her mental health was the principal reason for requiring her time with X to be supervised. If the Mother’s mental health improves, it is a relevant consideration for the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Japik & Itamar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about X (“X”), who was born in 2017. X is six years old. His father is the applicant (“the father”) and his mother the respondent (“the mother”). X is represented by an experienced Independent Children’s Lawyer. The case is about the conditions under which X should be spending time with the mother. There are clear agreed facts in this case. X loves the mother. The mother loves X. The father wants X to have a relationship with the mother, but he wants it to be safe. The orders I have made today are about how X can have a relationship with the mother that is safe for him.
The orders sought by the father and the Independent Children’s Lawyer became Exhibit A7. The proposed differences in the orders were contained in a separate document in which the mother had indicated the changes that she sought. For example, there was no issue that X live with the father, who was to have sole parental responsibility.
The father agreed to a number of changes that the mother sought to Exhibit A7. For example, in Order 2, that he notify the mother in writing by email before decisions are made and take her views into consideration. He agreed that, for the purposes of Order 10, he would, in effect, not unnecessarily come into the physical proximity of the mother. He agreed, for the purposes of Order 11, that when X is to speak with the mother by telephone, he would send her an SMS so that she would know in advance. He agreed in Order 9 that text messages between him and the mother would only be in an emergency. In Order 11, he agreed to provide the mother with GP details about X and notify her of any change. In Order 12, he agreed that he would notify the mother of any change in X’s schooling.
What this meant for the Court was that there were only a few decisions that it had to make. These decisions are very important to the mother and to X. For example, in Order 4, the father was proposing an ongoing supervised contact order for the mother on the first Saturday of each month. The mother agreed to this supervision but only for the first three months, not on an ongoing basis. Another issue is about who should pay the cost of any privately funded supervision in the event that they could not agree to a non-professional supervisor. The mother proposed that the father pay, and the father proposed that they each share the cost. The father proposed Orders 16, 17 and 18, which would, in effect, stop the mother from taking X overseas but would allow him to do so. The mother opposes this.
THE EVIDENCE
The Court had the following evidence in the father’s case:
(1)He pressed the orders in his Second Further Amended Initiating Application filed 4 March 2024;
(2)He relied on his affidavit filed 9 February 2024; and
(3)A number of documents were tendered from the tender bundles, and marked as Exhibits A1–A8.
Most of the tendered documents are medical records that have been produced on subpoena relating to the mother’s mental health admissions. In addition, I had extracts from the report of the Single Joint Expert, Dr E dated 16 May 2023.
The father was represented by solicitor and counsel. The Independent Children’s Lawyer appeared. The mother appeared on her own. The last affidavit filed by the mother was on 18 August 2021, and her last response document is dated 6 June 2022. Whilst the mother is representing herself today, albeit with the assistance of an interpreter, she has previously been represented by firms of lawyers, but each has ceased to act on her behalf. As a formality, I dismiss her Response to Final Orders filed 18 August 2021 on the basis of multiple failures to comply with directions of this Court.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with 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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a 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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
CHRONOLOGY
I will also incorporate here a very useful short chronology of events found in the Independent Children Lawyer’s Case Outline Document provided to me this morning and dated 15 April 2024:
Date Event 1975 Father born 1988 Mother born 2014 Parties meet and commence cohabitation later in the year 2015 Parties marry and months later move to Australia 2017 Child, X born Mid-2018 Mother admitted to hospital psychiatric department Late 2018 Father alleges mother moved out of moving vehicle with the child, who was not in a proper child restraint. Late 2018 Mother is admitted to hospital psychiatric department Late 2018 Mother attends father’s residence and brakes glass panel in door. She is charged with breach AVO and other offences. Late 2018 Diagnosis of mother from hospital of “Emotional unstable personality disorder […].” Early 2019 Final AVO is issued against the mother for the protection of the father and the child. Mid-2020 Mother attends Dr F, diagnosed with mental health disorder Early 2021 Father alleges Mother in hysterics showering X fully clothed. Mother crying and howling. Early 2021 Police escort mother to hospital after father contends mother tried to take the child. 24 March 2021 Interim parenting orders made by consent – supervised contact to occur 10 December 2021 Orders amended to provide for the Mother’s friend Ms G to supervise contact. 28 December 2021 X spends time with mother supervised by Ms G. Ms G no longer wants to be involved. March 2022 Supervised contact commences with B Contact Centre. 13 September 2023 Orders made by Consent for unsupervised contact time to commence in October 2023. Late 2023 Mother is 1.5 hours late to collect X Late 2023 Mother is 1 hour late returning X to the father. Late 2023 Mother is 2 hours late to collect X Late 2023 Father advised that mother unwell and can’t collect X. She is hospitalised. Late 2023 to early 2024 Mother does not attend to collect X Early 2024 Mother in hospital for mental health issues (As per the original)
DISCUSSION
The issue for the Court is how to ensure that X, who seems to have a meaningful relationship with the mother, can continue to do so safely. The independent and the expert material that is in evidence indicates that the safety issue is the risk of relapse of the mother into mental health difficulties.
By way of summary of what is known about the mother’s mental health, the records commence as early as 2018 when there appear to have been two mental health admissions. The evidence then demonstrates a mental health admission in late 2023 and then quite a lengthy mental health admission in early 2024. An examination of the records indicate that the mother has suffered depression and psychotic episodes and has experienced suicidal ideations, which collectively have led to distorted thinking. To exacerbate the risk that arises from these issues, the mother has not disclosed the most recent two admissions to the Court, nor to the Independent Children’s Lawyer, nor to the father. Other than these admittedly quite detailed medical records, the mother provides no other evidence about her mental health.
I gave the mother the opportunity today to make submissions. In many ways, in the course of telling her story, she was giving evidence which might technically be considered evidence from the bar table. Nonetheless, it was important for her to tell her story to the Court. It is clear that the mother does not consider the mental health issues that she experiences, and which she acknowledges, to be a risk to X. It is clear to the Court that the mother has experienced not just mental health issues but difficulty navigating the legal system with inconsistent representation. The mother tells the Court that she is confident that within three months she will be able to so manage her mental health issues that the time with X need not be supervised.
The Court understands that the mother believes this in her heart and cannot understand how she would ever do anything that would harm X. The mother’s mental health history certainly starts from 2018. What we know is that she had a relapse in 2023, and then another relapse this year. There is little scope for the Court to be objectively reassured that the mother will not relapse again. Both the father and the Independent Children’s Lawyer say that in these unfortunate circumstances the only way that X can be protected from the risk of harm of a future mental health relapse of the mother is to make an order for permanent open-ended supervised time. The father and Independent Children’s Lawyer acknowledge, and the Court agrees, that this is an unusual order to make. From the Court’s perspective, the less desirable reasons for not making such a long-term order are mitigated by the fact that the father would prefer to use non-professional services, certainly for cost reasons but, ostensibly, also because of the benefit to X of having a family member or friend undertake the supervision.
The alternatives open to the Court are actually few on the evidence before it. There is a clear history of mental health difficulties experienced by the mother so that the risk of relapse is not a hypothetical one. Recognising that what the mother told me today was not evidence as such, there is nonetheless some basis for the Court’s concern about her lack of insight about her own mental health. This is a clear case where, notwithstanding the soon to be statutorily embodied rule in Rice & Asplund (1979) FLC 90-725, the arrangements for X to spend time with the mother should be reviewed, hopefully once her mental health stabilises and she enjoys an extended period of good health and frequent contact with X. That is something that X would very much like, and it is something that the father encourages wholeheartedly.
I say to the mother that in future years, when she gets better and is able to establish that, and provided she continues to spend regular time with X under the orders that I am about to make, she should consider returning to the Court, and if I am available, I will gladly hear her case. All of the evidence before me, however, clearly indicates why making an order in terms of that sought by the father is in X’s best interests in terms of ongoing supervision.
There are a number of other minor issues that I can deal with briefly. I do not have evidence in detail of the financial circumstances of both parties, and, importantly, I cannot consider imposing the cost of supervision solely on the father. The order will remain in this regard as set out in Exhibit A7. I cannot see any reasonable basis why Orders 16, 17 and 18 should not be made. X should be able to travel with the father as the opportunity arises, but also needs to be protected from unauthorised travel with other people.
I am satisfied, in the very sad circumstances of this case, that this is the best that can be done for X, at least for the time being.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 March 2024
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