MAHLEE & MAHLEE

[2018] FamCA 1065

FAMILY COURT OF AUSTRALIA

MAHLEE & MAHLEE [2018] FamCA 1065

FAMILY LAW – CHILDREN – Interim Parenting – where there are current orders for the teenage child to live with the father and the father to have sole parental responsibility – where the child is currently receiving intensive hospital care – where the mother seeks the child live with her upon the child’s discharge from hospital – orders made in the best interests of the child for supervised time with the mother in hospital pending release from hospital.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Mahlee

RESPONDENT: Mr Mahlee

FILE NUMBER: BRC 9381 of 2018

DATE DELIVERED: 11 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 10 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Bertone

SOLICITOR FOR THE APPLICANT:	Indigo Law
SOLICITOR FOR THE RESPONDENT:	Ogge Law

INDEPENDENT CHILDREN’S LAWYER:

Ms A Gomes

Legal Aid Queensland

Orders

1. The mother be able to spend time with the child, X born … 2002 (“the child”) for two (2) hours a day under the following conditions:

   (a)All visits shall be in the presence of an appointed supervisor;

   (b)The commencement of visits shall be as set out by the hospital medical staff, they being aware of the optimal time for visits based on the child’s treatment, medication and responsiveness;

   (c)The mother shall immediately comply with any direction given by any hospital staff member, including nurses, to cease the visit;

   (d)The mother is able to hold the child’s hand; and

   (e)Other than holding the child’s hand, the mother is not to engage in any other touching, massage or alternate healing strategies during such visits.

2. That in the exercise of his sole parental responsibility, the father shall authorise the B Hospital and any health professional treating the child to provide the mother with such information as that health professional regards as appropriate for a parent to receive.

3. That pursuant to s.121 of the Family Law Act 1975, the Independent Children’s Lawyer be granted leave and shall provide to Mr C and the B Hospital a copy of the Reasons for Judgment delivered orally 11 December 2018.

4. That these proceedings be removed from the Magellan list pathway.

5. That the Independent Children’s Lawyer be at liberty to apply on an urgent basis in respect of where the child lives upon the child being discharged from hospital.

6. That these proceedings be adjourned for Case Management Hearing at 10.00am on 14 December 2018 in the Family Court of Australia sitting at H Town.

7. That all parties be granted leave to appear by telephone on 14 December 2018.

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

Ms Mahlee

Applicant

And

Mr Mahlee

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

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 Region D 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. 

3. Whilst both parents now assert deficits in the other parent’s capacity and attitude to parenting, since separation it seems no court intervention has been activated by either parent prior to these proceedings commencing.  The father says in 2016 the child attempted suicide by “stepping” in front of a car.  However, it seems that the child was particularly engaged in dance activities and continued at school during 2016 and 2017.  In May 2017, she self-funded a trip to the United States with her dance group.

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 the Gold Coast to live with her father.  She was, during that short period, assessed at the J Hospital.  Shortly after she elected to return to Region D 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.

6. The appointed Independent Children’s Lawyer (“ICL”), despite, I am satisfied, every reasonable endeavour, has been unable to secure and place before the Court more than snippets of medical reports from her treating health professionals.  This is, it seems, because, as the email of 14 November 2018 explains:

   It is not the CHQ procedure for clinicians to provide reports in relation to Family Court proceedings.

7. Whilst I can understand that such protocols have their place, in the circumstances of this unusual case the Court would have benefited from a clear statement from the treating physicians as to the child’s current condition and prognosis.  At best, it seems, although a plan has been discussed for allowing the child to be discharged into her father’s care in Queensland, the timing of such release is uncertain and depends, understandably, on the assessment of the child’s doctors as to when it is appropriate.  In that regard, a recent “final” report note tendered by the ICL yesterday reveals the father and his wife Ms K have been involved with discussions as to the available support for the child from NDIS and other health professionals in the rehabilitation and/or palliative care sectors.

8. As a result of these uncertainties, all parties yesterday agreed that the matter will need to be relisted before me as soon as possible after the child is released by the hospital.  As a result of the orders made by Judge Turner on 20 August 2018 (on the father’s application) the child is initially to live with the father and he has an order for sole parental responsibility.  Although the mother was present when that order was made, and whilst it is noted the order indicates it was made by consent, I accept the submission of Ms Bertone for the mother that, the order having been made without any evidence from the mother, the Court is not ultimately precluded from revisiting the issue of where the child should live and what time the other parent should spend with the child.

9. Hopefully when the Court is requested and able to do so, some helpful medical evidence might be available, as in this case the best interests of the child are significantly shaped by supporting her medical advice designed to help her recovery.  It is not even clear what level of recovery is possible and what the long term effects of the incident on 15 May 2018 are likely to be.  Furthermore, it is impossible to know what feelings, views or wishes the child might have.  In this respect, for any 16 year old child, their views are a highly relevant factor (see section 60CC(3)(a)).  However, the weight to be applied to such views may well depend on the level of the child’s cognitive impairment.

10. The issues at this stage which I am required to decide are narrow but important, namely:

    a)whether the order for sole parental responsibility to the father made by Judge Turner should be varied to, as the mother seeks, an order for equal shared parental responsibility.  The mother believes that such a change will enable her greater access to medical information which she says she is not currently receiving; and

    b)in the circumstances where the mother has only spent one short hospital contact with the child since 20 August 2018, whether there should be an order for the child to spend time with the mother.

Parental responsibility

1. It is clear on the evidence that not only do the parents have a limited ability to communicate, but they have and hold different views about some aspects of the child’s medical care.  The father, a security officer by occupation, accepts with little challenge the medical evidence and advice he receives.  He has a confidence in the care offered by the B Hospital.  He has developed a line of communication with the doctors, but also Ms L, the social worker assigned by the Paediatric Rehabilitation Service to the child’s case.

2. The father (and the ICL) rely upon the email (cryptic though it is) from Ms L to the father of 1 November 2018 to suggest a position of no visits by the mother to the child while she remains in hospital.  I am satisfied at this time that the father should retain sole parental responsibility but that, to avoid doubt, he should be required to specifically authorise the hospital to keep the mother informed of the child’s condition and prognosis whilst in hospital.  The Court is confident, with an eye to their primary duty to the child’s physical and emotional wellbeing, the staff and clinicians at the hospital will provide what information they deem appropriate to both the mother and the father.

3. It seems, since admission, some arguments between the mother and staff may have occurred.  I am unable, on an interim basis and during the course of this truncated hearing, to form any view as to the context for those arguments.  I do not discount the mother’s strong beliefs in alternatives to “Western medicine” might be a factor.  The mother in her Affidavit claims that with her absence and without “regular massage and hands-on physiotherapy” the child’s condition is deteriorating.  There is nothing to suggest that the mother is a trained physiotherapist.  The mother also says she was “given permission to do healing work for the child”.  I am not able to be so satisfied on the evidence to date that either of these statements by the mother are correct.

Time with the child whilst in hospital

1. The absence of any reliable and probative medical evidence makes this issue difficult.  The ICL and the father say that there is a risk to the child’s progress if the mother was to spend time with the child, even supervised.  The mother’s beliefs and to some extent the recommendation of Ms L that:

   …Of course, I would NOT be supporting an increase in visitation for many reasons that I would out line to the child’s lawyer they include:

   history of interference with medical treatment;

   intimidation AND threats made to staff;

   intimidation and threats made to other visitors;

   previous history of concerning interactions in the child’s vulnerability;

   inability for hospital staff members to be supervisors on access visits.

   are relied upon by the father and the ICL.

2. This letter from Ms L, which has been given some context by the father’s letter previously, which was sent to the Court after we had completed submissions yesterday, is relied upon by the ICL and father.  It was marked Exhibit 4.  Reliance is placed on the Magellan report to support a concern that the mother has acted inappropriately (and in a sexualised manner) with the child, when she was observed on 20 June 2018 and it was reported to the Queensland Police Service that:

   Mother has been seen to be touching the victim child in what is believed to be an indecent manner as the suspect is a believer in tantric sexual healing.

3. The staff apparently regarded the mother’s behaviour as unpredictable.  However, after assessment by Suburb M Department of Child Safety and Queensland Police, commencing 5 July 2018 (involving interview of certain staff at the hospital, not named in the report but apparently interviewed) on 9 August 2018 the police recorded their conclusion in these terms:

   There is no evidence to suggest the suspect mother is committing offences against [the child], [the child] is unable to communicate at all and there are no orders in place about custody of [the child].  [The child] requires constant care and requires to wear a nappy as she has no bladder control and has bodily functions of a newborn child and, therefore, requires her anus and vagina to be cleaned by the person in charge of her care.  Therefore, the normal rules surrounding assaults/touching are null and void.  The suspect mother may be given full-time care and custody of [the child] which would require her to clean and wash and maintain her genital area, insert medications and sanitary items.  With this in mind, the reporting officer recommends that there is no evidence available to prove a charge to a sufficient standard for a court proceeding.

4. I note that this summary by the police set out now in Exhibit 3 is also based, it appears, on a report of the child safety officer, also contained in Exhibit 3 that:

   The mother provided reasonable explanations for the alleged behaviour and there was no sexual element to her behaviour.

5. In my view, this evidence, consistent with the sworn evidence of the mother in her Affidavits even on an interim basis I doubt that the mother is a risk to the child of sexual abuse.  This persuades me that these proceedings should be removed from the Magellan case management pathway, and I will ensure that that occurs.

6. Nonetheless, a very difficult interim parenting issue still remains in the Court for determination.  I note the mother says hospital staff told her that the child had called out “Mum”.  The mother, not surprisingly, sees this as a call for her.  I cannot discount that is possible, noting that for most of the child’s life the mother has been the primary carer of the child.

7. On balance, notwithstanding the submissions of the ICL Ms Gomes and the father’s solicitor Ms Ogge, I believe it is in the child’s best interests to have some, albeit limited, contact with the mother, but not unsupervised and not to the level of six hours a day for five consecutive days, as sought by the mother.  I accept Ms Bertone’s contention that the mother sought such extensive time, seeking to have as much time as possible and conscious of the father’s non-availability because of his current full-time work commitments.

8. I do not know how long the father and/or Ms K and Ms G are able to spend time with the child each day.  I accept that it is better that there be no clashes in visits at the hospital as this could be distressing for the child, such is the current acrimony that exists, including, it seems, between the mother and her older daughter Ms G who has now returned from an overseas holiday.  I cannot order, nor is it in any event appropriate, for hospital staff to supervise the mother’s visits.  Their focus must remain on managing the child’s care and, I suspect, other patients, as she is now in a general ward and no longer in the Intensive Care Unit.

9. The mother, during close of submissions yesterday, offered as a supervisor - noting the mother contended no supervisor was necessary - a Mr C, who deposes in his Affidavit sworn yesterday to being a Chaplain.  I indicated that the ICL should try, if possible, and contact Mr C and assess whether he might be a suitable person to be present when the mother spends time with the child.  If he is, and also subject to medical staff being entitled to stop any visit at their discretion, I propose to order that the mother be able to spend time with the child up to two hours a day on the following conditions:

   a)Her visits shall be in the presence of an appointed supervisor;

   b)The commencement of visits shall be as set out by the hospital medical staff, they being aware of the optimal time for such visits, depending on the child’s treatment, medication and responsiveness;

   c)The mother shall immediately comply with any direction given by any hospital staff member, including nurses, to cease a visit;

   d)The mother is able to hold the child’s hand; and

   e)Other than holding the child’s hand, the mother is not to engage in any other touching, massage or alternate healing strategies during such visits.

10. This child was, sadly, near death.  She is still highly vulnerable.  However, I cannot discount the possible benefit therapeutically for the child that arises from her being close to and at least aware of the presence of people who love her and positively care about her.  The father, the mother and Ms G are all such persons.  There are likely to be others, but I am satisfied that the father, with guidance from hospital staff, can manage other visitors until the child is released from hospital into his care.

11. I propose to order that the father authorise the hospital to provide such medical reports that the father in the exercise of his sole parental responsibility shall authorise the B Hospital and any health professional treating the child to provide the mother with such information as that health professional regards as appropriate for the mother to receive.

12. I pronounce the orders that appear at the commencement of these Reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 December 2018.

Associate: 

Date:  13 December 2018