Mori & Brice
[2023] FedCFamC1F 1040
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mori & Brice [2023] FedCFamC1F 1040
File number(s): BRC 11254 of 2021 Judgment of: BAUMANN J Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Where the matter was today listed for final hearing – Where the mother had unilaterally ceased time between the children and the father since September – Where by October the Department had formed the view the children did not need protection from the father – Where the mother was not candid in her evidence as to her recent challenges – Order made for the children to immediately spend continuous time with the father Legislation: Family Law Act 1975 (Cth) s 68B Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 16 November 2023 Place: Brisbane Counsel for the Applicant: Ms Y Chekirova Solicitor for the Applicant: Cornerstone Law Offices Counsel for the Respondent: Mr S Casey Solicitor for the Respondent: Jurgensen Horne Lawyers Counsel for the Independent Children’s Lawyer: Mr J Ashcroft Solicitor for the Independent Children’s Lawyer: Keyworth Harris & Lowe Family Lawyers ORDERS
BRC 11254 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MORI
Applicant
AND: MR BRICE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders are suspended.
2.That the children, X born 2017 and Y born 2019 (“the children”) commence continuous time with the father, from 6.00pm on 16 November 2023.
3.That changeover shall occur on 16 November 2023 at 6.00pm at Suburb B McDonalds with only the mother and father to be present.
4.That the mother be permitted to contact the children by way of telephone or video call each Sunday and Wednesday at 6.00pm, unless otherwise agreed, with the mother to initiate the call.
5.That pursuant to s 68B of the Family Law Act 1975 (Cth) the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from school, childcare, home or the father’s care until further order of the Court.
6.That these proceedings be adjourned for Interim Hearing at 1.00pm on 24 November 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That pursuant to r 6.27 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth), the Independent Children’s Lawyer be granted leave to issue more than (5) subpoenae in these proceedings.
8.That the Independent Children’s Lawyer be at liberty to apply on 17 November 2023 in the event the children are not placed in the father’s care on 16 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mori & Brice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X, who is now six years of age, and Y, who is four, are the children of a relationship between two quite young parents, the mother Ms Mori aged 24 years and the father Mr Brice aged 25 years. The relationship commenced at school while they were still in their teens. They had an on and off relationship commencing from 2016. The relationship, as I said, had periods of separation, reconnection and then separation again. Nonetheless, the parties entered consent orders in February 2018. However, the orders were not put into effect because, after those Orders were made by consent, the parties reconciled. Y was born and other events took place in this young couple’s life before final separation occurred in March 2021, a mere two and a half years ago.
Shortly after separation, the father commenced and is now in a committed relationship with Ms C, who herself is a young parent with a six-year-old daughter from an earlier relationship who is part of the father’s household. The mother has re‑partnered as well. Her partner, Mr D, is of a similar age to the mother and it seems that, although their relationship commenced in mid-2021, the mother and the children only moved into the home that he owns, in early 2022.
I observed earlier today, when the full extent of recent difficulties became obvious to the Court for the first time really, that this young couple have, notwithstanding a lack of consistent and mature support through their life, done a reasonably good job co‑parenting these two children. That they have done so in circumstances where X was diagnosed shortly after birth with a serious illness, which he thankfully is now in remission, and where Y has also some speech challenges, and despite conflict which arose from time to time which resulted in protection orders and the like.
After the interviews by Court Child Expert Ms E in June 2022 and the family report was released in July 2022, I had every indication in this matter that the parties were in fact, no doubt with the help of Ms Keyworth, a highly experienced Independent Children’s Lawyer who has devoted much time to this case, narrowing the issues very significantly since the report was available.
On 22 November 2022, I made orders, by consent, on an interim basis that removed any obligation for hair follicle testing of the father; provided for the children to live with the mother; for the parties to have equal shared parental responsibility and for the children’s time with the father to be alternate weekends from Friday to Monday and half the school holidays and special days.
I kept pressing this young couple to understand the difficulty, and distress of a trial, and urged them to try and find a solution. Despite lots of encouragement and support, they were unable to do so, such that I listed the matter for trial in the March 2023 trial callover. At that stage, I was aware that the mother was pregnant and due to give birth to the child of her relationship with Mr D. To complete the picture, the father and Ms C are also to be blessed with a child of their relationship, somewhat imminently, it would seem.
I was, of course, aware of some of the mother’s earlier difficulties with her mental health. There was evidence before the Court of a diagnosis of a medical condition in 2020, which has been at least reviewed to some degree in March 2022, such that she now has a driver’s licence with some conditions of which I am unaware, but nonetheless hopefully enables her to lawfully drive.
When the trial material, although late, was filed, although the mother’s late affidavit referred to some events opaquely that have occurred since September 2023, the mother’s case outline document ultimately filed on 13 November 2023 (namely four days ago) identified some very real issues that had occurred since the matter had been listed for trial. The effect of those issues was that the children had not spent time with their father since September. That was, of course, inconsistent with the orders of the Court. Even though the mother had legal representation, no application was ever made – it seems to me sadly – seeking to suspend the current Orders. The mother said she was reliant upon advice from the Department of Child Safety, Seniors and Disability Services (“the Department”). I am not sure that is true, but even if it is, the effect has been that these children have now had over two months of no time with their father when they ought to have spent time with him including half of the September school holidays.
The reasons why the mother said she acted protectively and unilaterally ceased time, was because of what she says was a version of facts given by Y relating to the father using a knife on her and cutting her. It is hard to think of a more serious allegation, although I have heard them, but in the circumstances of this case, a very surprising one. The mother, appropriately, engaged Police and the Department. Both children were the subject of a s 93A interview. The lawyers at the bar table tell me today, for I have not yet read it or seen it, that no disclosures are made really by Y or X in those circumstances. The Department by early October 2023 had formed the view that there was nothing of concern that required the child to be protected from the father.
Nonetheless, the mother took no steps, sadly and without explanation, to return the children to the arrangement that had been of long standing, spending time with their father. That event itself would have been sufficient to cause concern and further inquiry. However, what is also apparent now from the tender documents (a small bundle prepared by the Independent Children’s Lawyer and marked today as Exhibit 1) is that there are other events that the mother has been less than candid about. She has for some part of this year, after her hospitalisation in early 2023 at F Hospital, had further challenges to her mental health.
She disclosed to G Organisation, who appear to be a group engaged and/or facilitated by the Department to support this mother who otherwise, apart from her foster mother and her partner, had little support. The notes of this organisation have been briefly considered. As I indicated to the parties earlier, I was particularly concerned with some of the alleged statements provided by the mother to someone from “Supporting Families Network”. There is a little uncertainty about when all these notes were made. It may be necessary for further evidence to come from these people. However, of particular concern were at least two of the three disclosures made by the mother to this group in mid-2023, none of which otherwise appears in the material.
Disclosure 2, recorded in mid-2023, was in these terms:
Fight with [Mr D]/hospital visit:
[Ms Mori] disclosed that over the weekend ([…]), she and [Mr D] had had an argument. [Mr D] had been playing video games for hours and not engaging with the family or helping out with routine, chores etc. [Ms Mori] had been struggling with severe pain […] and confronted [Mr D], stating she needs help and can't do everything herself. [Mr D] became angry and stormed off, leaving the house and taking the car. [Ms Mori] did not know where he went, how long he would be or if he would come back. [Ms Mori’s] pain became excruciating and she reached out to ‘Ma’ (mother-in-law) for support. Ma offered to look after the kids so [Ms Mori] could present to ED. [Ms Mori] presented to ED and received immediate medical attention: the pain […] is due to her ligaments loosening in preparation for birth - doctors offered no options for relief and said this was normal/to “ride it out”. Doctors told [Ms Mori] she was severely dehydrated – [Ms Mori] had only had a few sips of water from her drink bottle and then admitted to not having eaten in three days. Doctors monitored the baby and had no major concerns. [Ms Mori] called [Mr D] and told him she was in hospital – [Mr D] was angry about children staying with Ma. [Mr D] said he had gone to the pub and was drinking and playing pokies; [Ms Mori] defended her decision that she would not want [Mr D] around the children/driving if heavily intoxicated. [Ms Mori] was discharged after a few hours, picked up the kids and returned home.
(As per the original)
And:
Disclosure 3 - Suicidal Ideation:
[Ms Mori] disclosed to CFP she ‘doesn’t want to be here’ and ‘is done’. CFP clarified what this means with [Ms Mori], [Ms Mori] is feeling suicidal. CFP established that [Ms Mori] has no set plan but feels the same way she did [earlier in the year]. [Ms Mori] confirmed she would take pain medication and sleep medication and ‘wash it down’ with excessive amounts of alcohol. [Ms Mori] stated she wants to wait until after the baby is born so that she leaves three children behind instead of two. [Ms Mori] acknowledged that she knows [Mr D] has not paternal right to the children and [Mr Brice] would have sole custody of the children, where she knows they will be abused. [Ms Mori] described having no [regard] for her personal safety and that anything could happen to her and she wouldn’t care. CFP asked if [Ms Mori] has shared this information with anyone – [Ms Mori] had told her psychologist [Mr H] that she’s been feeling suicidal. [Mr D] knows [Ms Mori] ‘has not been coping well’ but may not know the full extent of her ideation. CFP asked about additional supports – [Ms Mori] has two close male friends, one of which is aware of how she is feeling, the other does not know as she believes he would be mad at her. Her mother does not know as she was ‘mad at her about what happened [earlier in the year]’ – CFP suggested that while some people may express anger/frustration/disappointment in those times, it originates out of worry and concern for someone they care about. CFP suggested [Ms Mori] reaches out for additional support.
(As per the original)
We know that the mother gave birth to J in 2023. We know from the evidence that there have been some struggles emotionally for the mother with these three young children in her care. One should not be too critical of a mother of 24 years of age who is struggling with three young children and, on at least her version of the facts, little support, including from her partner (she would say).
The problem is that until this material was presented to the Court today by the Independent Children’s Lawyer, for which I am thankful, the full extent of the mother’s challenges had not been known, revealed or candidly put before the Court. Rather, it seems to me, on the evidence currently, the mother at least maintained the position about harm to Y which was not consistent with the evidence, and prevented the children from spending time with their father over the September holidays and now for a period of over two months.
In my view, it is in the best interests of the children if the children are moved into the care of the father today. Changeover will occur at 6.00pm at Suburb B McDonald’s. I have indicated to the parties I will review this matter at 1.00pm on Friday, 24 November 2023. I am giving this matter as much urgent attention as I can, but I also require the mother to give her solicitors some proper and candid instructions about what is going on in her household. A review of her affidavit and that of her partner would not reveal anything like what I have read here today from independent records.
I am not unaware that placing the children in the care of the father after two months might create some issues. I do not know what the children have been told about why they are not seeing their father. I do not know what narrative has been shared, maybe even things they have heard when they should not have heard. However, none of the evidence before the Court suggested that the father was any risk to these children at all and, in fact, quite curiously, the mother’s case before the trial opened today was that the father should continue to have unsupervised time under the current interim orders long term. That total inconsistency with the mother’s evidence is yet another problem I have in accepting the mother’s version of facts.
For the reasons I have given, the children will move into the father’s care. I am not making an order that they reside there. I am not yet satisfied that that will be in their best interests other than for a short period, but I am satisfied that, having missed as they should not have in my view, at least the September school holiday with their father, that spending time with him until Friday next week is at least a way of partially repairing the damage that has possibly occurred to their relationship with their father.
As to whether on the next occasion, or shortly thereafter, the Court decides to change the residence of these children to the father’s care or not, is too early to say. As I say, the father’s case, even after the events of September in his case outline, still supported the children living with the mother. Now, how these cases can be presented to this Court in that form with that history astounds me, but that is what the parties have told the Court. If the lawyers acting for a party should have filed something more accurately, then the lawyers deserve some criticism but I am not sure that is the case.
In the end result, this is not about visiting upon the children the imperfections of their parents or the failings of their lawyers. It is ultimately, and moves from, a test of what is in their best interests. Though I do have an open mind as to what the next stage of this journey will be for these two young children, at this stage I am satisfied that from 6.00pm tonight the children will be reunited with their father and the family that he is part of now. A concern, of course, that I have raised with the parties is that if Ms C gives birth, that will put a further pressure on the home and the father’s capacity to support her and their child and his children. I am told there is support available. Hopefully that can be better clarified by the next occasion.
I am concerned that these children will, of course, miss their mother. However, just like they would have spent a week with the father in the September school holidays, this is nothing more than another week with him now. The mother will be permitted to telephone the children on Sunday and on Wednesday at 6.00pm unless otherwise agreed. The mother will initiate the call.
I propose to make an order pursuant to s 68B of the Family Law Act 1975 (Cth) that the mother is restrained from removing the children from the father; from the school; from childcare or anywhere where the children are, pending further order. I do that in circumstances where both parties can be shown in the past to have demonstrated scant regard for Court orders perhaps, and have gone through phases and withheld children.
I was invited by the Independent Children’s Lawyer today to consider whether I should make a recovery order. I could think of nothing more stressful for these children than to be collected by Police and removed from a parent, but I understand the concerns that Ms Keyworth, the very experienced Independent Children’s Lawyer has, in this case, with this history. If my order is not complied with, there needs to be some immediate action. Let me make it clear, the Independent Children’s Lawyer shall have liberty to list this matter tomorrow if the children are not returned under my order which I now pronounce, to the father.
Not only will I take steps to have those children placed in the care of the father, but the mother, or any person supporting her in that endeavour, if that were to occur, could well be considered to be behaving in a way which was akin to contempt in the face of the Court in view of the circumstances of today and how I have described them. The penalty for contempt is often imprisonment. I frankly do not think that is likely. As disappointing and upsetting as it is for the mother that I make this order today, I am confident she will abide by the order of the Court. Those who support her and care for her should make sure she does.
The changeover shall occur between the mother and the father. I do that because, in my view, I do not want there to be a potential for some uncomfortableness or friction between the mother and her partner or the father and his partner. In the end result, these two young parents should start acting a little more maturely and take responsibility for their decision to have these children, albeit at a young age. The fact that they have continued to have children is, of course, a very good choice for them, but my role is to look after these children.
The Independent Children’s Lawyer shall have liberty to issue further subpoena. I am not at this stage necessarily satisfied that it is necessary for the mother to be the subject of independent psychiatric assessment. At the very least, however, more details about the mother’s hospitalisation in F Hospital; what she told the people at the hospital; what the psychiatric nurse and/or any psychiatrist who observed the mother opined, should all be available for further assessment so this matter can continue to move through the system.
Now having had two trials this year granted and avoided because of the circumstances – none of which are of the Court’s doing, but which has placed these children in a position of not having this matter resolved, even though it looked like it would resolve – I am not sure what priority I can give it next year, but, certainly, I would ask the Independent Children’s Lawyer to seriously consider whether she believes it is appropriate when she gets more information about the mother’s mental health functioning before seeking a special grant of aid from Legal Aid Queensland that would be required for these modest income persons to enable Legal Aid to fund a psychiatric assessment for the mother.
At the very least it may be necessary to have Ms E, the family report writer, consider an updated report with more information. That may be sufficient. I am comfortable with leaving that decision to the Independent Children’s Lawyer. I am concerned about the delay.
So, as we leave here today, probably unexpected by the mother and probably also by the father, I propose to remedy what has occurred since September, because I am not satisfied on the evidence the father is an unacceptable risk on the current evidence. I have some concerns about whether the mother’s emotional state presents as a risk to these children, but I make no such findings today. It is in the best interests of X and Y that they have again the support of a loving father, which the father is; that he does not involve them in this dispute, question them, ask them – those things will inevitably come out in the end. What he should be doing, in my view, is making them feel comfortable returning to his home and enjoying his time, looking forward, as no doubt they did with J, to the birth of a sibling.
Perhaps with the passage of time and some reflection, some more evidence and support, these parties can again get back on to the track of a co-parenting model which meets the best needs of these children. That would be my hope, but my optimism that that can be achieved has been very significantly dented today. They are my Reasons. I have pronounced the Orders.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 13 December 2023
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