Jasari & Jasari
[2025] FedCFamC2F 78
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jasari & Jasari [2025] FedCFamC2F 78
File number: MLC 13351 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 30 January 2025 Catchwords: FAMILY LAW – PARENTING – application for final parenting orders – children aged 12 and 9 – mother diagnosed with a mental illness – where father critical and doubtful of mother’s ability to care for children – consideration of best interests of the children under section 60CC of the Family Law Act 1975 (Cth) – consideration of risk – final parenting orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 61D, 61DAA, 60CA and 60CC Division: Division 2 Family Law Number of paragraphs: 264 Date of last submissions: 16 August 2024 Date of hearing: 12, 13, 14, 15 and 16 August 2024 Place: Melbourne Counsel for the Applicant: Mr R Weil Solicitor for the Applicant: Williams Winter Counsel for the Respondent: Mr J Stanley Solicitor for the Respondent: PCL Lawyers ORDERS
MLC 13351 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JASARI
Applicant
AND: MR JASARI
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
30 JANUARY 2025
THE COURT ORDERS THAT:
Major long-term decision making
1.The parents have equal shared parental responsibility for the children of the marriage namely X born in 2012 and Y born in 2015 (‘the children’) in relation to all major long-term issues including:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s medical treatment; and
(d)the children’s residence.
2.For the purposes of order 1 herein, in the event that a decision is required in relation to any major long-term issue for the children or either of them:
(a)one parent (the requesting parent) must provide to the other parent (the responding parent) written notice of their views about any such issues;
(b)the responding parent is to then provide their views in writing on any such issue to the requesting parent within 14 days;
(c)the parents must consult with one another regarding any such issue and make a genuine effort to come to a joint decision about any such issue;
(d)subject to order 2(e) below, if the parents cannot reach agreement regarding such major long-term issues within 14 days of the responding parent providing their views in writing to the requesting parent, then the parties are to do all things to attend Family Dispute Resolution as soon as practicable with a registered Family Dispute Resolution Practitioner agreed in writing between the parents and in default of agreement, with a Family Dispute Resolution Practitioner, Ms B or Ms C, at the parents’ equal joint expense; and
(e)in the event the mother is unwell and/or uncontactable for reasons relating to her mental health and fails to respond to the father within 14 days of him providing written notice of his views regarding any major long-term decisions for the children to the mother, the father shall do all things to attempt to contact the mother in the first instance, and failing that, the mother’s parents, Mr D and Ms E (‘the maternal grandparents’) in the second instance to discuss the decision and make a genuine effort to resolve the issue by agreement with the mother, and if the parties are not able to agree, they will participate in Family Dispute Resolution as provided for in order 2(d) above.
3.In the event of a medical or dental emergency in relation to the children or either of them, which requires a decision to be made or a document to be signed in less than 12 hours:
(a)the parents must do all acts and things to contact the other parent as soon as practicable and attempt to reach a joint decision about any such urgent issue;
(b)in the event that the mother is unwell/uncontactable for reasons relating to her mental health or otherwise, whilst the children are in the father’s care, the father be permitted to make the urgent decision regarding the children’s urgent medical or dental treatment and/or sign any document as may be necessary and shall notify the mother of that decision as soon as practicable in writing and no later than 12 hours later; and
(c)in the event that the father is uncontactable whilst the children are in the mother’s care, the mother be permitted to make the urgent decision regarding the children’s urgent medical or dental treatment and/or sign any document as may be necessary and shall notify the father of that decision as soon as practicable in writing and no later than 12 hours later.
Live with/Spend time with
4.The children live with the father.
5.The children spend time with the mother as follows:
(a)for the first three months after these orders are made:
(i)in week 1: from the conclusion of school on Friday or 10:00 am if it is a non-school day until 7:00 pm on Sunday evening;
(ii)in week 2: from the conclusion of school (or 10:00 am if it is not a school day) until 7:30 pm on Wednesday.
(b)For three months thereafter:
(i)in week 1: from the conclusion of school on Friday or 10:00 am if it is a non-school day until the commencement of school on Monday or 9:00 am if it is not a school day;
(ii)in week 2: from the conclusion of school (or 10:00 am if it is not a school day) until 7:30 pm on Wednesday.
(c)For six months thereafter:
(i)in week 1: from the conclusion of school on Friday or 10:00 am if it is a non-school day until the commencement of school on Monday or 10:00 am if it is not a school day;
(ii)in week 2: from the conclusion of school on Wednesday or 10:00 am if it is not a school day until the commencement of school on Thursday or 10:00 am if it is not a school day.
(d)Thereafter:
(i)in week 1: from the conclusion of school on Friday or 10:00 am if it is a non-school day until the commencement of school on Monday or 10:00 am if it is not a school day;
(ii)in week 2: from the conclusion of school on Wednesday or 10:00 am if it is not a school day until the commencement of school on Friday or 10:00 am if it is not a school day.
(e)any other time as agreed between the parents.
6.For the purposes of the children’s time with the mother pursuant to order 5(a) – (c) above, the maternal grandparents, or either of them, shall supervise the mother’s time with the children.
7.The time arrangements in order 5 above will be suspended and the children will live with the parents during school holidays as follows:
(a)During term 1, 2 and 3 school holidays in any year, as agreed between the parents in writing, and failing agreement:
(i)with the mother for the first half and the father for the second half in 2025 and each alternate year thereafter; and
(ii)with the father for the first half and the mother for the second half in 2026 and each alternate year thereafter.
(b)During the long summer holidays, as agreed between the parents in writing and failing agreement as follows:
(i)in 2025/2026 and each alternate year thereafter:
A.with the mother during the first and second week of the school holidays (at least 14 consecutive nights);
B.with the father during the third and fourth week of the school holidays (at least 14 consecutive nights);
C.with the mother during the fifth week of the school holidays and each alternate week thereafter until school resumes; and
D.with the father during the sixth week of the school holidays and each alternate week thereafter until school resumes.
(ii)in 2026/27 and each alternate year thereafter:
A.with the father during the first and second week of the school holidays (at least 14 consecutive nights);
B.with the mother during the third and fourth week of the school holidays (at least 14 consecutive nights);
C.with the father during the fifth week of the school holidays and each alternate week thereafter until school resumes; and
D.with the mother during the sixth week of the school holidays and each alternate week thereafter until school resumes.
8.For the purposes of the children’s time with the mother pursuant to order 7 above, for 12 months from the date of these orders, the maternal grandparents, or either of them, shall supervise the mother’s time with the children.
Special occasions
9.The time the children spend with each parent pursuant to orders 4, 5 and 7 above are suspended on the following special occasions and the children spend time with the parents as agreed between them in writing and failing agreement, as follows:
(a)For Christmas:
(i)in 2025 and each alternate year thereafter:
A.with the mother from 10:30 am on Christmas Eve until 10:30 am on Christmas Day; and
B.with the father from 10:30 am on Christmas Day until 10:30 am on Boxing Day.
(ii)In 2026 and each alternate year thereafter:
A.With the father from 10:30 am on Christmas Eve until 10:30 am on Christmas Day; and
B.With the mother from 10:30 am on Christmas Day until 10:30 am on Boxing Day.
(b)For Easter:
(i)in 2025 and each alternate year thereafter, with the mother from the conclusion of school or 3:30 pm if it is not a school day on Easter Thursday until 5:00 pm on Easter Monday;
(ii)in 2026 and each alternate year thereafter, with the father from the conclusion of school or 3:30 pm if it is not a school day on Easter Thursday until 5:00 pm on Easter Monday.
(c)On each of the children’s birthdays, the children spend time with the non-resident parent:
(i)if the birthday falls on a school day, from the conclusion of school until 6:00 pm; and
(ii)if the birthday falls on a weekend or a non-school day, from 2:00 pm to 6:00 pm;
(d)On each of the parent’s respective birthdays, if the children are not otherwise in that parent’s care:
(i)if the birthday falls on a school day, from the conclusion of school until 6:00 pm; and
(ii)if the birthday falls on a weekend or a non-school day, from 2:00 pm to 6:00 pm.
(e)On Father’s Day each year, if the children are not otherwise in his care that day, from 10:00 am to 5:00 pm;
(f)On Mother’s Day each year, if the children are not otherwise in her care that day, from 10:00 am to 5:00 pm.
10.For the purposes of the children’s time with the mother pursuant to order 9 above, for 12 months from the date of these orders, the maternal grandparents, or either of them, shall supervise the mother’s time with the children.
Changeover
11.Unless otherwise agreed between the parents in writing, changeover is to occur as follows:
(a)on school days, changeover is to occur at the school the children ordinarily attend;
(b)if changeover is not to occur on a school day, it will take place:
(i)at the father’s house at the commencement of time with the mother; and
(ii)at the mother’s house at the commencement of time with the father.
Alternate carers
12.If necessary, both parents be at liberty to arrange for family, friends or a professional babysitter to care for the children in their absence (including delivering the children to or collecting the children from school, extracurricular activities, and changeovers as required by these orders).
Mother’s Mental Health Safety Plan
13.To support the mother in caring for the children, the mother shall attend appointments with her treating psychiatrist(s) as recommended by her treating psychiatrist(s) and comply with all treatment recommendations, including the taking of prescribed medication as directed.
14.The father be at liberty to reasonably contact the office of the mother’s treating psychiatrist to confirm only the mother’s attendances upon her treating psychiatrist and this order acts as authority for the mother’s psychiatrist to provide written confirmation of the mother’s attendance to the father.
15.The mother have leave to provide to:
(a)her treating psychiatrist(s) and/or psychologist(s);
(b)her parents;
(c)her family therapist;
(d)the children’s psychologist and treating medical practitioners, copies of:
(i)these orders;
(ii)Psychological evaluation by Dr F dated 21 February 2022;
(iii)Family Report by Dr F dated 23 February 2022;
(iv)Addendum Report of Dr F dated 29 October 2022;
(v)Updated Family Report by Dr F dated 27 December 2023;
(vi)Psychiatric Assessment by Dr G dated:
A.14 September 2022;
B.22 June 2023;
C.4 November 2023.
16.This order hereby acts as authority for the maternal grandparents to communicate directly with the mother’s current treating psychiatrist, Dr J or any other treating health professional of the mother.
17.In the event that the mother is unwell due to her mental ill health, and unable to care for the children, the mother is to:
(a)arrange a member of her immediate family (being the maternal grandparents or her siblings) to care for the children, and if she is unable to do so will arrange for the children to be returned to the father;
(b)contact the father either directly or through a family member or agent to notify him of the state of her health and the alternative arrangements that she has made for the care of the children during the time that they would otherwise be in her care; and
(c)if she has been admitted to hospital due to mental ill health, will ensure that the father is reasonably kept informed as to the duration of her hospital stay.
18.If the mother is hospitalised due to a deterioration in her mental health and she has returned the children to the father’s care under order 17(a) above, the time arrangements pursuant to these orders will resume forthwith upon her discharge from hospital.
19.If the mother has otherwise returned the children to the father’s care under order 17(a) above, the time arrangements pursuant to these orders will resume upon the mother advising the father in writing that she is well enough to care for the children.
Communication
20.The parties are to permit the children or either of them to use their iPads and/or mobile phone to reasonably contact the other parent whilst not in their care
Exchange of Information
21.The parents notify each other within 72 hours of any change of address, email or telephone number.
Medical
22.Each parent must advise the other forthwith, by email or text message, of:
(a)any illness, accident or injury suffered by either of the children;
(b)any medical or dental treatment provided to either of the children; and
(c)any medication either of the children is to take whilst the children are in the other parent’s care, including dosage.
23.That:
(a)the parents shall do all acts and things and sign all documents necessary to authorise each parent to obtain from, and be provided with, information by any medical, dental or other allied health practitioner upon which the children have attended; and
(b)these orders can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
24.That in the event that either child requires admission to hospital, each parent must be notified immediately, and both parents be at liberty to attend the hospital in accordance with the hospital’s visitation protocol.
Education and Extra-Curricular Activities
25.The parents do all acts and things to ensure that both parents are listed as enrolling parents and emergency contacts at the children’s schools, and other extra-curricular activities as agreed between the parents in writing.
26.That:
(a)the parents do all acts and things to ensure that the children’s schools, and other care providers are authorised to provide all information and documents about the children to both parents, including but not limited to the children’s progress, newsletters, reports, photographs and details of any school activities; and
(b)these orders can be regarded as authority for the children’s school(s) to provide relevant information about the children to either parent.
27.Either parent be at liberty to attend any significant (end of year, semester or term) school events (including parent-teacher interviews) and any extracurricular or sporting events.
28.Each parent be at liberty to enrol the children in extracurricular activities save that, in the event that such enrolment will interfere with the children’s time with the other parent, such enrolment is only to be made with the other parent’s consent in writing including via text message.
Injunctions
29.The parents be restrained from:
(a)abusing, insulting, belittling, rebuking or criticising each other to or in the presence or hearing of the children and from permitting any other person to do so;
(b)physically disciplining the children or allowing any other person to do so; and
(c)discussing these family law proceedings with the children or within the children’s presence or hearing including showing the children or leaving within the children’s sight any Court documents related to these proceedings.
Counselling for the children
30.The parents do all acts and things to ensure that the children attend upon an agreed therapist/psychologist at the parent’s shared expense to assist them in processing any distress and/or anxiety they may be experiencing as a result of the current proceedings and the breakdown of their parent’s relationship.
31.The parents shall follow all reasonable recommendations of the children’s agreed therapist/psychologist.
32.For the purposes of appointing a counsellor for the children under orders 30 and 31 above, within 7 days of these orders, the mother shall provide the father’s solicitor a list of 3 suitable family therapists and 3 counsellors and the father is to select his preferred family therapist and counsellor from those lists within 7 days of receiving the mother’s proposed nominations.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for final parenting orders regarding X born in 2012 (‘X’) and Y born in 2015 (‘Y’).
DOCUMENTS RELIED UPON BY THE PARTIES
The mother relies upon her affidavits sworn 6 May 2024, 20 May 2024 and 6 August 2024.
The mother also relies upon the affidavit of Mr D sworn 6 May 2024 and the affidavit of Dr J sworn 11 January 2024.
The father relies upon his trial affidavit sworn 13 May 2024 and his reply affidavit sworn 12 August 2024.
The court also has before it reports from the following:
(a)Dr G; and
(b)Dr F.
GENERAL OBSERVATIONS OF WITNESSES
In giving evidence, the mother was careful to answer questions honestly. She was cross-examined about things that she said and did whilst experiencing mental health episodes and things disclosed in a florid and heightened state over a number of days. She did not shy away from answering questions asked of her, honestly and openly. I found her to be a witness of truth and a person who acknowledged the difficulties that arise from her condition. To the extent that it was suggested by the father that the mother sought to minimise her condition or her illness, I do not accept that submission.
The father’s responses to questions in cross-examination were at times non-responsive. He did not make concessions when they were open to him. Having had the benefit of observing him in the witness box and considering the evidence as a whole, I accept that he has had difficulty coming to terms with the mother’s mental illness and that her behaviour when florid and in a mental health episode, would have been challenging and confronting. However, it is also apparent that the father does not fully appreciate the importance to the children of their relationship with the mother. His primary concern appears to be to limit the children’s exposure to the mother during an episode if her mental health deteriorates. This has resulted in the father at times limiting the children’s time with their mother, even where such time was required by an order of this court.
The maternal grandfather also gave evidence in support of the mother’s case. He gave his evidence in an open and transparent manner. He demonstrated a good understanding of the mother’s condition and a preparedness to act in a child focussed manner when supervising the children’s time with the mother.
For example, in his affidavit, Mr D said:[1]
79.I have observed [Ms Jasari] to be a very good mother. Whilst she suffers from episodes of poor mental health, her condition is managed by her treating psychiatrist, and she is supported by a strong family network. My family and I will happily assist [Ms Jasari] in transitioning to spending more time with her children upon the conclusion of these proceedings. …
80.I remain confident that [Ms Jasari] would benefit from spending more time with her children on a more consistent basis, and that a strong connection with their mother is in the children’s best interests. I am hopeful that this Honourable Court will provide the children with the opportunity to re-establish their close bond with their mother, and with their maternal extended family.
[1] Affidavit of Mr D affirmed and filed on 6 May 2024.
It was put to Mr D that he had prepared his evidence in support of the mother to assist her to ‘win her case’,[2] rather than by reference to what was ultimately in the best interests of the children. He rejected this proposition.[3]
[2] Court transcript at page 191, referring to Exhibit 29.
[3] Court transcript at page 191.
Mr D made appropriate concessions. For example, he conceded that after the interim orders were made in May 2024 for the children to spend time with the mother supervised by the paternal grandparents, there was one occasion where he left Y in the care of the mother without being present.[4] Mr D explained how this came about and confirmed that he was committed to ensuring that this did not happen in future.[5]
[4] Court transcript at page 197.
[5] Court transcript at page 198.
Mr D confirmed that if required to do so, he would be prepared to continue to assist with supervision going forward.[6]
[6] Court transcript at page 198.
Having had the benefit of observing Mr D and considering the evidence given by him, I find that he has given honest and truthful evidence. Whilst I accept that he is supportive of his daughter and wishes to help her repair her relationship with her children, I find that he is cognisant of the risk issues in this matter and has not, and would not, behave in a manner which would put the safety of the children at risk.
PARTIES’ PROPOSALS
The mother seeks orders which provide for the parties to have joint decision making for all long-term issues relating to the children. The mother’s proposed order in this regard provides a process for decision making which reflects the prospect that at the point at which a decision may need to be made, she may be unable to participate in the decision-making process due to her mental health. The mother’s proposed orders also provide a means by which the father may make a decision if the mother is unwell or uncontactable due to her mental ill health at any point in time.
The mother also proposes orders which would see the children live with the father and spend time with her on a gradually increasing basis commencing two nights per week and increasing ultimately to an equal shared care arrangement. The mother’s proposed order also provides that the children’s time with her initially continue to be supervised by her parents and then progress to unsupervised time.
The mother’s proposed orders also provide for the children to spend time with her during school holidays and on special occasions.
In addition, the mother proposes that the parenting orders permit either parent to arrange for alternate carers if required during their respective time and for changeover to occur at the father’s house at the commencement of the mother’s time and at the mother’s house at the conclusion of the mother’s time, when changeover does not otherwise occur at school.
Finally, the mother’s proposed orders contain provisions relating to a mental health safety plan to help manage her mental health when the children are in her care, including what is to happen if the mother, is unable to care for the children, or is hospitalised, due to a decline in her mental health.
The mother also seeks an order that neither party provide Y with a mobile phone without the agreement of the other parent. The mother’s proposed orders also address the exchange of information, dealing with medical issues relating to the children, extra-curricular activities, passports for the children and international travel. She also seeks the usual injunctions about non-denigration and not discussing the proceedings with the children and in addition an injunction on the parents from physically disciplining the children or allowing others to do so.
Finally, the mother seeks an order that the parents and the children attend reportable family therapy and that the parents arrange counselling for the children.
In his further amended response, the father sought orders that provide him with sole decision making in relation to major long-term issues. The father proposes a process by which such decisions are made by him after advising the mother of the proposed decision, giving her an opportunity to have input and considering that input in making the decision and then advising the mother of the decision made.
The father also sought orders that would require him to notify the mother of information about any health appointments and health providers for the children and a process for the mother to be kept informed of any information about the children’s health issues. The father also proposes orders requiring him to keep the mother informed of any parent teacher interviews and copies of school notices, reports and extracurricular activities.
In terms of time with their mother, in his further amended response, the father proposed that the children live with him and spend 2 to 5 hours per week with the mother to be professionally supervised or to be supervised by the maternal grandparents and such further time as agreed between the parties.
The father also sought an order that the mother pay his costs of these proceedings.
This remained the father’s position until the father formally opened his case on day 3 of the final hearing. At that time, his counsel advised the court that:[7]
The case that will be advanced on behalf of my client is the children should spend time with their mother each alternate Saturday from 10 am to 7.30. That that time be supervised by her parents. That the children spend time with their mother each Wednesday from 4 pm until 7.30 pm with my client and/or his nominee to do the driving both ways. That they will deliver and collect the children on both ways. ….. There’s in reasonably advanced state a minute of orders that I will circulate as soon as they are complete, which will contemplate birthdays, Christmas occasions, other matters of special importance to the children and this family. It will include provisions akin to the March ’22 orders which require notification of my client in the instance of decompression of the mother’s mental health and so forth. …
[7] Court transcript at page 204.
When asked whether supervision was sought on a permanent basis, counsel for the father said:[8]
No, your Honour. The problem with that case is the full court in Slater & Light that indefinite supervision is permissible but difficult and problematic. So no, it’s a two-year proposition insofar as the parties will attend upon a family dispute resolution practitioner at the conclusion of that time to review the parenting orders, including any requirements for supervision.
[8] Court transcript at page 204.
Ultimately, a minute of proposed orders reflecting this altered position was provided to the court by the father. In relation to time with the mother, it provides for the children to spend time with the mother:
(a)each alternate Saturday from 10:00 am to 7:30 pm supervised by the maternal grandparents (or either of them);
(b)from 4:00 pm to 7:30 pm each Wednesday;
(c)for four hours on each of the children’s birthdays and the mother’s birthday, to be supervised by the maternal grandparents; and
(d)time on Christmas Day or Boxing Day (alternating years), again to be supervised by the maternal grandparents.
The father’s proposal also allows the mother to attend extracurricular activities. It provides that the parties are to attend a Family Dispute Resolution Service two years after the date of the orders to review the parenting arrangements, including the need for ongoing supervision.
In addition, the father’s proposed orders provide that if the mother is experiencing mental illness symptoms, that the father is to be notified and the children returned to his care.
The mother, to her credit, does not oppose the children continuing to live with the father in circumstances where that is where they are now settled and says that she does not wish to unsettle them.
The mother opposes the father’s ultimate proposal on the basis that it would only provide for the children to spend 16.5 hours a fortnight with her. The mother submits that this is not sufficient time to allow the children to ‘establish a firm, nurturing, developing relationship with the mother’.[9]
[9] Court transcript at page 397.
Moreover, the mother points out that the orders the father seeks is a reduction in the time currently provided for in the May 2024 orders. The mother says that it is open to the court to conclude that the father has intentionally interfered with the children spending overnight time with the mother pursuant to the May 2024 orders to strengthen his case that the children’s time with the mother should not include overnight time on a final basis.
The mother also opposes any order which requires the parties to engage in further dispute resolution in two years’ time. This is in circumstances where the parties have spent five days in a hearing before this court, and over two years in this litigation. The mother submits that in circumstances where the expert evidence is that this litigation has been a trigger which has contributed to the worsening of the mother’s mental health, it is important for these proceedings to be brought to finality and for the risk of further litigation not to be held over the mother’s head. There is, respectfully, much force to this submission.
The mother also opposes the father’s proposed order 8. The order is unclear and simply creates further uncertainty. It is submitted for the mother that the proposed order does not deal with what happens if the mother suffers another episode and the children are returned to the father. Does time cease? How does it resume? The father’s proposal does not address these issues. Again, the mother submits that when regard is had to the evidence in this proceeding to date and the father’s reliance upon the mother’s mental ill health to unilaterally suspend the children’s time with her ought give no confidence to the court that he will act in the children’s best interests in reliance upon this order, if made.
Notwithstanding the orders sought in her amended application, the mother conceded in cross examination that in circumstances where the children’s time with her has been interrupted and they have not spent overnight time with her for some time, that she would be open to a more gradual increase in their time with her than that proposed in her draft orders. In closing submissions, counsel for the mother said: [10]
… my client’s priority, your Honour, is to be given the opportunity to nurture her children, to develop the relationship as time goes on, to get the children used to their attachment to her, to get them back to a normal, but a proper, appropriate regime for their wellbeing and their safety. …
[10] Court transcript at page 402.
ISSUES
The key issues that arise for determination in this matter are:
(a)whether the parents should have joint decision making in relation to long-term issues or whether the father should have sole decision making;
(b)the amount of time that the children should spend with their mother;
(c)whether such time should progress to include overnight time; and
(d)whether the children’s time with the mother should continue to be supervised and, if so, for how long.
In determining these issues, the key concern is the risk posed to the children from the mother’s mental health condition and how best to mitigate any such risks whilst at the same time balancing the alternate risk to the children of a further fracturing of their relationship with their mother.
EVIDENCE
Many of the relevant facts in this matter are not in dispute.
The parties commenced cohabitation in 2010 and married in 2011. X was born in 2012, and Y was born in 2015. The parties separated on a final basis in August 2021.
The mother is a health care professional and was employed from early 2014 until early 2022. She ultimately ceased undertaking this work in the context of her ongoing mental ill health. I accept that once the children were born, although she continued to be the primary income earner, the mother was also the primary carer of the children.
It is not in dispute that in 2018/2019, the mother’s mental health declined and she suffered her first mental health episode. The mother was ultimately diagnosed with a mental illness.
After her initial mental health episode in 2019, the father took on more of a day-to-day parenting role with the children until separation. Following separation, the children continued to live with the father in the family home.
In mid-2019, the parties each obtained an intervention order (‘IVO’) against the other and separated for a period. Shortly thereafter they reconciled, and each withdrew their IVO.
The parties separated on a final basis in August 2021 with the mother leaving the former family home.
The mother initiated these proceedings in December 2021.
Mother’s mental health and her time with the children
In early 2019, the mother attended at the emergency department suffering from chest pains. She was told this was an anxiety attack. After this incident, the mother engaged with Dr J in early 2019 who became her treating psychiatrist. Dr J has continued to treat the mother since.
The mother had a further mental health episode in mid-2021 during which time she believed that the father was trying to poison her. She sought help from her treating psychiatrist and on Dr J’s advice was admitted to K Clinic, transferred to L Hospital’s Psychiatric Unit and ultimately discharged as a voluntary patient the following month.
The father gave a detailed description of the deterioration in the mother’s mental health in early to mid-2021 which ultimately resulted in her admission to K Clinic on a voluntary basis. He details the fact that during a transfer to L Hospital Inpatient Psychiatric Unit for her own protection and the protection of others, the mother absconded and had to be located and restrained by police and readmitted to L Hospital from which she once again absconded and had to be found again and returned to L Hospital. It is clear from the discharge summaries regarding these matters that the mother was very unwell during this period. Ultimately, the mother’s condition improved sufficiently that in mid-2021, she was discharged and returned to live in the family home until separation in August 2021.
In response to questions about the further relapse that the mother suffered in mid-2021, the mother conceded that it took her a couple of days to realise that she was unwell and that she was delusional at the time. In relation to this incident, the following exchange occurred:
Father’s counsel: … you didn’t appreciate that the people at the [L] Hospital were there to help you. You believed that they were there to poison you or to assist … [Mr Jasari] in his endeavours to poison you. Is that right?
Mother:No, I just didn’t think … there was a reason for me to be in hospital other than the fact that I had been poisoned.
…
… that was one of my first real hospital … admission. And I wasn’t really familiar with what happens when I become unwell. I didn’t understand it very well back then. But … now that I’ve been acutely unwell before, I’ve got better insight.
At the time of separation, the mother’s mental health again declined, during which time she was having hallucinations. In August 2021, the father accused the mother of having an affair and demanded that she pack a bag and leave the family home. The mother concedes that part of the hallucinations she was having caused her to say that she was having an affair although this was in fact not true.
In any event, the father demanded that she leave the family home which she agreed to do although she thought this would only be on a temporary basis to de-escalate the situation. The children were staying at the paternal grandparent’s home at the time. It is common ground that the father removed the mother’s house key from her key ring without her knowledge thereby preventing her from being able to return to the family home. The mother deposes to the separation coming as a complete surprise to her and that she found the father’s conduct hurtful.
After the parties separated, the mother agreed to her time with the children being professionally supervised, even though she did not believe that this was necessary. This commenced in November 2021 and a report from the supervisor was prepared in the context of these proceedings which were issued by the mother in December 2021.
In mid-2022, the mother experienced another mental health episode which resulted in her again being hospitalised for two weeks. It is common ground that at this time, the maternal grandfather was with the mother supervising her time with the children. The mother (and the maternal grandfather) had collected the children from school, had an evening meal and then the mother’s condition declined such that the maternal grandfather contacted the father and arranged for the children to be returned to his care, whilst the mother sought and obtained psychiatric support.
The father also gives detailed evidence about this episode in mid-2022. According to the father, the mother was taken to M Hospital, absconded and then returned to her home until she was taken by ambulance, with police assistance to L Hospital in mid-2022. The father deposes that the mother remained at L Hospital until the following month.
The father then details various text message, emails, phone calls and interactions which he had with the mother in the period following her mid-2022 episode over the period from mid-2022 until the mother’s further hospitalisation in late 2023. I do not propose setting that out in detail, other than to note that it is clear from this material that the mother continued to be supported throughout this period by her parents.
The father points to several circumstances in which he says the maternal grandparents have not been entirely forthcoming about the mother’s condition or the deterioration in her condition. For example, the father gives very detailed evidence about the circumstances surrounding the mother’s mental health episode which occurred in mid-2022. The father’s evidence includes various text messages between him and X in which X made certain disclosures about the mother’s behaviour, that she did not feel safe with her mother and that she did not feel comfortable telling the maternal grandfather who was there at the time. The father also deposes to various text messages between himself and the maternal grandfather, in which the maternal grandfather initially denied that the mother was delusional but ultimately conceded that she was and asked the father to come and collect the children, which he did.
The mother was asked about the deterioration in her condition in mid-2022, when she absconded and then was admitted to the K Clinic. When asked about the description of her behaviour on that occasion in Exhibit 1, the mother said ‘That was one of my worst [mental health] episodes, and I don’t remember it very well’.[11] Later in relation to the same incident, the mother said:[12]
… I would say that it’s my worst episode that I’ve ever had … And I took a few days for me to realise that I was actually having a [mental health] episode.
[11] Court transcript at page 44.
[12] Court transcript at page 46.
The following exchange then occurred: [13]
[13] Court transcript at page 46.
Father’s counsel: … Do you agree with me that when you’re in that state, that the children shouldn’t be with you?
Mother:No. The children shouldn’t be with me if I’m that unwell.
…
Father’s counsel: And not only can you not care for them – is that you might put them in harm’s way?
Mother:Fortunately, I’m better at recognising the warning signs, so I haven’t been deteriorated to that state again. I haven’t deteriorated to that point where I was so unwell, I didn’t have any insight.
…
I had missed the early warning signs.
Because… the illness was pretty new to me back then, and unfortunately, I had allowed myself to deteriorate to the point where I was very acutely [unwell].
In late 2023, the maternal family had planned a family holiday to Queensland for the 2023 school holidays. Initially, the father refused to allow the children to attend although he ultimately did agree. Unfortunately, in late 2023, the mother suffered a fourth mental health episode necessitating hospitalisation. She says that she again suffered hallucinations and during such a hallucination, she left her home fearing that she was a danger to herself and those around her. The mother’s evidence is that she then contacted her parents who collected her, and she voluntarily admitted herself to L Hospital in late 2023 where she remained until she was discharged two weeks later. The mother deposes that the father was informed of her hospitalisation by the maternal grandfather. The maternal grandfather advised the father that notwithstanding the mother’s hospitalisation, the paternal family would love the children to attend Queensland anyway. The father did not permit this.
The father’s evidence is consistent with that of the mother and the maternal grandparents, namely that in late 2023, the mother became unwell and was again hospitalised. It was believed that she would not be able to attend the family trip to Queensland and that the maternal grandfather asked if the children could attend in any event. The father did not permit this. Ultimately, the mother was discharged from hospital early and was able to go to Queensland, but the children were not permitted to go with the maternal family. The father also details Y’s anxiety over this period and attributes this to Y not wanting to spend time with the mother.
The mother further deposes that she suffered a further mental health decline in late 2023. She says that, as a consequence, she was unable to spend time with the children in late 2023. The mother accompanied her parents to their home in City N and whilst in City N became unwell. Her parents had her assessed by the City N CAT team, who prescribed stronger medication. The mother deposes that upon commencing this new medication regime, she experienced a dramatic improvement in her mental health, and she then spent time with the children in City N in late 2023.
The father is critical of the mother and the maternal grandparents for not keeping him informed of her mental health at this time.
In cross-examination, it was put to Mr D that he did not advise the father that there had been a deterioration in the mother’s mental health in late 2023, until early 2024. This is notwithstanding that Mr D felt it appropriate to have her assessed by the City N CAT team whilst she was in City N. Mr D maintained that the mother had been diagnosed with a physical illness by her GP prior to coming up to City N. He further states that when she came up to City N she was not well and ultimately, he thought it appropriate to have her assessed by the CAT team to make sure that it was nothing more than the physical condition.
Mr D said that the children came to City N for 24 to 48 hours and while they were up there the mother was quite well. In this context, the following exchange occurred:[14]
Father’s counsel: See [Mr D], what you’re saying is that … the children are going – within a context and a history of providing the children to [Ms Jasari] in a state of poor mental health, did you think it was relevant for you to tell [Ms Jasari] that three weeks before, she has had a breakdown in her mental health and a medication adjustment? That, I suggest to you is intently relevant material?
[Mr D]:Well, your honour, I don’t believe so. It’s a bit like children – you know they get the cold at the drop of a hat and then you’re faced with a child who is coughing and sneezing, and they they’re better within four or five days. I don’t hold a mental episode like that any different to any other illness, really.
Father’s counsel: [Mr D], I assume … and I don’t want to be flippant … but the symptoms that your daughter presents with is being possessed by demons and […] hallucinations. It’s a very different thing to … children having a cold, I suggest to you?
[Mr D]:I don’t accept that there’s a big difference, your Honour. Illnesses, be they physical or mental, they all have their time courses and their response times, and they also change one’s vitality when you’ve got them. I don’t see a big difference. They need to all be managed correctly.
Father’s counsel: … what I want to suggest to you, [Mr D], is that you didn’t tell [Mr Jasari] about the mental health breakdown because … you were scared of the implications if you did. You were scared of the implications for this court case?
[Mr D]:I don’t accept that, your Honour.
[14] Court transcript at page 167.
It is also common ground that the mother again experienced a further decline in her mental health in early 2024. This was two days prior to the date on which the mother was due to file her court documents in these proceedings for the final hearing which was listed to commence on 5 February 2024. The mother’s evidence is that she attended the hospital emergency department with her parents and when assessed by a psychiatrist, was voluntarily admitted. The mother says that her medication was adjusted on that occasion, and she was discharged after treatment about two weeks later.
It is not in dispute that the father refused to make the children available to spend time with the mother after her discharge in early 2024 as required by the orders made on 1 December 2022. The father refused to provide the children for any time with the mother unless and until he had received a copy of the hospital file and the discharge summary.
An ongoing dispute then ensued between the parties about what documents were able to be provided by the mother.
It is common ground that as a result of this dispute, the father did not make the children available to spend time with the mother from January 2024 until May 2024.
It is common ground that the mother attended the father’s home to give X a birthday card, in circumstances where she expected that she would not be spending any time with X for her birthday. Relevantly, at paragraphs 292 to 293 the father said:[15]
292. I am also concerned about [Ms Jasari]’s behaviour due to an incident that happened shortly after 5 pm on […] 2024. I made notes on a sheet of paper while events were fresh in my mind shortly after the incident, and at 9.10 pm that evening I transferred these into my diary.
293. At about 5:05pm on [that date] the doorbell rang. I opened the door and [Ms Jasari] was there. I said to [Ms Jasari] “You shouldn’t be here, what are you doing here?” She replied, “I have a present for [X]’s birthday I want to give to her because you’re not letting me see her, is she here or at your mum’s?” I said, “You haven’t sent the discharge summary and the hospital notes yet so we can resolve this.” She replied, “I don’t have them, they’re really hard to get, they didn’t give them to me at the hospital.” I said, “That’s not true, your lawyer and doctors have them and you can get them anytime.” I went inside and called [X] out to see [Ms Jasari]. [X] nervously said, “Hi mum”. [Ms Jasari] replied, “This is for you [X] as I may not see you on your birthday because dad is not letting me see you.” I saw [Ms Jasari] hand to [X] a mobile phone, a card and a document. I then said, “Give her a hug [Ms Jasari], surely.” [X] then went back into the house, while I continued to speak to [Ms Jasari]. I said to [Ms Jasari], “Why don’t you just send the documents?” She replied “I don’t you having copies that you will hang out and send about me.” I said, “You have already given the [L Hospital] discharge summary and notes as well as other documents, so that’s not true. I care about the safety of the kids. You and your dad have to change the way you think, as I don’t care about making copies, let’s just resolve this.” [Ms Jasari] said quite firmly, “No I’m not sending you a copy of them.” I went back inside to find [X] visibly upset, crying with a letter in her hand … I said, “Are you ok [X], what are you reading?” She handed me the letter, I was appalled when I read it. [X] said, “Dad she’s weird, why does she do this, it’s so strange it’s not even my birthday yet and what’s this letter? It’s weird dad, I don’t like how she does this. And why did she get me this phone, it’s embarrassing, my friends will laugh at me, she’s so weird dad.”
[15] Affidavit of Mr Jasari affirmed and filed on 13 May 2024.
The father thereafter opposed any time between the mother and the children unless that time was supervised pending the final hearing of this matter. The father expressed concern about not being informed in a timely manner of the mother’s declining mental health by the maternal grandfather in early 2024. The father continued to have concerns about the mother’s compliance with her medication. In circumstances where the mother has had repeated periods of hospitalisation in 2024, he also expressed concern as to whether the mother was obtaining appropriate medical treatment.
The mother concedes that after spending some time with the children at the maternal grandparent’s home in City N from late 2023, the mother suffered another mental health decline from early 2024 which ultimately resulted in her being made subject to an assessment order. The notes to the Assessment Order relevantly state:
… Currently experiencing […] hallucination telling her to not take medications and lie still on the bed. Significant risk of deterioration to mental and physical health. Nil oral intake since yesterday. Refusing voluntary admission, no lesser restrictive ways to manage.
The mother was then admitted and remained an inpatient for two weeks in 2024.[16] The mother agreed during this admission to commence having the depot injections. Also following this admission, the mother was discharged to R Centre, being a facility for patients with mental health issues, who are no longer suffering acute symptoms but who would benefit from short term intensive treatment and support in a residential setting after discharge. The mother then remained in R Centre until early 2024. Whilst at R Centre, the mother continued having the depot injections.
[16] Court transcript at page 118.
In the context of the father refusing to allow the children to spend any time with the mother, the mother says that she wanted X to know that she was thinking of her and trying to see her and to explain why she was not able to see her. That letter is annexed at ‘MSJ-7’ to the mother’s trial affidavit. The letter refers to the ongoing conflict between her and the father. The mother now concedes that it was not appropriate to include such details in correspondence with X.
The mother suffered another episode and was again seen at the Emergency Department of O Hospital in early 2024. The hospital notes indicate that at this time, the mother was not eating or drinking or taking her medication. The mother conceded that at this time, she was experiencing hallucinations causing her not to do these things.
In cross-examination, it was put to the mother that she was seeking to manage the information presented through the doctors having regard to how that information might be used in these proceedings. Whilst the mother conceded that there was some truth to this, she did not accept it as an overall assessment. In this context, the following exchange occurred:[17]
Father’s counsel: … I want to suggest to you that … the evidence that you gave just before lunch that you wanted that you wanted to impression manage in terms of the depot injections. … you didn’t want to have an […] injection because of the way that may have appeared in court, and you were concerned about the discriminatory nature of that. Yes?
Mother:Yes.
…
Father’s counsel: … And you were reluctant to speak to them because you feared that the evidence would be utilised in this court case?
Mother:Yes, I feared that my most private thoughts would be blazoned across everyone’s minds … in the court case yes.
Father’s counsel: … So having regard to those worries of yours, you were restrained in the information you were giving to your care team about instances of your mental health?
Mother:I think you can tell from the documents that what has been said by me was not restrained because otherwise I wouldn’t have admitted to delusions.
[17] Court transcript at pages 137 and 138.
The mother was admitted to P Clinic in early 2024 and discharged herself from that unit around a month later. The mother agreed that P Clinic was happy for her to stay longer but understood her desire to be at home when the court case was heard, which at that stage, was due to commence on 27 May 2024.
In cross-examination, it was put to the mother that the clinicians at P Clinic thought it would be better for the mother to remain in the clinic during the court case but that notwithstanding this advice, the mother discharged herself prior to the hearing. The mother agreed that she balanced the recommendations made by the medical professionals with the advice she received from her legal advisors and ultimately decided to discharge herself. Her evidence was that P Clinic had also indicated that she could be readmitted after the court case if necessary.[18]
[18] Court transcript at page 144.
In re-examination, the mother confirmed that she had not received any inpatient treatment since mid-2024 and that she visited Q Clinic about once a fortnight to see her case manager, an occupational therapist, a psychiatrist or a psychiatric registrar. In addition, the mother sees her private psychiatrist in the alternate week. Her parents come down every Tuesday or Wednesday as they currently supervise her time with the children and then they also come down to Melbourne each alternate weekend when the children spend time with her. In addition, the mother has a support worker who comes to visit once a week from an organisation that supports people with mental health issues. The mother also confirmed that she would be having a council worker attend once a fortnight to assist with cleaning and if her parents are not physically in Melbourne with her, she would speak to them by telephone each day. The mother confirmed that this level of intervention has been in place since mid-2024.[19]
[19] Court transcript at page 147.
Whilst the mother also acknowledged that she had had a relapse in early 2024, from her perspective, this was brought on by the fact that the father was not allowing the children to spend time with her and also in about early 2024, she completed a family violence form with one of the workers at R Centre and this dredged up a lot of emotions about what had happened in her relationship with the father. She was required to complete this form prior to commencing Art Therapy classes at R Centre. It is common ground that the father had not allowed the children to spend any time with the mother from early 2024 to Mother’s Day.
The mother also confirmed that it is her intention to continue to comply with the safety plan that is currently in place.
In re-examination, the following exchange occurred in relation to the depot injections:[20]
[20] Court transcript at page 151.
Mother’s counsel: … what do you say about the continued taking of injections once a month?
Mother:I’m happy to do it for the moment because it’s keeping me stable.
Mother’s counsel: And, well, does that mean you intend to continue having the depot injections into the foreseeable future or what?
Mother:Yes, unless I’m advised that I can wind back on my medication.
Mother’s counsel: So are you saying it depends on your doctors?
Mother:It depends on my doctors, yes
Mother’s counsel: Does it depend on what you think?
Mother:No.
One of the father’s concerns is the mother’s medication compliance. Mr D was taken to the admission notes of the mother’s admission to O Hospital in early 2024, in which the maternal grandfather expressed concern about the mother’s compliance with medication. He agreed that he did hold this concern, when the mother was ill.[21] In this context the following exchange occurred:[22]
[21] Court transcript at page 189.
[22] Court transcript at pages 189 to 190.
Father’s counsel: … And you are aware that medication compliance is a key trigger for [Ms Jasari] in terms of [having mental health episodes]?
[Mr D]:… as I indicated yesterday, when [Ms Jasari] became unwell, and she went to the bed, she would miss medication. And at that time, we weren’t sure, and we would try to do medication for her while we were there … we weren’t sure that she was actually swallowing medication at the time. … we were very concerned at the time about that to try and get her to take her medication. We had doubts, and that was very unsettling, and another reason why we actually said it’s time to go to hospital.
…
… obviously medication compliance is very important for her mental wellbeing
…
Father’s counsel: [Mr D], what I’m suggesting to you is that you have deliberately omitted those concerns from your affidavit, in order to paint a picture that there is less concerns in relation to [Ms Jasari]’s mental health than there really is?
[Mr D]:I refute that. I wrote that affidavit as I thought appropriate, and putting in that information didn’t seem appropriate to me.
In summary, the mother acknowledges that she has serious mental health issues, however, she maintains that she is, and will continue to, actively seek care and that she will follow the recommendations of her health providers. The mother also says that when she is well, she is able to care for the children and that the children would benefit from a meaningful relationship with her.[23]
[23] Affidavit of Ms Jasari affirmed and filed on 6 May 2024, paragraph [141].
At the hearing, the mother was granted leave to rely on a further affidavit filed 6 August 2024, in which she provided an update on her mental health. The mother deposes to having engaged a support worker to attend her home on a total of 5 occasions for 1.5 hours each day. She ceased this arrangement and, in its place, has arranged a publicly funded support worker from S Organisation who visits each Thursday for 2 hours.
The mother also deposes to continuing to be compliant with her medication and continuing to receive monthly depot injections in addition to her daily medication. The mother further deposes to attending upon Q Clinic approximately 2 to 3 times a month including to see her Case Manager and her consultant public psychiatrist. In addition, the mother deposes to continuing to attend upon her private psychiatrist Dr J on a fortnightly basis.
The father’s trial affidavit sets out in detail, his observations of the mother’s behaviour when she suffered from mental health episodes whilst the parties were together. He deposes to the fact that he was fearful of the mother’s behaviour, particularly during her first episode in early 2019.
The father is concerned about the mother’s ability to comply with her medication regime. In this context, he deposes to his observations that in the months prior to separation, the mother was not compliant with her medication. The mother, to her credit, conceded in cross-examination that when she becomes unwell, at times, she forgets to take her medication. However, the mother’s evidence, which I accept, is that as at the date of the trial, her medication regime had changed to the extent that she is currently receiving some of her medication via depot injection once per month. In addition, she is still required to take oral medication.
The father denies that he has unreasonably sought to prevent the children from spending time with the mother after separation. For example, he gives detailed evidence of the lengths he went to in the second half of 2021 to arrange for the children to spend time with the mother. He sets out in significant detail the mother’s behaviour on those occasions, including occasions when she was late, when she missed time with the children. The father also refers to adverse comments made by the children about their time with the mother.
At paragraph 346 of the father’s May 2024 Affidavit, the father says:
346.… my wish all along has been that the children can continue and develop their relationship with their mother on the basis that this is a safe arrangement for the children and limits their exposure to their mother’s mental health problems. My primary objective is the safety and welfare of the children.
The father has questioned whether the mother has complied with the mental health plan since it was implemented. For example, he points to the fact that he was not advised that the mother had been assessed by the CAT team when staying with her parents in City N in late 2023.
The mother maintained that she is aware that she has a psychiatric condition which requires ongoing treatment. She has insight into the nature of the condition and conceded that her memory of what occurred when she is experiencing a mental health episode may not be reliable. For example, when asked about the suggestion that she placed an object on her mother in law’s head during her index episode in early 2019, the mother denied that this happened, but then went on to say:[24]
… look, admittedly I was unwell. And my recollection of what happened during that time is probably not as good as it should be. But I don’t recall putting [an object] on [Mr Jasari]’s mother at all. I have no … recollection of that.
[24] Court transcript at page 21.
The mother also conceded that when she has been acutely unwell, she did not have insight into the fact that she was experiencing a mental health episode.[25] However, she went on to note that as time has passed, she has become better at recognising the signs that she is becoming unwell and seeking out the required assistance. In this context, the following exchange occurred in cross-examination:[26]
Father’s counsel: And [Mr Jasari], that’s the critical point of this case, isn’t it? That when you are unwell, you are believing something, and that’s your reality at that time. You needed to escape [Mr Jasari] because he was there to kill you at the house of [Mr T]. You need to flee. That was your reality at the time.
Mother:Yes … that’s how a [mental health episode] works.
…
But … I’m much better at recognising it when I’m unwell now because I’ve had episodes where I’ve been acutely very [unwell], and I’m better at recognising the warning signs leading up to it.
[25] Court transcript at page 39.
[26] Court transcript at page 40.
It is common ground that the mother filed an application for National Disability Insurance Scheme (‘NDIS’) funding support in early 2024 (‘the NDIS application’). The father relies upon the content of that application as evidence of the severity of the mother’s condition and her inability to care for herself, and by inference to care for the children. Relevantly a letter written by O Hospital in support of the mother’s NDIS application, which is at Exhibit 6, provides:
[The mental illness] is permanent and irreversible. It results in significant impairments in most aspects of her life. This includes significant impacts on her self-care, self-management, social interaction and communication. While this condition can fluctuate in its presentation, [Ms Jasari] will always need to live with this condition. As a result of [the mental health condition] [Ms Jasari] has significant and permanent psychological disability impacting on their social and economic participation.
The letter in support of the NDIS application for the funding was prepared by Dr U, who is the public psychiatrist who is part of the mother’s care team. The mother agreed that the information contained in the application for NDIS funding about her needs, was true and correct. The mother maintained however, that the limitations referred to are limitations which arise when she is acutely unwell. In this regard, in cross examination, the mother said:[27]
They wrote the worst-case scenario for the NDIS application, and it wasn’t accepted, … I didn’t qualify for the NDIS. They said that I wasn’t disabled enough to qualify. … that was written about how I am when I’m at my worst, when I’m very unwell. It’s not – doesn’t reflect how I am when I’m well and that was probably the reason why the NDIS didn’t accept my application.
[27] Court transcript at page 115.
The NDIS application is one piece of evidence about the mother’s condition and the impact it has on her day-to-day life. It is not determinative of the mother’s parenting capacity. I place some weight on it but also have had regard to the assessments of the mother’s capacity made by the mental health experts in this matter.
Another of the father’s concerns is that the mother’s condition is unpredictable and that her mental health can decline quite rapidly. The mother conceded that there have been occasions when her mental health has declined quite quickly, including within days of having seen her treating psychiatrist.
The father therefore asserts that the mother’s proposed mental health plan, which would require the mother to have regular contact with a number of people, both professionals, support people and members of her family, cannot guarantee that she will not relapse and fail to recognise the symptoms in order to avoid exposing the children to her mental ill health, or put them in harm’s way.
For example, the father points to the mother’s decline in mid-2022 when on the maternal grandfather’s case, she was fine after collecting the children from school and then became unwell and unresponsive within a number of hours.
Mr D was cross-examined at length about this incident. Mr D confirmed in cross-examination that he had been with the mother and the children from pick up after school. His evidence is that the mother prepared a meal for the children, at which time she seemed to be functioning quite well. He said that he was unaware of any problem as he was in the kitchen doing the dishes while the mother was giving Y a bath getting ready for bed when he received a text from the father saying that he had received concerning text messages from X. Mr D then says that he spoke to the mother and observed her to have some disordered thinking. It was at that point that he formed the view that she was not well. Mr D gave evidence that as soon as he realised that the mother was not well, he contacted the father and arranged for him to come and collect the children.
Whilst this incident does show that the mother’s condition did deteriorate quite rapidly, it also demonstrates that the maternal grandfather who was supervising her time, did the right thing and upon becoming aware of the mother’s condition, contacted the father and arranged for the children to return to his care so that the mother could attend to her mental health treatment. Moreover, the mother’s treatment has also progressed since this incident as she and her treaters adjust her medication and treatment regime.
Children’s time with the mother post-separation
As stated, after separation, and prior to commencing these proceedings, the mother agreed to her time with the children being professionally supervised. When the matter first came before the court in February 2022 orders were made by consent for the parties to attend upon Dr F for the purpose of a family report and a psychological report.[28] The matter was otherwise listed for an interim defended hearing on 2 March 2022, at which time the question of the children’s living arrangements and the ongoing need for the mother’s time to be supervised would be considered.
[28] Orders of Judicial Registrar Litterick dated 2 February 2022.
On 2 March 2022, orders were made that the children spend time with the mother overnight, supervised by the maternal grandparents, progressing from one overnight initially to two overnights and ultimately to three overnights unsupervised.[29] The court also orders providing for a mental health safety plan for the mother and for the parties to arrange psychological support for the children. The interim hearing was otherwise adjourned to 22 June 2022.
[29] Orders of Senior Judicial Registrar Sudholz dated 2 March 2022.
On 22 June 2022, the matter was again adjourned to October 2022 with a psychiatric assessment of the mother to be obtained.[30] The children were to spend time with the mother during daytime only on Sundays and after school on Fridays, such time to be supervised by a nominated member of the mother’s family. By order made on 28 September 2022, and at the request of the parties, the October hearing date was adjourned to 9 November 2022.[31] By order made on 9 November 2022 and again at the request of the parties, the hearing date scheduled for 10 November 2022 was again adjourned to 1 December 2022. [32]
[30] Orders of Senior Judicial Registrar Sudholz dated 22 June 2022.
[31] Orders of Senior Judicial Registrar Sudholz dated 28 September 2022.
[32] Orders of Senior Judicial Registrar Sudholz dated 9 November 2022.
On 1 December 2022, orders were made for the children to spend daytime only with the mother each alternate Saturday and Sunday and after school on Wednesday.[33] The December 2022 orders also provided for time over the long summer holidays and then for the children’s time with the mother to progress to overnight time commencing on 11 March 2023 each alternate weekend from 10 am Saturday until 7.30 pm on Sunday and each Wednesday after school.
[33] Orders of Senior Judicial Registrar Sudholz dated 1 December 2022.
Notwithstanding the December 2022 orders, as stated earlier, the father did not permit the children to spend time with the mother until such time as she provided various medical discharge documents regarding her hospital admissions. Ultimately, it is common ground that the children did not spend any time with the mother from January 2024 until May 2024.
On 23 August 2023, the matter was listed for a final hearing to commence on 5 February 2024 with an estimate of 3 days.[34]
[34] Orders of Chief Judge Alstergren dated 23 August 2023.
On 23 January 2024, the final hearing was adjourned to 27 May 2024.[35] That date was again adjourned on 27 May 2024, to a hearing date on 12 August 2024.[36]
[35] Orders of Deputy Chief Judge Mercuri dated 23 January 2024.
[36] Orders of Deputy Chief Judge Mercuri dated 27 May 2024.
On 27 May 2024, interim parenting orders were made that the children continue to live with the father and spend time with the mother on a gradually increasing basis, each Wednesday after school and initially daytime only each alternate weekend, progressing to overnight time each alternate weekend from 10am on Saturday until 7pm on Sunday. The children’s time with the mother was to continue to be supervised by the maternal grandparents.
The mother gave evidence that at the time of her affidavit filed 6 August 2024, she had spent a total of 20 occasions with the children. She deposes to the fact that the children enjoy that time. The mother further deposes to the fact that notwithstanding the interim orders made on 27 May 2024, the father had not facilitated any overnight time. The May 2024 interim orders provided that:
6.If the children, or either of them, become distressed whilst in the mother’s care or expresses a desire to return to the father’s care, the mother, together with the maternal grandparent who is supervising the children’s time with the mother shall contact the father and return the child/children to the father’s care.
The mother’s case is that the father has inappropriately used his order to encourage the children not to spend overnight time with her since May 2024. The mother deposes that on the first occasion when the children were to spend overnight time with her, X told her that the father had said that she could ‘stay as long as she wanted’ and that the children could ‘do whatever we like’.[37]
[37] Court transcript at page 203.
The mother deposes to the fact that later on that first day, when X said that she slept better at her father’s home, the mother acted in a child focussed manner and returned the children to the father’s care.
Not only did the mother say that the father did not encourage the children to spend overnight time with her as required by the May 2024 orders, the mother further states that the father made alternative arrangements for the children to attend a sports game whilst they were to be in the mother’s care which led to the children expressing a preference to attend the game rather than stay overnight with the mother.
The father denies this and says that he did encourage the children to spend overnight time with the mother but says that they told him that they did not feel comfortable doing so.
In his further affidavit filed in August 2024, the father deposes to the children’s time with the mother since the May 2024 orders were made.
He says that the children have repeatedly told him that they feel uncomfortable staying overnight with their mother and that they feel pressured by the mother and the maternal grandfather to do so, both of whom have made adverse comments about the father.
At trial, the mother conceded that at that time, the children were still not comfortable sleeping overnight at her home.
MEDICAL EVIDENCE
Dr J
The mother relies upon two affidavits of Dr J filed in these proceedings, the first on 11 January 2024 and the second on 6 August 2024.
Dr J is a consultant psychiatrist and has been treating the mother since March 2019. Annexed to her January 2024 affidavit, are a number of reports prepared by Dr J. In the report dated 18 December 2023, Dr J noted the following:
I can confirm that I was involved in [Ms Jasari]’s index episode of mental illness back in 2019 and I have been seeing her consistently since that time. She has had a number of admissions to hospital where she has also been assessed by other psychiatrists and psychiatric teams, and I have liaised with the various teams involved in her care over time.
…
In summary, [Ms Jasari] presented with an index [mental health] episode at the age of 40. She was working as a part-time [health care worker], and was the primary care giver for her two children, [X] and [Y]. She commenced […] treatment which she responded to quite quickly, with full recovery of her symptoms. Whilst she was [unwell], she was insightful and took leave from work and managed her job responsibly. I was never required to report her condition to [the health care authority] because when unwell she did not work.
…
Her initial diagnosis was [a mental illness]. The pattern of her illness following the index episode following the index episode was, up until the final separation from her husband, of discrete episodes with inter-episode full recovery and cognitive capacity. She was able to return to her full workload as [a health care worker].
…
I have had numerous conversations with [Ms Jasari] regarding the care of her children. She has always been attuned to their needs and able to prioritise their well-being, this has been her main motivation to try and cooperate with their father with respect to their care but this has not been reciprocated.
Since [mid] 2023, it has been my impression that there has been a decline in [Ms Jasari]’s optimism with respect to the future, in particular her future opportunity to parent her children. … I mention this because I think it has had a significant impact on her mental health. She initiated trying to retrain as a [health care worker] but has been unable to attend to that, and cope with the continued deprivation from her children. Her mood has declined since [mid] 2023; I have been seeing her regularly and whilst she does rally, the relentless psychological and financial stress she is under, protracted now for two and a half years, is having a significant impact on her mental health.
Dr J ultimately diagnosed Ms Jasari with a mental illness. In response to a request to summarise her symptoms, Dr J said:
When [Ms Jasari] has an episode of illness, she develops [mental illness] symptoms in which she may hear voices, and suffer delusional beliefs and can vary in nature, that may be grandiose and highly religious when she has elevated mood, such as in her index episode of illness. Additionally, she may experience irritable mood and disorganisation. For the most part when [Ms Jasari] has been unwell, her cognitive capacity and insight have been quite good, aside from the recent episode that [Dr G] describes. My impression is that the mounting stress and fear of what might happen in the court case in February is having an enormous impact on [Mr Jasari]’s capacity to cope during this period. Currently she has significant lowering of mood, delusional ideas and negative thought processes regarding her future. She ruminates regarding everything that has happened.
…
[The mental illness] is a chronic psychiatric condition that [Ms Jasari] will likely be managing for the rest of her life. [Ms Jasari] is a [health care worker] with good insight and understanding of the management of the condition. I believe her prognosis to achieve complete remission and remain well is good once the current stress she is experiencing is alleviated. … I obviously cannot guarantee that that will happen at this point, however I have been impressed over the last few years for the most part with [Ms Jasari]’s positivity and desire to recover.
As noted by Dr F, the mother has a mental illness which will need to be managed for the rest of her life. When the mother is profoundly unwell, she needs to be engaged with appropriate services, and at times may need periods of hospitalisation. But the fact that this may occur in future, does not of itself mean that she is a risk to the children, such that their time with her should be limited in the manner proposed by the father.
What is necessary to mitigate the risks that the mother’s mental health poses the children is an appropriate plan which sees the mother continue to engage with her treating medical providers, follow their directions and which would allow the mother, and those who support her, to observe any deterioration in her mental health and ensure that she obtains the necessary treatment as and when required. Clearly, if the children are in her care at the time, it is also necessary that they understand that the mother’s behaviour is a manifestation of her illness and that she will get the help she needs and once she is better they can resume spending time with her.
This is the ‘new normal’ for this family. It is important for the children to be educated in the nature of the mother’s illness in an age-appropriate way so that they are not fearful of it.
It is submitted for the father that if one of the things which may add to the deterioration of the mother’s condition is added stress, then making orders for the children to spend more time with the mother, where the mother will then become responsible for ensuring that the children attend their extracurricular activities is simply placing undue stress on the mother.
There are two things to be said about that. First, there is no evidence that the stress of taking the children to their extracurricular activities has caused the mother’s condition to deteriorate. Second, and rather, there is significant evidence from the mother herself, and the experts who have assessed her, that the absence of the children from her life, in circumstances where prior to separation she was their primary carer, has caused her significant stress and has continued to trigger a deterioration in her mental health.
The father’s conduct in not allowing the mother to spend any time with the children, when she was well enough to do so, in the period between January 2024 and Mother’s Day 2024, is inexplicable. He demanded access to the mother’s mental health records before he would agree to allow the children to resume their time with the mother. In circumstances where the maternal grandparents had offered to be present at any time with the mother, it is not clear on what basis this position could reasonably have been adopted.
The children have a close and loving bond with the maternal grandparents. The father’s own evidence is that he has never seen the maternal grandparents to behave other than appropriately when with the children. It is apparent from the maternal grandfather’s evidence in this matter, that he and his wife are extremely supportive of their daughter and her relationship with the children.
Having regard to the totality of the evidence before me, I find that the mother is aware of and accepts that she has a psychiatric condition which requires ongoing management. She has and continues to actively seek support in managing this condition. She has the support of both a private and public psychiatric team. She has accepted that medication compliance has been an issue in the past and is currently receiving medication through a depot injection. The mother has agreed to continue to abide by a mental health safety plan which is designed to ensure that she has regular contact with both professional and personal supports in her life to assist her to identify if her mental health is in decline and that she obtain the appropriate treatment. The mother has indicated that she is prepared to continue to abide by that plan until she the children reach the age of 18.
LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (‘the Act’) relevantly provides that the objections of Part VII of the Act are:
(a) to ensure that the best interests of children are met, including by ensuring their safety…
CONSIDERATION
Decision making
Section 61CA provides:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long-term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Section 61D further states:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) …
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child … may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA goes on to state:
(1)If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a)to consult each other in relation to each such decision; and
(b)to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Major long term issues is defined to mean:
…issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
As stated, the mother seeks joint decision making, whereas the father, subject to consultation, seeks sole decision making.
The evidence is that the trust between the parents is not high. However, there is no evidence that when the mother is mentally well that she is not capable of participating in consultation about the children’s long-term issues.
The father has not established to the requisite standard that there is any proper basis for him to have, as a default position, the right to make all decisions regarding major long-term issues for these children. It is in the children’s best interests for them to know that their parents are able to negotiate and make such decisions together.
The only issue raised in this case which may impair the mother’s ability to be involved in the making of such decisions is if her mental health was such that she was unable to participate in the necessary consultation and decision-making process. The mother’s proposed orders address this issue, appropriately in my view by providing that if the mother is incapacitated due to her mental ill health when such a decision is required, the father may make the ultimate decision. This order in my view is in the children’s best interests.
Best interests of the child
In determining the amount of time the children should spend with their mother, whether such time should include overnight time and whether, and if so for how long, the children’s time with their mother should continue to be supervised, the paramount consideration is the best interests of the child.
Section 60CA provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out how the court determines what is the child’s best interests, in particular by requiring a court to have regard to the following factors:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
As stated in considering the best interests of the children in this matter, the key concern is the risk posed to the children from the mother’s mental health condition and how best to mitigate that risk, balanced against the alternate risk to the children of a fracturing of their relationship with their mother.
What orders would promote the safety of the children?
It is submitted by the father that the mother’s mental ill health poses a risk to the safety of the children in circumstances where the evidence shows that the mother’s mental health can rapidly decline into a mental health episode without her being able to identify that she is becoming unwell. As I understand it, the suggestion seems to be that if the mother did have a mental health episode while the children were in her care, this would in and of itself, detrimentally impact them.
It is further submitted for the father that a further risk arises from the mother’s non-compliance with medication, which in turn can lead to a decline in her mental health.
The father concedes that it is in the children’s best interests to have a relationship with their mother but that the best way to provide for the children’s safety is to limit their time with the mother to limited daytime only, fully supervised by her parents, for at least two years, after which time, the need for ongoing supervision can be revisited.
Whilst much of the evidence in this case has been on the mother’s presentation when unwell, and the number of hospital admissions she has had, and the father’s assertions that the children do not feel comfortable in the mother’s care overnight, the father has not led any evidence of any physical or emotional risk that the mother poses to the children whilst in her care, other than the possibility that they may be exposed to her when she is mentally unwell. He concedes that when she is well, the mother is a good mother. The evidence of Dr F is that the children have a loving bond with their mother (and their father) and that whilst there has been some diminution in their connection to their mother over the course of these proceedings, their bond with her is still strong. Dr F has also given evidence about the long-term risks to the children if their relationship with their mother is fractured.
To the extent that the father raises concerns about the mother missing extracurricular activities, these are minor in my view and fall well short of any concept of neglect or harm for the purposes of the Act. Ultimately, whilst the parents need to manage the children’s expectations about such activities, as noted by Dr F, the children’s best interests are better served by having a positive relationship with their mother than being engaged in more extracurricular activities.
The fact is that the mother has been diagnosed with a serious mental health illness. The expert evidence, from three different professionals, is that the mother has insight into her condition and as she lives with it, she increasingly becomes aware of any decline in her mental health. The mother has sought and continues to accept treatment for her condition. Whilst there have been times where she has had an adverse reaction whilst being admitted to hospital for example, this has not led her to refuse treatment overall. It was acknowledged by Dr G and Dr J that it is not uncommon for a person with a mental health condition to adversely react when initially being admitted as an inpatient. Notwithstanding these incidents, the mother has continued to engage with her treating psychiatrists and other professionals and is now in a position where she is being supported both in the public and private settings.
Similarly, whilst the father points to comments made by the mother during her various hospital admissions about the medication that she has received and the side effects that she has experienced, I am not satisfied that this is evidence of the mother seeking to self-prescribe or to manage her own medication. Rather, I accept the mother’s evidence that on occasion she, appropriately, with respect, raised concerns about side effects with her treaters and as a consequence, either her medication was adjusted, or she accepted that she would need to live with the side effects. Again, the mother has, over an extensive period of time, demonstrated a preparedness to engage with recommendations made to manage her condition.
The father points to the fact that the mother was reluctant to accept the suggestion that she have medication delivered by the depot injection until the beginning of this year. Again, I find on the totality of the evidence, that this decision was not a refusal to accept appropriate recommendations but rather, was the result of a combination of factors, including, the mother’s concern about how that might be perceived in these proceedings, the pain associated with the injections and the stigma that can attach to the manner in which such medication is delivered.
The fact that it took the mother some time to trial oral medication prior to agreeing to the depot injection, does not indicate that she was resistant to accepting treatment. In any event, the mother has now been receiving the depot injection since the beginning of the year and it appears to have provided her with some relief. Her conduct throughout the trial supports the mother’s position that her current medication regimen is working.
The mother’s illness will need to be managed for the remainder of her life, through medication and other psychological supports. The mother is engaged with her treatment. She accepts that she needs support and that when she is well, this includes the possibility that she will require hospitalisation.
As Dr F stated, it is in everyone’s interests to accept that the mother has a mental illness and act accordingly.
However, the mere fact that the mother has a mental illness is not a risk per se. The question is whether her mental ill health places the children’s safety at risk or whether it impacts her capacity to meet the children’s developmental, psychological, emotional and cultural needs.
Views of the children
The children’s views as expressed to Dr F are set out earlier in these reasons. It is apparent that they enjoy spending time with their mother but that they have become more concerned particularly about spending overnight time. I accept that in part this is due to their own experience of the mother’s behaviour whilst in an unwell state, but also in part by the fear that they have absorbed from their father.
I therefore give limited weight to those views. This is particularly so in circumstances where the children did have a very loving and close relationship with their mother prior to the separation. I also note that it is telling that the mother’s initial episode occurred in 2019, when the parties were together. Aside from the short period of separation, the parties remained together until final separation in August 2021.
During that time, the mother was being treated for her condition and the father’s evidence is that her behaviour was at times unusual. The mother was supported at this time in caring for the children both by her husband but also by her parents who came to stay with the family at various times when the mother was unwell.
Developmental, psychological, emotional and cultural needs of the children
The children are on both parties’ evidence, well adjusted. They are actively involved in a range of activities outside of school and do not have any particular issues. As stated by Dr F, they would benefit from age appropriate counselling to assist them to process their mother’s condition and to understand her behaviour when she is unwell.
Both parties agree that the children will benefit from having a meaningful and loving relationship with their mother.
The orders proposed by the mother would best support that relationship into the future.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, emotional and cultural needs
The mother’s capacity to care for the children when she is well is not questioned. The mother accepts that when she is in a mental health episode, she is unable to care for the children.
The father’s case has focused on the mother’s ability to care for the children when she is unwell. As discussed, the father’s own conduct in these proceedings raises questions about his ability to support the children’s psychological needs in circumstances where he himself has had difficulty in coming to terms with the mother’s illness and how to support the children in dealing with that.
In circumstances where the children were primarily cared for by the mother prior to separation, they have had a significant adjustment to make not only dealing with the separation of their parents, but also their mother being seriously unwell at times. The court is concerned about the father’s insight into the impact on the children of his approach to the mother’s illness.
It would be useful for the father to engage psychological support to help him so that he can support the children in their relationship with both parents.
The benefit to the children of being able to have a relationship with their parents, and other people who are significant to the child, where it is safe to do so
Both parties agree that it is of benefit to the children to have a relationship with both parents, as well as both the extended maternal and paternal family.
These children are clearly much loved by the parents and their extended families and they have a lot to benefit from being given the freedom to enjoy those relationships.
However, as noted by Dr F it is important that all parties, including the father, acknowledge that the children’s relationship with their mother is a relationship with their mother as she is, including as a person who has had a diagnosis of a serious illness and who has had to adjust her life in fairly significant ways to manage that illness. It is not a benefit to the children to try and limit their relationship with their mother to times when she is not displaying any symptoms of her illness.
The benefit to the children is to be given the ability to know their mother and to be with their mother in her fullness.
Best Interests - conclusions
The mother was the children’s primary carer until separation. She accepts that as the children have now lived with the father for about three years since separation and in circumstances where the father has refused to facilitate time with her for lengthy periods, which have been set out earlier, the children have settled into the father’s primary care. She is not seeking to disrupt that for the children in the immediate terms and seeks a gradual increase in their time with her.
X is now nearly 13 years of age. Y is 9. They are not infants. If they receive age-appropriate education about their mother’s condition, they can learn not to be frightened of her behaviour if her mental health declines. Whilst they ought not be responsible for their mother’s care, they can with time and support, learn that her illness is just that - an illness. As with a person who has a chronic physical illness, for example, and who may from time to time need to be hospitalised or may need additional support to meet the challenges of daily living, their mother may need that support as well.
Having said that, I accept that given the history of this matter, any increase in the children’s time with their mother will be a significant change for them. Any such increase will need to be carefully managed not to overwhelm the children or the mother.
In considering orders which provide for the children’s safety, it is also necessary to consider the risk to the children’s psychological wellbeing of the restrictions the father has placed on the children’s time with their mother since separation. Without being critical of him, it is evident that the father has struggled to come to terms with the mother’s declining mental health. He has sought to deal with this by seeking to be the gatekeeper of when the children spend time with the mother and has placed himself in the role of determining whether the mother is sufficiently well to care for the children. It is not clear to me on what basis he believes that he is qualified to do so.
Dr F noted that the children have clearly picked up on the father’s anxiety about the mother’s mental health. Notwithstanding this observation having been first made by Dr F in 2023, the father has not taken any steps to educate himself about the mother’s condition nor has he sought psychological support to help him to not only manage his own responses to the mother’s condition, but perhaps more importantly, to help the children to understand and manage their concerns about the mother’s ill health.
The mother has proposed a mental health safety plan that she has indicated that she would be prepared to comply with until both children reach the age of 18. The father has raised concerns about whether some, if not all, of the proposed safety plan could be included as formal orders in this matter. The father has also submitted that the safety plan has largely already been implemented and has not been effective. This misunderstands, with respect, the purpose of the safety plan. The safety plan is not intended to, nor could it, cure the mother or prevent future episodes of ill health. Rather, the safety plan is intended to put in place structures to support the mother to respond to any decline in her mental health and, if the need arises whereby the mother becomes so unwell that she is unable to care for the children, it provides a mechanism for the children to be cared for until such time as the mother has responded to treatment and is again able to care for them.
Having had the benefit of observing the mother in the witness box over the better part of two days, I accept that her intention is to continue to adhere to the safety plan. It is clearly in the mother’s interests to do so in circumstances where the steps outlined in the safety plan will support her mental health and will ensure that the children are cared for at times when the mother is not able to care for them herself due to a serious decline in her mental health.
In addition, I have had the benefit of hearing evidence from the maternal grandfather. I find that he is very supportive of her and has demonstrated his ability to supporting their daughter in the years since her initial episode in 2019 and since her separation.
I accept the maternal grandfather’s evidence that he is prepared to continue to supervise time with the children as required for as long as is required.
I am not satisfied that the father’s proposal is in the children’s best interests. It unduly limits the children’s time with their mother. It does not allow them to have a full relationship with her allowing her to be involved in parenting them, including by being involved in their day to day lives, at school, with their friends and in their extra-curricular activities.
The mother conceded that the progression of time in her proposed orders might be too fast, particularly in circumstances where the overnight time prescribed in the May 2024 orders had not progressed as intended.
On balance, I find that it is in the children’s best interests for orders to be made which provide for a slightly more gradual increase in the children’s time with the mother than that proposed by the mother. The May 2024 orders provided for one overnight with the mother. That should increase to two overnights per week for three months and then to three nights per week for a further three months. Thereafter the children’s time with the mother should progress on a graduated basis to a final position of five nights per fortnight with the mother. The increase in time provided for in the orders as the time moves to unsupervised time is gradual to allow both the children and the mother time to adjust to the new arrangements.
I find that the children’s time with the mother should continuing to be supervised by the maternal grandparents (or either of them) for a period of 12 months. That will provide the children with some comfort as they transition to spending regular overnight time with the mother again after a significant absence. It will also provide a reasonable period of time in which the children can get some psychological support and education about their mother’s condition to demystify it and to help them to understand her behaviour at times.
I also propose that orders be made for the children to spend time with each parent for half school holidays and on special occasions, again to be supervised by the maternal grandparents for the first 12 months.
I find that it is in the children’s best interests for the orders to reflect the safety plan proposed by the mother, save for the mother’s proposed order 14(e) and 20. The mother’s evidence is that she intends to continue to follow the safety plan until the children both reach the age of 18 years. In those circumstances, I find that it is in the children's best interests to include the safety plan as parenting orders in so far as that plan will facilitate the children’s safety whilst in the mother’s care.
The mother’s proposed order 14(e) is not necessary in light of the mother’s proposed order 19(a) which provides that if the mother is hospitalised or otherwise unable to care for the children, she is to arrange alternate carers for the children and if she is unable to do so, then she is required to return the children to the father’s care.
The father objects to order 20 on the basis that it purports to delegate a judicial function to a medical provider, namely to determine whether the mother is able to care for the children.
It is in the children’s best interests to avoid the possibility of ongoing dispute between the parties in the future. It is apparent from the manner in which this proceeding has progressed that the father has seen it as his role to determine the mother’s fitness to care for the children. Placing him in this position in the future is likely to lead to further disputation and is not necessary for the protection of the children.
The orders proposed by the mother provide that each parent is at liberty to arrange alternate carers for the children. The father’s evidence is that he is assisted in the care of the children by his family. The mother has also been assisted in the care of the children by her parents. There is no evidence that the children have been placed at risk in the care of either the maternal or paternal extended family.
The maternal grandfather has indicated that he will continue to support the mother in caring for the children. I accept that evidence. I therefore find that an order that the mother (and the father) are each able to arrange alternate care for the children from time to time will allow the mother to ensure that the children are cared for if she becomes unwell. This is no different for example, to a situation where the father become unwell for an extended period of time due to an illness or injury. One would expect that he would make the necessary arrangements for the care of the children during his recouperation. The mother, who has the active support of her family, should be permitted to do the same.
If the mother is hospitalised, she agrees that she will not be able to care for the children. During any such period, the orders I propose making will therefore allow her, in the first instance, to make alternative arrangements for the care of the children, and if that is not possible for her to return the children to the care of the father until such time as she is discharged. On her discharge, the orders will resume in the ordinary course. Again, the expectation is that if she required additional assistance to care for the children on her discharge that she has the ability to organise that care with her family or otherwise.
Similarly, if the mother is otherwise unwell and unable to care for the children and she returns them to the father’s care, there needs to be a mechanism for the children’s time with her to resume which does not involve the father being placed in a position where he is the one determining whether she is well enough to resume the care of the children. In circumstances where the mother has demonstrated insight into her condition, and in circumstances where she has demonstrated that she is actively seeking and following medical support, the appropriate course is to allow the children’s time with her to resume upon her advising the father in writing that she is well enough to have the children in her care. The mother has demonstrated an ability to act in a child focussed manner and I find that she would only do so once she has recovered sufficiently to care for the children.
The mother seeks various injunctions which appear to be appropriate in the circumstances as they relate to non-denigration, discussing the proceedings and the administration of physical discipline. I am satisfied that these injunctions are appropriate in all the circumstances.
The mother also seeks orders for the parties to participate in ‘reportable family therapy’. It is not clear to whom such therapy would be reportable. In circumstances where family therapy was first recommended by Dr F back in 2022 and the parties have not engaged in it voluntarily, I am not satisfied that an order directing them to participate would be of benefit. It would be preferable for the father to seek some support individually to help him to understand his own feelings about the mother’s mental ill health and to better understand her condition and how he can support his children in their relationship with her.
I therefore do not propose making an order for the parents to engage in family therapy. In coming to this view, I am also mindful of the fact that the mother will continue to engage with her own psychiatrists and health providers, and I do not wish to further burden her with an obligation to attend upon a separate therapist.
Of course, it is always open to the parties to seek this type of assistance voluntarily if they believe that they will benefit from it in the future.
The mother seeks orders for the children to attend upon counselling to assist them. Given the history of this matter, the impact of the disruption to the children’s relationship with their mother as a result of the breakdown of the parent’s relationship and the impact of her mental ill health, I think such an order is in the children’s best interest to assist them to process all that has happened.
Other matters
The mother has also sought orders that preclude either parent providing a mobile phone to Y without the other parent’s written consent. No specific evidence was led in support of this order nor were any submissions made. It is not clear why this order is required and I am not satisfied that it is warranted.
The mother also seeks orders for the parties to obtain passports for the children and to permit international travel. No specific submissions were made in relation to these proposed orders by either party. Given that and the fact that the key focus of these proceedings was on the time that the children spend with each parent, I am not satisfied that these orders ought to be made.
CONCLUSION
For each of these reasons, I make the orders set out at the commencement of these written reasons.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 30 January 2025
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