Oyama & Oyama

Case [2024] FedCFamC1F 738


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Oyama & Oyama [2024] FedCFamC1F 738   

File number(s): SYC 7015 of 2020
Judgment of: GILL J
Date of judgment: 5 November 2024
Catchwords: FAMILY LAW – PARENTING – Consideration of “safety” pursuant to s 60CC(2)(a) and “safe” pursuant to s 60CC(2)(e) – Where there is a risk to the safety of the children arising from the mother's serious mental health conditions – Where the parties agree that the children will live with the father and spend time with mother – Disagreement as to whether the children's time with the mother should be professionally supervised or supervised by the mother's family or merely in the substantial presence of the mother’s family – Orders for mother to direct treating practitioners to advise the father of certain events – Father to hold sole parental decision-making responsibility in relation to health and education related issues
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61CA, 61DAA, 117

Mental Health Act 2007 (NSW)

Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)

Cases cited:

AB v CD (2019) 364 ALR 202

Eastley & Eastley (2022) FLC 94-094

Fitzwater v Fitzwater (2019) 60 FamLR 212

Isles & Nelissen (2022) FLC 94-092

Jollie & Dysart [2014] FamCAFC 149

M v M (1988) 166 CLR 69

Otieno & Mwangi [2022] FedCFamC1A 145

Phillips & Hansford (No 2) (2019) FLC 93-917

Division: Division 1 First Instance
Number of paragraphs: 350
Date of hearing: 16-20 September 2024
Place: Sydney
Counsel for the Applicant: Ms Reid
Solicitor for the Applicant: Walter & Elliott Family Lawyers
Counsel for the Respondent: Ms Wallace
Solicitor for the Respondent: Hosking & Gosling Legal
Counsel for the Independent Children's Lawyer: Ms Conte-Mills
Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

SYC 7015 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR OYAMA

Applicant

AND:

MS OYAMA

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Mr Oyama (“the father”) has sole decision-making responsibility for all major, long‑term education and health related issues in relation to the children, X, born 2018, and Y, born 2020, (collectively “the children”) and in exercising his sole decision‑making responsibility:

(a)The father is to email Ms Oyama (“the mother”) setting out his proposed decision and the reasons for that decision;

(b)The mother is to respond to the father’s email within seven days advising the father as to whether she agrees with the father’s proposed decision and if not, setting out her reasons for her opposition and suggesting an alternative; and

(c)The father is to give consideration to the mother’s response before making a final decision and email the mother within seven days of receiving her email informing her of the decision he has made.

2.The mother and the father (collectively “the parents”) have joint decision-making responsibility for all other major long-term decisions for the children including but not limited to:

(a)The children’s names;

(b)The children’s religious and cultural upbringing; and

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Details
AGLC
Oyama & Oyama [2024] FedCFamC1F 738
Case
[2024] FedCFamC1F 738
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Oyama & Oyama involved a dispute between Mr Oyama and Ms Oyama regarding the parenting arrangements for their two children, X and Y. The central issue was the safety of the children when spending time with Ms Oyama, who suffers from serious mental health conditions, and the appropriate level of supervision during these periods. The court had to decide whether the children's time with their mother should be supervised by professionals, by Ms Oyama’s family, or merely in the substantial presence of her family. Additionally, the court had to address the parents' differing views on the division of decision-making responsibilities, particularly concerning health and education matters.

The court examined the evidence presented, including the history of Ms Oyama’s mental health issues, which have led to multiple hospitalisations. The court recognised the potential risks to the children if Ms Oyama were to relapse but also considered the benefits of maintaining a relationship with their mother. It was determined that while the children would live primarily with Mr Oyama, Ms Oyama could have supervised contact. The court ruled that for the first six months, the children’s time with Ms Oyama should be supervised by either the maternal grandfather or the maternal aunt, or another person agreed upon by both parents. After six months, the supervision requirement would reduce to the substantial presence of the maternal grandfather or aunt. The court also ordered that Ms Oyama must keep Mr Oyama informed of any changes to her mental health treatment or condition, and failure to comply could result in suspension of her contact with the children.

The final orders granted Mr Oyama sole decision-making responsibility for major health and education-related issues concerning the children. Joint decision-making was established for other significant matters. The court also imposed conditions to ensure the safety of the children during their time with Ms Oyama, including restrictions on her taking the children for medical appointments and operating a vehicle with the children as passengers. The court emphasised the importance of both parents facilitating the children’s communication with each other and ensuring they are kept informed about each other’s lives and the children's schooling and health matters.

Orders

Orders of the court

SYC 7015 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR OYAMA

Applicant

AND:

MS OYAMA

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Mr Oyama (“the father”) has sole decision-making responsibility for all major, long‑term education and health related issues in relation to the children, X, born 2018, and Y, born 2020, (collectively “the children”) and in exercising his sole decision‑making responsibility:

(a) The father is to email Ms Oyama (“the mother”) setting out his proposed decision and the reasons for that decision;

(b) The mother is to respond to the father’s email within seven days advising the father as to whether she agrees with the father’s proposed decision and if not, setting out her reasons for her opposition and suggesting an alternative; and

(c) The father is to give consideration to the mother’s response before making a final decision and email the mother within seven days of receiving her email informing her of the decision he has made.

2. The mother and the father (collectively “the parents”) have joint decision-making responsibility for all other major long-term decisions for the children including but not limited to:

(a) The children’s names;

(b) The children’s religious and cultural upbringing; and

(c) Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

3. The mother is restrained from:

(a) Taking the children or either of them for any medical/dental/allied health appointment or assessment, or to any alternative health providers unless in the event of a medical emergency in which case she shall immediately notify the father of the circumstances including the location of where the child/children are being treated so that the father may attend; and

(b) Operating a motor vehicle with the children as passengers.

Live with

4. The children shall live with the father.

Spend time with

5. The children shall spend time with the mother, as agreed between the parents in writing and failing agreement:

(a) From the date of these Orders and for a period of six months thereafter:

(i) Each Wednesday from 3pm or afterschool until 7pm; and

(ii) Each alternate Saturday from 9am until 2pm.

(b) Thereafter and for a further period of six months:

(i) Each Wednesday from 3pm or afterschool until 7pm;

(ii) Each alternate weekend, on Saturday and Sunday from 9am until 2pm.

(c) Thereafter and for a further period of six months:

(i) Each Wednesday from 3pm or afterschool until 7pm;

(ii) Each alternate weekend, on Saturday and Sunday from 9am until 4pm.

(d) Thereafter and for a further period of six months:

(i) Each Wednesday from 3pm or afterschool until 7pm;

(ii) Each alternate weekend from Saturday at 9am until Sunday at 4pm.

(e) Thereafter:

(i) Each Wednesday from 3pm or afterschool until 7pm;

(ii) Each alternate weekends from 3pm or afterschool on Friday until Sunday at 4pm.

6. Order 5 shall be subject to this order on the following days of special significance and the children shall spend time with each of their parents, as agreed between the parents in writing, and failing agreement:

(a) On each of the children’s birthdays from 3pm until 7pm, with the parent that they are not otherwise spending time with on that day;

(b) On Mother’s Day from 10am until 4pm with the mother;

(c) On Father’s Day from 10am until 4pm with the father;

(d) In even numbered years from 10am on Christmas Eve until 2pm on Christmas Day with the father;

(e) In even numbered years from 2pm on Christmas Day until 6pm on Boxing Day with the mother;

(f) In odd numbered years from 10am on Christmas Eve until 2pm on Christmas Day with the mother;

(g) In odd numbered years from 2pm on Christmas Day until 6pm on Boxing Day with the father;

(h) Commencing 2028, for the first half of the short school holiday periods at the conclusion of the term 1, 2, and 3 school terms with the mother; and

(i) Commencing 2028, for the second half of the short school holiday periods at the conclusion of the term 1, 2, and 3 school terms with the father.

7. For the purpose of the mother’s time with the children in accordance with Orders 5 and 6 such time is conditional on:

(a) The time between the mother and children pursuant to Order 5(a) or pursuant to Order 6 and falling within the first 6 months, being supervised at all times by either Mr C (“the maternal grandfather”) or Ms D (“the maternal aunt”), or such other person as agreed between the parents in writing.

(b) Otherwise, the time between the mother and children occurring in the presence or substantial attendance of either the maternal grandfather or the maternal aunt or such other person as agreed between the parents in writing.

(c) In being substantially in attendance or present during the time that the mother spends with the children, the maternal grandfather, aunt or agreed other person shall be either:

(i) Present in the location where the children are; or

(ii) Absent from the location where one or both of the children are only for short periods and such that any appreciable deterioration in the mother’s mental health will be noticed.

(d) Unless otherwise agreed in writing, all overnight periods are to occur at the home of either the maternal grandfather or the maternal aunt or other agreed person with the maternal grandfather or aunt or other agreed person occupying such home overnight.

(e) The maternal grandfather and the maternal aunt and any other agreed person signing and filing an undertaking with the Court in accordance with Order 17 below prior to time commencing in accordance with these Orders.

8. It is a condition of the mother’s time with the children pursuant to these Orders that the mother comply with Orders 14 and 16.

9. In the event of non-compliance with Orders 14 and 16 the children’s time with the mother is suspended pending the mother providing to the father material demonstrating that she is again compliant with Orders 14 and 16.

10. In the event that the mother is showing signs of delusion, paranoia, psychosis or relapse or has been hospitalised for a mental health related incident then the mother’s time with the children in accordance with these orders shall be suspended until such time that the father receives information from the mother in the form of documentation from her treating practitioner that the mother’s condition is now stable, at which time the mother’s time with the children shall forthwith resume in accordance with these orders from the point at which they were terminated.

11. The children are at liberty to telephone the parent that they are not staying with at all times they spend time with the other parent on a telephone that the father shall provide to the children, and the parents shall not obstruct or prevent the children from doing so.

12. The mother may communicate with the children by telephone or audiovisual call as agreed between the parents and, failing agreement, each Tuesday and Thursday between 4 and 4:30 pm.

Changeover

13. For the purpose of facilitating time between the children and the mother pursuant to these orders, unless otherwise agreed in writing:

(a) On days when the children’s time with the mother commences immediately following school/preschool the mother or her nominee may collect the children from their school/preschool;

(b) Otherwise, the father or his nominee shall deliver the children to the mother’s residence at the commencement of her time with the children, and the father or his nominee shall collect the children from the mother’s residence at the conclusion of her time with the children.

Information to be provided by the mother to the father

14. Pending Y reaching the age of eighteen years:

(a) The mother must forthwith provide a copy of the Final Orders to her general practitioner, psychiatrist and psychologist and is to provide confirmation of having done so to the father by email, and, in the event that she changes any such practitioner, shall forthwith provide such practitioner with a copy of these orders.

(b) The mother shall, on an ongoing basis authorise and direct her treating mental health practitioners, including any then treating general practitioner, psychiatrist or psychologist to promptly advise the father:

(i) About non-attendance and non-compliance with her treating practitioners’ recommendations and to further advise the father about any mental health related hospitalisations;

(ii) If the mother is showing signs of delusion, paranoia, psychosis or relapse;

15. That from the date of these Orders and for a period of two years thereafter, the mother shall provide to the father on the 31st of January, 30th of April, 31st of July and 31st of October, a letter from her treating psychologist and psychiatrist, if attended upon during that period, that describes:

(a) The mother’s engagement with her psychologist and psychiatrist;

(b) The mother’s treatment including frequency of attendances and any future scheduled assessment or review date; and

(c) The mother’s ongoing diagnosis and prognosis.

16. Pending Y reaching the age of eighteen years the mother is directed by injunction to:

(a) Notify the father if there is any change to her mental health treaters or medication prescribed to her (including any dosage change) for mental health conditions within seven days of any change; and

(b) Notify or cause the father to be notified within 24 hours in the event that she is admitted to any hospital or mental health facility for mental health treatment including the reason for her hospitalisation, the details of where she is hospitalised, the details of the treatment she is receiving and her expected discharge date and to update the father of this information during her hospital admission.

Undertaking by the maternal aunt and maternal grandfather and other agreed person

17. It is a condition precedent to the children spending time with the mother supervised or in the substantial attendance or presence of the maternal aunt or the maternal grandfather or other agreed person, that such file undertakings in the Court in the following terms:

(a) I undertake to the court:

(i) That I acknowledge that Ms Oyama, the mother, is diagnosed with a serious mental health condition which can cause symptoms including but not limited to auditory hallucinations, delusions of substitution, paranoia, psychosis, mood instability and irritability.

(ii) That I agree to supervise the time that the mother spends with the children pursuant to Order 5 (a) or Order 6 when during the first six months following these Orders; and

(iii) That I agree to be substantially in attendance or present during the time that the mother spends with her children pursuant to Order 5 (b), (c), (d) and (e) and Order 6; and

(iv) In being substantially in attendance or present during the time that the mother spends with the children I shall ensure that I remain either:

A. Present in the location where the children are; or

B. Absent from the location where one or both of the children are only for short periods and such that any appreciable deterioration in the mother’s mental health will be noticed.

(v) When the children are spending overnight time with the mother in my home I shall ensure that I occupy the home overnight.

(vi) That I agree to contact the father, Mr Oyama in any of the below events and advise him of the circumstances, action taken and treatment being received if:

A. The mother has failed to comply with recommendations as to attendance upon her general practitioner, psychologist or psychiatrist; or

B. The mother has failed to comply with the recommendations as to mental health treatment given by her general practitioner, psychologist or psychiatrist; or

C. The mother is showing signs of delusion, paranoia, psychosis or relapse; or

D. The mother has been hospitalised for a mental health related incident and to advise the father of the reason for the mother’s hospitalisation, the details of where the mother is hospitalised, the details of the treatment the mother is receiving and the expected discharge date of the mother and to update the father, of this information during the mother’s hospital admission.

(vii) To immediately do all things necessary to remove the children from the presence of the mother and immediately notify the father of the details of what occurred in the event that the mother begins showing signs of delusion, paranoia, psychosis or relapse while spending time with the children or at any time prior to spending time with the children.

Restraints

18. Pursuant to s 68B of the Family Law Act 1975 (Cth) the parents are hereby restrained by injunction from:

(a) Making any negative, critical, belittling, or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or either of them or via written correspondence or on social media; and

(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing range of the children or either of them or permitting any other person to do so.

Schooling

19. The parents authorise any educational institution which the children attend to provide each of the parents with copies of all school reports, notices, photographs, order forms and any other documents ordinarily provided to parents and to provide each of the parents with access to any online ‘App’ used by the school to share information about the children and/or their education.

20. Both parents will keep themselves informed of all school activities and functions through the school websites, online apps (if applicable) and online newsletters.

21. Both parents are at liberty to attend all school related activities and events to which parents are ordinarily invited, including but not limited to parent-teacher interviews, information evenings, sports days and school concerts.

22. Each parent be at liberty to provide a copy of these Orders to the children’s school(s).

Children’s health

23. The parents shall keep each other informed about the children’s health.

24. Notwithstanding Order 1, within 7 days of the date of these Orders that the father shall do all acts and things necessary to:

(a) Advise the mother of the names of all medical practitioners and treating allied health practitioners that the child/ren attend upon and thereafter advise the mother in writing of any change to the same within 48 hours of such change occurring; and

(b) Authorise and continue to authorise any treating allied health practitioner to provide to the mother all information with respect to the child/ren’s attendance, diagnosis, prognosis and treatment plan including the details of any results, referrals and/or recommendations made.

25. The father will notify the mother of any serious injury or hospitalisation in relation to the children or either of them as soon as possible and in any event not more than three hours after the emergency occurred and provide full particulars of any medical practitioner, health service provider or institution attended by the children or either of them and provide any authority and direction necessary to enable the mother to obtain all necessary information concerning the children.

Change of phone numbers, email addresses and residential addresses

26. Each of the parents shall provide the other with their new telephone number and email address within 48 hours of a change to such information occurring.

27. Each of the parents shall provide the other with no less than 21 days advance notice of any change to their residential address.

Children’s travel and passports

28. Notwithstanding any order to the contrary herein, the father be at liberty to nominate one three-week block each year for the purposes of taking the children on a holiday, and shall provide the mother with no less than six week’s advance notice, and the mother’s time pursuant to these Orders shall be suspended during that three-week block.

29. The father be at liberty to travel with the children outside the Commonwealth of Australia, providing that:

(a) The father provide the mother with no less than 6 weeks’ notice of the intended travel and itinerary including all places being travelled to and contact details for the places the children will be staying; and

(b) No less than two weeks prior to departure, the father shall provide the mother with a copy of the children’s return tickets.

30. For the purposes of s 11(1)(b) of the Australian Passports Act 2005 (Cth), the father is permitted to solely apply for Australian Passports for the children and renew the children’s Australian Passports as and when such renewal is required, and the requirement for the mother to sign or consent to the passport applications for the children and associated documents is dispensed with.

31. In the event that the father consents in writing, the mother is at liberty to travel overseas with the children.

32. The father shall hold the children’s passports.

AGREEMENT OTHERWISE

33. The parties are at liberty to vary the arrangements under these orders by agreement in writing.

ICL COSTS

34. Unless in receipt of a grant of legal aid or in receipt of a waiver of ICL fees, each parent shall pay to the NSW Legal Aid Commission the sum of $8,980.95 being their half of the contribution to the ICL costs within 42 days.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In its simplest form, the main issue is as to risk of harm posed to the children by the potential of the mother relapsing into poor mental health, in particular psychosis, including as to the potential effects of being exposed to such. Against that the issue is the sufficiency of different arrangements to render time with the mother as safe, while permitting the reaping of benefits to the children of the relationship with the mother. The extent, nature and availability of those benefits are also matters of contest between the parties.THE EVIDENCE It is useful to deal with the evidence in chronological order, noting that the episodes of hospitalisation of the mother form key aspects of that chronology as they, and the circumstances around them, speak to the issues of capacity and risk. A significant aspect of those circumstances are the competing claims of abusive behaviour and the exercise of coercion and control. The mother was born prematurely leading to a number of health issues. In 2008, when the mother was 19 years old, the mother was assessed by a medical specialist. He described that the mother had a “significant […] disorder that appears to have occurred due to an acquired brain injury arising from […] a premature birth”. He described “a significant neurological disability that impairs her capacity to acquire an understanding of or learn about novel tasks and information.” Her memory and executive functions were further described as “significantly below that of an eighteen year old and closer to the childhood age bracket” and to be both stabilised and permanent.[4][4] Exhibit F21. The assessing medical specialist was not called by the mother, although the mother reproduced a dated report. In her oral evidence the mother asserted that she has subsequently had a discussion with the medical specialist, some time between the birth of X and the birth of Y, in which he altered his view of the mother’s condition, (to an unidentified degree) on the basis that the mother has become a parent and progressed in life, leading to a more benign assessment. In the absence of evidence sourced directly from the medical specialist, for example by reporting to the mother’s general practitioner, these hearsay assertions by the mother should not be relied upon. It may be accepted that the mother has some limited cognitive impairment. However, it has not been established that this impairment poses a significant limitation on the mother’s parenting capacity. The father was diagnosed as a child as having ADHD. He is currently, and for the long term has been, medicated in respect of such. The parties met some time around 2008 after being introduced by a mutual friend at the church they both attended in City F. They formed a relationship in 2009 and commenced cohabiting in early 2011. Prior to the marriage the mother experienced some depression. In early 2011 the mother attended on her general practitioner, who recorded that the mother had been on medication for two weeks by then and gave a further prescription for medication.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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