Mahlee and Mahlee

[2020] FamCA 232

FAMILY COURT OF AUSTRALIA

MAHLEE & MAHLEE [2020] FamCA 232

FAMILY LAW – PARENTING – where the child requires high levels of specialised and intensive care – where the child currently resides with the father – where the mother agitates for a change of residence on a final basis – where the child will turn eighteen years shortly after a final hearing could be listed – where the father intends to apply for adult guardianship orders through a State tribunal – where the Court finds little benefit in listing the proceedings for final hearing in the circumstances.

Family Law Act 1975, s.65H
Guardianship and Administrative Act 2000

Mahlee & Mahlee [2018] FamCA 1065

APPLICANT: Mr Mahlee

RESPONDENT: Ms Mahlee

FILE NUMBER: BRC 9381 of 2018

DATE DELIVERED: 14 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 14 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ogge Law

COUNSEL FOR THE RESPONDENT: Mr M Anderson

SOLICITOR FOR THE RESPONDENT: Indigo Law

INDEPENDENT CHILDREN’S LAWYER: Ms A Gomes
Legal Aid Queensland

Orders

1. That the mother’s Application for a priority trial listing of these proceedings be dismissed.

2. That any application to vary the current interim Orders between the date of these Orders and 12 September 2020 are, if possible, to be listed before the Honourable Justice Baumann.

3. That the father shall, within fourteen days of so doing, file an Affidavit in this Court setting out and attaching any application brought by him under the Guardianship and Administration Act 2000 (QLD) as he indicated is his intention.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am on 16 September 2020 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahlee & Mahlee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9381 of 2018

Mr Mahlee

Applicant

And

Ms Mahlee

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. It is trite to say that the Family Court of Australia, and other courts exercising federal jurisdiction under the Family Law Act1975 (“the Act”), have to, at times, deal with tragic circumstances and tragic cases.  In my experience, however, this case falls within that category of most sad cases.

2. To provide some context for the dispute which I am now required to deal with, I restate what I said in Reasons delivered 11 December 2018 by way of background (see Mahlee & Mahlee [2018] FamCA 1065):

   “1. X (the child) is aged 16 years and since August 2017 had chosen to live independently of her mother and father.  She did so in the Region D area of New South Wales and continued to attend a local high school.  She lived at that time with the family of her then boyfriend.  The evidence suggests that at different times and in different ways (but usually by text message) the child maintained contact with both her parents.  The mother was at that time residing in and around E Town and the father at F Town in Queensland.

   2. The parents have a poor relationship and have been separated since 2011.  The child has an older sister Ms G now aged 18 years.  Ms G and the father say the sisters have a close relationship.  Since separation, the child primarily lived with her mother and sister, although at times the girls lived also with the father for periods.  The mother is a firm believer in a healthy lifestyle, shaped by organic food, yoga and other holistic (some might describe alternate) activities.

   …

   4. Sadly, it seems, for whatever reason, the child’s mental health began to deteriorate from late 2017 and in January 2018 she was admitted to hospital with a kidney infection and diagnosed with anorexia, subsequently moving to a special mental health unit at H Town Hospital.  She was suffering from depression; was medicated; being discharged from hospital in February 2018 and then chose to return, albeit briefly, … to live with her father.  She was, during that short period, assessed at the J Hospital.  Shortly after she elected to return to the Region D area and she recommenced school at grade 10.  I note that she chose at that time not to live with her mother who was in the area.

   5. A combination of events, including, it seems, some information about her boyfriend beginning a relationship with her best friend, so distressed the child (still at that time very vulnerable) that she was again admitted to a hospital.  Shortly after admission, it is not disputed that the child attempted suicide by hanging herself in the hospital.  The asphyxiation, which lasted for some 20 minutes or so, caused an HEI, culminating in the onset of spastic quadriplegia and hypotonic symptoms.  She was ultimately taken to the B Hospital in Brisbane in May 2018 for intensive and specialised care.  She remains in hospital at this stage.”

3. That tragic history sets the scene up until December 2018.  What occurred thereafter was that, on or about 22 January 2019, the Court was informed that the child had left hospital and had been placed, with the support of medical staff, in the care of the father living in Queensland.  The father has re-partnered and his new partner plays a role, as well.  As a result, on 22 January 2019, over 12 months ago, the Court made orders that provided for the child to spend time with the mother whilst living in the care of the father.  The Order of 22 January 2019 has not been the subject of any appeal or review.  The effective arrangement made at that stage, and still, I believe, on the evidence before me now, continuing, is that the child shall spend time with the mother at the home of the father, unless otherwise agreed between the parents, each Monday, Wednesday and Friday, between 10.00am and midday.

4. When the matter came before a Registrar of this Court on 14 May 2019, by consent the Orders made 22 January 2019 were to remain in place with, amongst other orders, the following additions, namely:

   a)The mother was at liberty to brush the child’s hair and paint her nails; and

   b)In addition to the time outlined in the previous Orders, the child will spend time with the mother, as agreed between the parties’ prevailing agreement on Mother’s Day and the mother was at liberty to attend the child’s hydrotherapy session once per week with the hydrotherapist;

   At that time, the Registrar ordered that the matter be placed in the trial list, awaiting allocation of a trial judge, and noted that the parties had a trial estimate of three to four days, and further noted also the number of witnesses who would be engaged in the matter.

5. The matter remained in the trial pool until the matter was removed from the trial pool and brought into my docket with a Case Management Hearing on 28 November 2019.  At that time, I was informed, and the evidence that has not changed before me confirms, that, sadly, the child’s condition has not improved.  In fact, a new medical report by Speech Pathologist, Ms P, filed by the Independent Children’s Lawyer (“ICL”) on 5 December 2019, confirms that the child continues to have difficulty swallowing and requires, it seems to me, almost constant care.  She is not verbal, although she is aware of her surroundings.

6. In this case, since the matter first came to my attention, as I say, in 2018, the mother has maintained a position that is in the child’s best interests, including an improvement in her mental and physical health, that either the child live with her or that there be much more extensive time spent between the mother and the child.  Nonetheless, it seems to me that neither party have, since the Orders referred to above (other than for the Order made by the Registrar in May 2019), brought any application to vary the interim Orders made by me in January 2019.  Such an application, of course, would need to be supported by some evidence that there has been a change in circumstances.

7. I acknowledge at this point, as I did in my Reasons delivered on 11 December 2018, that the mother feels that she is being unfairly treated by health officials and by the father.  She is strongly of the view, which she is entitled to hold, that the child’s wellbeing will be improved by her greater involvement.  When the matter was placed onto the list of matters awaiting allocating from the trial pool, I accept that the parties had no real opportunity to do anything until a judge took it into their docket.

8. As I indicated, when the matter came into my docket on 28 November 2019, and being acutely aware of the history, as is apparent, I engaged with the parties then about the utility of having a final trial in this matter.  My Order of 28 November 2019 had certain notations and required the parties to file submissions.  I have identified today those written submissions, which I have read and considered.  I have also had the benefit of some brief oral submissions by Counsel for the mother, Mr Anderson, and by Ms Ogge, solicitor for the father and Ms Gomes, the ICL.

9. I regard the framework for my decision to be the discretion which resides in the Court, as part of its inherent case management powers, whether the matter should be listed for a hearing or not. It is not disputed that any parenting order ceases to have effect upon the child’s eighteenth birthday (section 65H of the Act). X turns 18 on … 2020. I have already indicated that this trial, if it was expedited, could not receive a hearing before 30 June 2020. Even allowing for a reasonable time to deliver a judgment, any final orders were unlikely to have an effect for more than a month or two.

10. However, the submissions made clear that an alternate jurisdiction will be available to make decisions for what will be the much longer management of X’s needs into the future as an adult.  The submissions of Ms Ogge, on behalf of the father, identified that a process is available in Queensland under the Guardianship and Administrative Act 2000. That allows the Queensland Civil and Administrative Tribunal (“QCAT”) to make orders to appoint a person to assist adults with impaired decision making capacity to ensure the adult’s needs are being met and that their interests are being protected – see section 12 of the Guardianship and Administration Act 2000 QLD.

11. I am satisfied that an application can be made by a person claiming to have an interest in the welfare of a person who is to become an adult by way of an advanced appointment application for a child aged 17 and a half or older, with such orders, made by QCAT, to take effect when the child turns 18 years (see section 15 Guardianship and Administration Act 2000).  At paragraph 27 of the father’s submissions, the criteria to be applied for an advanced appointment are set out.  One of those is that there is a reasonable likelihood for the child to have impaired capacity when she turns 18, and further that there is a reasonable likelihood that, without an appointment, the needs of the person could not be adequately met or the interests would not be adequately protected.

12. The state of the current medical evidence is that there is, sadly, little chance – although hope always springs eternal – that there will be an improvement in X’s capacity between now and September this year.  The father has, through his solicitor’s submissions, indicated, at paragraph 28 of those submissions, that the father, as her primary carer, will be making an application for an advanced appointment for guardianship and administration in March 2020 by filing a Form 10, being a financial management plan for proposed administrators and a medical report.  In broad sense, the ICL supports the father’s position that, effectively, there is no utility in having a trial of these proceedings.

13. I should mention that, of course, one of the aspects in the matter, which the Court is entitled to take into consideration, is not only the best interest of the child, but the fact that the father, who is unaided by Legal Aid (unlike the mother and, of course, the ICL), would incur significant costs from his own funds in relation to preparing for and appearing at a trial.  An estimate was given in his solicitor’s submissions.  It is trite to acknowledge that any such funds might be better spent on the care of the child, rather than the legal costs for a trial which would have such limited effect in a legal sense.

14. The considered submissions in writing of the solicitor for the mother, supported by her Counsel, Mr Anderson, today, explain to the Court, as the Court understands, the structure of section 60CC of the Family Law Act as follows:

    “(3) The honourable court, with the assistance of ICL and other experts, family and medical reports, is the best equipped to make findings as to what is in the best interest of X, who is vulnerable and unable to convey views upon which the court can draw assistance.

    (4) Although, albeit it conceded the Queensland Civil and Administrative Tribunal, exercising its jurisdiction pursuant to the Guardianship and Administration Act 2000 Queensland, has jurisdiction, to consider the appointment of an adult guardian at this time, this honourable court ought to … determine parenting orders, adopting the pathway prescribed by section 60CC of the Act, in considering the best interest of X.

    (5) It is respectfully submitted that findings of the honourable court on issues such as parenting attitudes and capacity for e.g. would, it is submitted, greatly assist QCAT, and thereby advance the best interests of X, moving forward into her adulthood and the provision of her care.”

15. I have considered those submissions.  In my view, in the exercise of discretion, it is not appropriate or proper for this trial to be expedited at a significant cost to the public purse and at significant cost to the father who is currently the primary carer of the child (although, it seems, with some benefits being received from NDIS), when the effect of any trial, even if a final decision was available by the time the child turned 18, being of limited, if any, impact.  I am not satisfied that QCAT would in any way be bound by this Court’s determinations of “parenting” or assessment of the medical evidence, but even if findings of a superior court of record, as is the Family Court of Australia, would be persuasive, the context and longitudinal nature of any orders to be made under the State law is in a quite different context than determining parenting capacity of an adult child.

16. For these reasons, I will not list this matter for a trial before the child turns 18.  In making this decision, I turned my mind to, and sought submissions from the parties, as to the need for there to be ongoing interim orders.  All parties agree that it would not be appropriate for there to be a lucunda in arrangements, that could be enforceable, that have been prescribed by this Court t be in the best interests of X and are reflected in the Orders currently in existence.  I agree, and as a result, I have taken the view that what should occur is that those current interim Orders, being parenting Orders which will, in effect, cease on her birthday, on … 2020, should remain in full force and effect.

17. Of course, there being an interim Order in existence, either party may bring an application to vary those Orders.  However, I forewarn the parties that any such variation would need to be supported by reliable, clear and probative evidence, not that the parties wishes have changed (for in my view, they probably have not), but rather that is in the best interest of the child to vary the Orders based on sound medical or other evidence.

18. It is, of course, a comfort to this Court that the parties were able to find an agreement to vary the interim Orders made in January 2019 to provide for further interaction between the child and the mother.  Between now and September 2020, there may be other opportunities to refine some of those arrangements.  However, if there are to be any substantial changes to the current interim orders, and applying the principles that have been enunciated in such cases as Rice & Asplund (1979) FLC 90-725, then the Court can, on an interim basis, consider variations. Any such applications for variation should be listed before me.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 14 February 2020.

Associate:

Date: 29 April 2020