Oyama & Oyama - [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
(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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oyama & Oyama has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J

These are parenting proceedings between the father, Mr Oyama, and the mother, Ms Oyama. There are two children of the relationship, X, born 2018, and Y, born 2020.
The parties separated in October 2020. Since then, the children have lived with the father and spent supervised time with the mother.
That separation occurred in the context of the mother being admitted to hospital following a psychotic episode.
The father’s case is that the mother’s parenting capacity and the children’s safety in her care are compromised by the mother’s mental health, and that during the relationship he was subjected to coercive and controlling behaviour by the mother. The mother contends that the father has exercised coercion and control over her.
Although not the sole issue at trial, the mother’s mental health, the potential that she may relapse into psychosis, corresponding risks to the children, and compromises to the mother’s parenting capacity were the central issues pursued, the parties forming a common position immediately before trial that the children would live with the father.
ORDERS SOUGHT
By the commencement of the trial, it was no longer contentious that the children would live with the father. The mother no longer pursued her case that the children would transition to live with her.
Similarly, the parties and the Independent Children’s Lawyer (“ICL”) agreed that the father would hold sole responsibility for long-term major decisions for the children in relation to health and education. The father sought that this extend to all major long-term issues. The parties and the ICL agreed that the father should consult with the mother in relation to decisions where he would hold sole parental responsibility, although they disagreed as to the mechanisms for this.
The major point of difference was as to the arrangements for the children to spend time with the mother.
The father sought orders that until X turns 10 years old the children should spend from 9 am to 2 pm on Saturday and Sunday of each alternate weekend with the mother, on condition that this was professionally supervised. From then, each alternate weekend from Saturday through to Sunday with the mother, on condition that the time would be supervised by the maternal grandfather or maternal aunt. The father also sought a suite of further conditions imposed upon the mother related to her mental health treatment.
The mother sought orders to transition her time with the children to, after a period of two years, each Wednesday after school and each alternate weekend from Friday until Sunday. The conditions that she proposed were for supervision by members of her family for the first six months, then for the next 18 months substantially in the presence of various family members, with overnight periods being in the homes of her family members. There was some inconsistency in the mother’s orders sought as to whether the time would always be in the presence of/substantial attendance of her family. Overnight time would still occur in the homes of the mother’s family members.
The mother proposed further conditions related to her mental health treatment, offering injunctions and undertakings that she attend on mental health practitioners and comply with treatment as recommended by them, including a psychiatrist and psychologist. She also offered to authorise the passing of information to the father by her medical practitioners. The mother sought orders that would provide for time with her to be suspended in the event of a mental health episode.
The mother and father each sought differing orders about special days. They each sought orders regarding schooling and, health information. They each sought the issue of passports for the children.
The ICL sought orders similar to those sought by the mother, but with a longer period of supervision, and that after a two year period that the time still take place in the substantial presence of the mother’s family, with overnight time to occur in the homes of those family members.
The precise orders sought by the parties are annexed to this judgment.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(a)Amended Initiating Application filed on 29 August 2024;
(b)Affidavit of the father filed on 16 August 2024;
(c)Affidavit of Ms B filed on 16 August 2024;
(d)Notice of Risk filed on 6 October 2020;
(e)Single Expert Report of Dr E filed on 29 November 2021; and
(f)Case Outline Document filed 6 September 2024.
The mother relied upon the following documents:
(a)Further Amended Response to Initiating Application filed on 9 September 2023;
(b)Affidavit of the mother filed on 16 August 2024;
(c)Affidavit of Mr C filed on 16 August 2024;
(d)Single Expert Report of Dr E filed on 29 November 2021; and
(e)Case Outline Document filed 11 September 2024.
The mother also relied upon evidence from her treating psychiatrist who provided a report but no affidavit and attended to give oral evidence on subpoena.
The ICL relied upon the following documents at the final hearing:
(a)Single Expert Report of Dr E filed on 29 November 2021; and
(b)Case Outline Document filed on 11 September 2024.
PRINCIPLES
The paramount consideration in determining what parenting orders should be made for X and Y is their best interests.
The recently amended s 60CC of the Family Law Act 1975 (Cth) (“the Act”) sets out the considerations that, where applicable to the case[1], are to be examined and weighed to determine best interests. In this case, it is the considerations at s 60CC(2) that have general application. They are in the following terms:
[1]Phillips & Hansford(No 2) (2019) FLC 93-917 at [43]; Jollie & Dysart [2014] FamCAFC 149 at [45].
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(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 described in the Explanatory Memorandum,[2] the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child, and whilst guiding a court, permit flexible adaptation to each child’s specific circumstances.
[2] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
By their nature they overlap and are entwined with each other.
For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child’s psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c).
The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome.
In this case, following the parties and ICL forming a joint position that the children should live primarily with the father, much of the case was focussed upon the first consideration at s 60CC(2)(a), relating to the children’s safety in the care of the mother, and then its interplay with the benefits of relationship (s 60CC(2)(e)) with the mother. This also drew into consideration s 60CC(2)(b) and (c) as they relate to the needs of each of the children and the capacity of the parents to meet them.
The reference to “safety” at s 60CC(2)(a) is to a term that is wide in nature, and bounded only by its object – to keep children, and those who care for them, from harm.
Although cogent examples of sources of harm are identified in the provision, that is, being subjected or exposed to family violence, abuse or neglect, these are not voiced in a manner to limit the scope of the term “safety”. They are voiced inclusively rather than exclusively, and sit in the company of the phrase “or other harm”.
The consideration of safety and its corollary, risk of harm, demands no departure from the long standing approach set out by the High Court in M v M (1988) 166 CLR 69 (“M v M”), and recently expressed by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) and Eastley & Eastley (2022) FLC 94-094.
As identified in Isles & Nelissen at [50], quoting Austin J in Fitzwater v Fitzwater (2019) 60 FamLR 212 at [138] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm”. The consideration involves the contemplation of both the potential harm, and the arrangements for the care of the child that are protective from such, as was required by M v M, s 60CC(2)(a).
A further reference to “safety” is made at s 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent or other person of significance to the child “where it is safe to do so”. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, “safe” should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”.[3]
[3] AB v CD (2019) 364 ALR 202 at 205 per Nettle J.
The paragraph requires the court to consider the risk of harm that accompanies the relationship, in whatever form it may take. The paragraph does not contemplate consideration of the benefits of a relationship where such is not safe. The provision is consistent with longstanding case law that a child should not be exposed to an unacceptable risk of harm.
These considerations are prominent in this case where, although the parties are agreed that the children will live primarily with the father, and that they will have an ongoing relationship with the mother, the mother’s mental health is a circumstance that bears upon both benefit and safety.
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.
The mother again attended upon her general practitioner in relation to depression in late 2011, where her medication prescription was increased.
In late 2011 the parties married.
The parties moved into a rental property owned by the mother’s parents in Suburb G.
The mother accepted that following their return from a two week honeymoon she was suffering from depression. To the proposition that she spent each day for six months in a darkened room, she responded that it was not every day but accepted that she struggled with depression. The mother’s alcohol consumption also increased for a period.
The father asserted that the mother’s personality shifted abruptly following their marriage, describing that the mother would respond to him with criticism, verbal abuse and anger. The extent of this was not apparent.
In contrast, shortly after marriage the mother described to her father that the father would become moody when he did not take his medication, that he was erratic and that his behaviour would, at times, frighten the mother. In the absence of more fulsome description, it was unclear what this behaviour consisted of.
By January 2012 the mother had weaned off the medication, and told her general practitioner, Dr H that she would like to try another medication. Dr H prescribed that medication.
In late 2012 the parties moved in with the mother’s parents. Although the father described that he thought that the move would help with the mother’s deteriorating mental health, the maternal grandfather says that this was not raised with him at the time.
At this stage the father had ceased working and returned to university to study. The mother started a business , providing financial support while the father studied.
At this stage the mother, father and the maternal grandfather enjoyed a positive relationship. The maternal grandfather described that he and the father would often chat. He observed that the father did not raise concerns about the mother’s anxiety or depression (although it may be noted that the mother’s medication indicates that whether raised or not these were underlying issues).
The mother accepted that she may have subsequently taken herself off the medication sometime between 2012 and 2014. She asserted that she was seeing a psychologist and general practitioner.
In 2014 the father finished his studies, joined his father’s City F business and started a new office for that business in Sydney.
In 2015 the parties moved into their own accommodation in Sydney. The mother was working for a business whilst the father continued working at his father’s business. During this time the mother disclosed to her father that she was attending upon a psychologist to help to manage stress and anxiety.
The father described that the mother would message him during the day and then ignore him when he came home. The mother accepted that she would ignore him for extended periods of time, and that she was intensely angry with him for what she described as a short time. She formed a suspicion that he was having an affair with a person in his father’s business, where he was working at the time.
In 2016 the mother told her parents that she suspected that the father was having an affair. She told her parents that she was terrified of how he might react should she accuse him of such, and alleged that he had demanded to control their finances. She described that he had switched from paper to electronic statements, and when she had questioned him about the content of the statements had shut down her access to them.
The mother also alleged to her parents that the father hurt their cat, on one occasion holding it under the shower and shaking it by the throat. In her evidence the mother described this as holding the cat under scalding water. This was denied by the father. The mother further alleged that on another occasion the father threw and injured their cat. The father denied such.
It should not be concluded that the father behaved in the manner described. Further, the issue was not pursued as indicative that the father presents a risk of harm to the children.
The mother also alleged that the father had pressed his forehead against hers as she sat in a chair, and stared into her eyes for an extended period. The father denied having done so. In relation to the same incident, the maternal grandfather described that the mother had told him that the father had pushed her against the wall, his forehead to hers.
The father denied the incident.
The mother accepted that neither of these matters had been raised by her in her notice of risk, and remained undisclosed until her trial affidavit. She said that this was because she did not understand the significance of these incidents.

However, the mother also agreed that when asked by medical practitioners in screenings in August 2018, December 2020 and April 2022 she had, on each occasioned answered “no’ to the question of whether she was afraid of the father.
It should not be accepted that the father behaved in these ways.
In mid-2016 the mother’s then general practitioner, Dr J developed a mental health plan for her, on the basis that she was suffering depression and anxiety. She was noted to be under the care of a psychologist, Dr L, and was prescribed two medications. However, the mother described that she did not fill the prescriptions due to anxiety.
In mid-2016 the maternal grandmother and the father persuaded the mother to attend K Hospital due to her mental state. The notes record the mother as describing that she had been having episodes of anxiety, depression, severe mood swings and paranoia for one week.[5]
[5] Exhibit F8.
The discharge summary recorded a diagnosis of a mental health disorder, or depression with agitation/psychotic features. The mother was provided with medication, and taken home by the father and her mother.[6]
[6] Exhibit F9.
The father took the mother to M Hospital the following day, by train. He described the mother as catatonic. The mother disputed this, although she accepted that she had been on the floor of their home in a blanket.
In mid-2016 the mother was scheduled pursuant to the Mental Health Act 2007 (NSW), and described as:[7]
extremely distressed, fearful, thought disordered, expressing persecutory delusions and experiencing auditory hallucinations, unable to guarantee safety
[7] Exhibit F10.
The next day the mother was transferred as an involuntary patient to N Hospital. She was described as having suffered her first psychotic episode, having heard banging and voices. The mother described that she had been anxious, distressed and not well for a couple of months but severely so for the previous two weeks. She was recorded as happy to commence medication.[8]
[8] Exhibit F11.
The father advised the paternal grandmother that he and the mother would be unable to attend a planned family holiday overseas as the mother had been admitted to hospital. He did not provide information as to why the mother had been admitted.
By mid-2016 the mother was under the care of the O Clinic and a psychiatrist, Dr P, and was recorded to be refusing a medication, saying that she wished to come off another medication first. She was also recorded as refusing a medication that day, although she had another medication.
The mother accepted that Dr P had sought to increase her medication. When asked if she objected to such the mother explained that she had asked questions to understand the side effects. Exhibit F13 is an email from the father to the maternal grandfather from mid-2016 describing his interactions with Dr P, including both a description of the mother’s reluctance to increase her medication to an antipsychotic dose and the plan to transition to a different antipsychotic, but also evidencing strong advocacy for the mother to have nursing support and to have things adequately explained to her.[9] The mother accepted that the father visited her regularly during evenings during this admission.
[9] Exhibit F13.
The mother was discharged from O Clinic in mid-2016, although she remained under their care.
By late 2016 the mother was attempting to wean off her antipsychotic medication as she wished to fall pregnant. She accepted that she received medical advice from a doctor that she could remain on the antipsychotic. By early 2017 the mother had ceased her antipsychotic medication.
In 2017 the mother was pregnant. She accepted that Dr P advised that she recommence antipsychotic medication after she gave birth, and that there was a high chance of relapse without it. The mother did not recommence the medication as she wanted to breastfeed.
2018
The mother asserts that she was subjected to financial abuse by the father in 2018, alleging that he imposed a spending limit on her of $150 per week. The father asserted that the mother had ongoing access to a credit card, and that the spending limit was $500 per week. The mother said that the limit was later raised to $500 per week. The mother accepted that she had told her counsellor in July 2019 that she had access to both a credit card and a spending limit of $500 per week.
The father explained that this step was due to the mother engaging in excessive spending that was unable to be funded from their resources, involving the purchase of multiple high end items. The mother accepted that she had spent $20,000 on designer items.
The restriction in spending should not be considered to be an act of coercive control upon the mother.
In early 2018 the paternal grandfather purchased an apartment in Suburb Q for the parties to live in and the parties moved in.
X was born in 2018.
X suffered from reflux, and medical advice was given to the parents to administer antacid. The mother was resistant to doing so, wanting to explore further options.
It was about this time that the father first disclosed to his mother that the mother had previously been admitted to a hospital.
Shortly after this the father wrote to the mother a document entitled “good health = good life”.[10] The father outlined a list of concerns he held regarding the mother, the parties’ relationship and the mother’s relationship with X. He detailed the impacts her hospitalisation had had on him and implored her to make a number of changes in her life to better her physical and mental health.
[10] Exhibit M16.
The mother contends that this document is an example of the father’s coercive and controlling behaviour towards her. The document was written in a directive manner. However, the context of the document was of difficult issues being faced by the parties, and risk to the longevity of their relationship. The document was an attempt to ameliorate those issues, and should not be regarded as coercive or controlling. It was serious attempt, with the spectre of the demise of the relationship without change, to get the mother to take positive steps to improve her mental health and their relationship.
That email falls within the context of the father’s description that the mother would corner him in their kitchen and shout at him. The mother denied that this was so, but conceded that she was frustrated with the father as she did not consider that he was supporting her in her views, in particular in relation to the care of X. These themes are woven into the above email.
When X was a baby, in 2018, the mother took her for vaccinations. X had a rash on her head.[11] There was some dispute as to whether the rash was first present before or after the vaccine. The mother was, not unreasonably, concerned about X’s appearance, and took X to the general practitioner a short time later.
[11] Exhibit M12.
The mother accepted that in 2018, on presentation of X to hospital she was described as a “well baby”. The mother then took X to see the general practitioner the following day. She accepted that the general practitioner found that there was no obvious problem with X.
The mother denied the father’s allegation that she was up all night checking X for symptoms, describing that she was breastfeeding.
In 2018 the mother saw Dr P, who reported to the general practitioner that the mother was reluctant to return to medication because she was breastfeeding.
After this enquiry, the mother saw another doctor with X and was reassured that X was well.
Over the next two days, the mother took X to see her general practitioner Dr R, the second visit being in relation to concerns that X may have cerebral palsy.
In mid-2018 the mother was concerned that X had a seizure.
The father emphasised these attendances on the basis that they demonstrated an unwarranted fixation on X’s health, and constituted an example of X being exposed to the mother’s unwellness.
The mother accepted that she may have been overly concerned with X’s health, but considered, in hindsight that they were not indicative of a decline in her mental health, but rather were the product of an anxious first-time mother.
Given what then followed, being the mother’s admission to hospital for mental health issues, including anxiety, it is reasonable to consider that the mother’s response to X’s health was impacted by the mother’s mental health. However, no tangible adverse impact upon X has been identified by these examples of multiple attendances upon medical practitioners.
The mother was admitted to M Hospital in mid-2018 by another doctor as a result of her increased anxiety. She attended with the father. The mother refused medication as she was concerned about the effect on her breastfeeding.
The mother was separated from X and placed in an Emergency Care Unit of M Hospital. The separation caused the mother great distress.
The mother was transferred with X to a different Unit of T Hospital in mid-2018. She remained there for some time. She presented as experiencing anxiety, depressed mood and paranoia, was fearful of her family and nursing staff and distrustful of the father.[12]
[12] Exhibit M3.
The father deposes that during the mother’s initial consultation at T Hospital, the psychiatrist, Dr S, stated the mother was psychotic. This was accepted by the mother.
While the father was visiting the mother, in mid-2018, the mother ran with X to the nurses’ station asking that they call the police as there was a man in the bathroom. It was the father in the bathroom. The mother sought to explain in the proceedings that the father had threatened her with an object. Such a description was not recorded in the mother’s interactions with the nursing staff. The mother was noted to be suspicious.[13] She denied that this event exposed X to her paranoia.
[13] Exhibit F16.
A short time later, the mother expressed to hospital staff that she wanted to cease her medication, explaining that it made her feel detached, including from her baby.
Following her discharge from T Hospital the mother commenced seeing Ms U, psychologist.
According to the father, the mother then became fixated with suing the M Hospital for negligence due to the distress she experienced after being separated from X upon her admission. The father contends that, in part due to his background, he convinced the mother that she should bring a claim against the NSW Government instead. This claim was successful, and the mother received a settlement on the basis that facilities had not been provided to enable the mother to have X with her while receiving treatment.
2019
Although in her oral evidence the mother initially denied a brief relapse into psychosis in early 2019, at that time the mother attended upon Dr S describing that two weeks earlier she had experienced an hour of paranoid unsettled suspicions of the husband, triggered by a news article about food. She described having been busy, and not sleeping well. The mother was recorded as being stable following that period.[14]
[14] Exhibit F18
By 2019 the mother was off her medications and was pregnant with Y. She attended upon an obstetrician, who recommended that the mother see Dr S. In 2020, Dr S recommended that the mother return to antipsychotic medication as soon as her child was born, without which there was a 90 per cent chance of relapse.
In late 2019 the father was still working for his father’s business whilst also studying for his exams. After the father was unsuccessful in the exams, he resigned from the family business and began a business with his sister, located in City F.
2020
Due to the COVID-19 pandemic, in March 2020 the father commenced working from home. He set up a home office in his garage and would go into the house to spend time with X throughout his day. Meanwhile, the mother remained as the primary carer for X.
In early 2020 the mother ceased attending upon Dr S, transferring to another psychiatrist, Dr V. The mother explained that she wanted to have a female psychiatrist, who she thought would understand the mother’s desire to engage in breastfeeding. Dr S insisted that he be able to contact the mother’s new treating psychiatrist to provide handover. The mother was resistant, initially declining to identify who her new psychiatrist was, before relenting on Dr S’s identifying that, if necessary, he would contact the mother’s psychologist or the community mental health team. In mid-2020 Dr S emailed Dr V, describing that the mother’s diagnosis had fluctuated between different mental health disorders with a developmental trauma overlay. She was described as having been in remission since late 2018, apart from a brief period of psychosis (presumably as identified above). He described good engagement by the mother, but also “an element of denial”. He also noted that when the mother had previously become unwell she had “developed paranoia and suspicion towards her family, her husband and her treating team”.[15]
[15] Exhibit F20.
By mid-2020 the mother was concerned that X suffered from a tongue tie. The father relied upon the mother’s pursuit of this issue as indicative of fixation caused by the mother’s mental health issues. A paediatrician, two lactation consultants and various clinics were consulted on this issue. Many, but not all, identified no such problem for X.
In mid-2020 the mother sent the father an email containing about 50 links and videos in relation to tongue ties. The mother explained that these had largely come from a lactation consultant that she was seeking online advice from.
Later in 2020 the parties attended upon a dentist, in relation to the potential tongue tie. He examined X, although X would not open her mouth. He recommended chiropractic intervention, and potentially that he would cut X’s tongue with a water laser. While the mother considered that this confirmed the issue, the father was discontent with the advice. The parties obtained further advice from a practitioner at a specialist clinic in mid-2020, who considered both that X was normal and that there was no reason for surgery. The father alleged that the mother left angry that the tongue tie was not confirmed. The mother denied this but accepted that she left frustrated. She explained that she was frustrated because X was unsettled, but that she was satisfied with the advice. The parties relied upon the advice of the specialist.
In 2020, the mother was looking for an alternative to M Hospital to give birth to their second child. This was understandable given the negative experience that she had at M Hospital at the time of X’s birth. As this would have necessitated a change in doctor, it was not able to be facilitated.
By mid-2020, the father was expressing to the mother that he was concerned as to her mental health. At that time, the maternal grandmother attended to help out, but was asked to leave by the mother, who explained that she felt overwhelmed and not supported by the father.
Around this time the mother accused (to the father) the nanny of stealing X’s socks. The mother explained that, at that time, this was how she felt.
In 2020 the mother spoke with her psychiatrist, Dr V. Dr V gave the mother strong advice to commence medication to reduce her anxiety in order to reduce the chance of developing a psychotic episode. The mother wanted a few days to consider this, and it was instead determined that the mother would commence on such immediately following birth and engage in other strategies to reduce her anxiety in the meantime. Dr V considered that the mother was “a low risk profile” at that time, and did not consider that she would develop psychosis. Dr V indicated that she would consult with the mother’s obstetrician and with the psychiatrist at M Hospital.
At this time, the mother consulted her psychologist.
The following day the psychiatrist at M Hospital, Dr W, observed the mother to be agitated, telling the midwives that they had tampered with her phone. She felt very anxious, and had told her obstetrician that she feared that she would be killed. Dr W formed the impression that the mother had relapsed into psychosis.
Y was born in 2020.
The father asserted that the mother was unable to make appropriate medical decisions for Y, giving three examples. The first related to an urgent need for Y to receive sugar gel due to issues with his blood sugar levels. It was also recommended that Y have “top ups” by formula feed. The mother was recorded as very reluctant to allow formula feeds. The father also described that the mother was reluctant to allow the sugar gel to be administered despite risk of neurological compromise. The mother described that she awoke to this emergency, and so was dealing with the issue in those compromised circumstances. She consented to Y’s transfer to the neonatal intensive care unit and the administration of the gels.[16] The second issue was as to administration of a vitamin K injection. The mother explained that she preferred for it to be given orally. The third was the mother’s reluctance to allow Y to have a hepatitis B vaccination. She explained that she understood such could be given at 6 weeks.
[16] Exhibit F36.
After about one week, the mother and Y transferred to T Hospital. The parties were at odds as to how frequently the father brought X in to visit, although the mother accepted that X contracted an illness which prevented her visiting for a period.
During this time, the mother described to the father that Y was being looked after by the nurses overnight. A few days later, the mother asked the father to take Y home overnight to look after him, rather than the nurses. The father texted asking to have Y the following night and the mother agreed.
The mother was recorded as having asked the father to take Y home overnight on another occasion so that she could have a good night’s sleep.[17] At that time, the mother was recorded as not wanting Y to be returned to the hospital that day. The mother was reported to appear perplexed and overwhelmed.[18] The mother also reported having fleeting thoughts of suicide.
[17] Exhibit F38.
[18] Exhibit F39.
Y was not returned by the father for overnight time during the balance of the mother’s hospitalisation. An attempt was made by the hospital to have him return Y. The father described receiving a telephone call from a nurse asking him to return Y to the hospital. The father said that this call was interrupted by Y needing a feed. He did not return Y.
The father explained that it was a difficult task to arrange visits, due to the combination of caring for the children, working, and the nature of the travel to and from the hospital.
In late 2020 the mother was informed that the father had enrolled X in daycare. Although the prospect of X being enrolled had been discussed, the father did not consult the mother in relation to where X was enrolled.
On a night in 2020 the mother, who was not at that stage an involuntary patient, left the hospital and travelled to the family home, arriving unannounced and entering the home. The mother then returned to the hospital. The father asserts that he was frightened by this. Why this was frightening was not explored. The mother returned to hospital that night accompanied by the maternal grandmother, who had been staying with the father.
A short time later, the father attended the hospital and told the mother that their marriage was over and that he was going to commence legal proceedings against her. Understandably, the mother was distressed at this. The mother was served with court documents while still at the hospital.
Some days later, the mother was discharged from hospital, moving in to live with her parents. She remains living with her parents although she has made an application for public housing.
Around this time the father employed a nanny to assist with the care of the children. A number of different nannies were employed over a period of time.

On 12 October 2020 interim orders were made by Senior Judicial Registrar Campbell for the children to live with the father and spend time with the mother supervised by the maternal grandfather from 11 am to 1 pm on Mondays, Wednesdays and Fridays. The maternal grandfather filed an undertaking in respect of supervision.
These orders were varied by consent on 29 October 2020. The mother’s time with the children was adjusted to be supervised by either the maternal grandfather or the mother’s sister, from 10 am to 3 pm each Wednesday and 10 am to 2 pm each Saturday, aside from the last Saturday of each month during which time was 10 am to 4 pm.
Initially, pending the father moving back to City F with the children, this involved the mother travelling to spend time with the children in Sydney.
In late 2020 the mother was concerned that her mood was elevated.
On review by her psychiatrist, the mother reported that she had recently spent $2,000 on exercise gear. This was raised but not confirmed as a potential indication of a degradation in the mother’s mental health.
On 16 December 2020 the orders were further varied by consent, allowing the father to relocate with the children to City F. This meant that the children were then living closer to the mother who was already located in City F. The orders provided that the mother would spend time with the children, still supervised by the maternal grandfather or maternal aunt, on Wednesday, Saturday and Sunday from 10 am to 3 pm during the first week of the fortnight and from 10 am to 3 pm on Wednesday and Friday during the second week.
2021
In early 2021 the mother contacted Ms Z, a registered nurse from the community mental health team. The mother described feeling very depressed and frightened, and that she needed hospitalisation for respite.
Although in early 2021 the maternal grandmother was to take the mother to a specialist unit at AA Hospital, the mother did not go. A few days later, the maternal grandmother no longer considered that the mother needed to go to hospital, as she did not consider it to be an emergency.
The mother could not recall another time when her mother had disagreed with her when she wanted to go to hospital, describing that her mother was mostly supportive. The evidence was however suggestive of a generally troubled relationship between the mother and her mother.
The father alleged a number of issues arising during these periods of supervised time. He claimed that there were multiple occasions where Y only had one of his bottles despite spending over five hours with the mother. He alleged that frequently Y was returned with a full nappy, and that X was returned with a burn to her finger, sunburn, and a carpet burn to her back. The mother disagreed, and explained that the mark on X’s finger was not a burn, and that it was present when she came into the mother’s care.
The paternal grandmother described that in early 2021 the children returned from time with the mother with full nappies, and X had a wound on her finger which she took to be a burn. She further described, a couple of weeks after this, that X appeared to have a carpet burn her back following time with her mother.
In early 2021 the mother and maternal grandfather attended upon Ms Z, raising concerns that he had with the degree to which the mother was sedated by her medication. He played a video that he had taken of the mother asleep during a recent supervised visit.
In late 2021 the mother commenced treatment under her current psychiatrist, Dr BB.
In late 2021 an incident occurred where X hurt her arm whilst in the care of the mother, the maternal grandfather and the maternal aunt. They had been at a local park and X had fallen from the play equipment. The maternal aunt had been able to break some of her fall, but X had been in pain. Although there was no apparent injury, the mother suggested that X be taken to a nearby hospital, at which point she was identified to have a fracture.
The parties agreed to orders that the mother’s time with the children be professionally supervised from this point.
From late 2021 the mother’s time with the children occurred under the supervision of CC Family Services.
2022
In early 2022 the children’s time with the mother in accordance with the orders commenced to be supervised by DD Family Services.
In early 2022 an incident occurred during supervised time that caused a referral to be made to the welfare agency and then to the police. This involved a redness in X’s genital region, and X describing that she was sore there. Comments were made by X that a man with a frozen (taken to be a reference to the children’s movie “Frozen”) sword had put it down there and up her bottom as well.
The most direct account of the incident is found in the supervisor’s contact report notes from early 2022.
The relevant part occurred at the end of the visit,[19] when X used the toilet and while doing so told the mother that she had a red vagina. The supervisor described that it appeared red between the vulva and anus, “almost to the liking of a nappy rash”. The supervisor further described “[X] then told her mum that the man with the Frozen (being a children’s movie) sword touched her there with his sword”. X repeated this on being further questioned and then smacked her own bottom. The mother prompted X as to where it may have happened, suggesting day care and home. The supervisor noted X to have “said innocently ‘at my house.’” [X] did not respond when asked by the mother who had done it, but repeated “he put the sword in my bum bum”.
[19] Exhibit ICL3.
The supervisor suggested that the mother try to take a photograph, describing that the mother remained calm and playful. When asked again what the man’s name was, X said something but neither the supervisor nor the mother (who each heard it differently) could make it out.
With the supervisor’s assistance the mother asked X to hold her legs up and took some pictures. When asked by the mother what sort of game was played with the man with the sword, X said that “he made me feel not better”. When asked again what the person’s name was, X replied “his names called […]”. The supervisor however thought that what the mother had said sounded like “what’s [grandpa’s] name” rather than “what’s the person’s name?”
The name X used is the name used by the maternal grandfather.
The visit ended shortly after. The supervisor reported the incident to the father. A report was made to the welfare department. The father took X to see a doctor the same day. That doctor examined X. She noted no abnormal findings, and neither rash nor redness. She noted a normal appearance of genitals and anal area. No comment was offered as to the significance of such a presentation.
In early 2022 X was interviewed by a detective of the City F Child Abuse team and observed by after hours caseworkers. X gave fragmented responses to unidentified questions being asked. At some point she referred to her father. She referred to the man with the Frozen sword having touched her “there.”
Later in the report it is described that there was “no substantiated sexual abuse”. It is quite unclear what this conclusion means. No further investigation was proposed.
In early 2022, following the frozen sword incident, the mother’s time with the children was suspended.
A short time later, the mother’s time with the children recommenced under the supervision of EE Family Services.
At trial, neither party, nor the ICL, pursued a case that the frozen sword incident indicated a risk of harm to X. It may be accepted that the evidence in relation to what X said and did in respect of the frozen sword is not sufficient to suggest that X is at risk of sexual harm, or that the description was of some form of sexualised incident.
In early 2022 the mother had a manic relapse. Having suffered sleep disturbance and low mood for the previous two weeks, at this time, she was taken from her workplace by ambulance to hospital, and was treated as an inpatient at the specialist unit at AA Hospital. She was scheduled under the NSW mental health legislation. Her family reported that she had deteriorated and thought that the children’s supervisor was taking her makeup. Dr BB considered that this “was precipitated by significant stressors associated with the proceedings of family court regarding the custody of her children”.
The mother was still in hospital several days later. She became concerned about her family, fearing that they were dead, and was unable to be deescalated verbally.
The mother agreed that it would not be safe for the children to stay with her while she was in that state. She further agreed that the father would need to know what was going on with her in order to be able to explain it to the children.
Following her discharge, her lawyers sent the discharge papers to the father’s lawyers. He then sought the mother’s permission to speak with her treating practitioners.
In mid-2022, the mother recommenced spending time with the children following her discharge from hospital.
In late 2022 the father unilaterally decided to change the supervision providers from EE Family Services to DD Family Services.
2023
In January 2023 the supervisors noted difficulties with the maternal grandmother attending contact visits, describing a failure to comply with directions from the supervisors, and describing a “manic feeling” to visits when she attended. In February 2023 the supervisors told the mother that her mother could not attend every visit.
The children’s time with the mother was suspended for a period from 8 February 2023.
In March 2023 Dr BB reported to the mother’s general practitioner. He described the mother as euthymic since discharge, and described the mother having developed PTSD symptoms following domestic violence from the father. He recommended the continuation of medications and psychotherapy.
In June 2023 the supervisors described that the mother lacked the ability to discipline the children, for example allowing X to snatch from Y and to hurt the mother.[20]
[20] Exhibit ICL2.
In September 2023 Dr BB reported to the mother’s general practitioner. He reported that although the mother was experiencing ongoing PTSD symptoms she was in remission in respect of a mental disorder, and recommended review in twelve months.
In December 2023 Dr BB reported to the mother’s general practitioner that the mother’s mental health disorder was in remission, and her PTSD in partial remission. He recommended review in 12 months, but also an increase in one of the mother’s medications.
2024
The parties reasonably concentrated upon contact visit reports from 2024 as those most significant to illustrating more current issues in respect of the time the children are spending with the mother.
The ICL identified the contact visit of 12 January 2024[21] as significant, containing a comment as to the mother’s inconsistency in dealing with X cleaning up after herself.
[21] Exhibit ICL4.
The notes display a positive, interactive, appropriate and warm interaction between the mother and the children. Any perceived default on the part of the mother was innocuous.
The ICL next identified the contact visit of 20 January 2024[22] as significant, containing a positive account of the children’s time with the mother.
[22] Exhibit ICL4.
They engaged in creative pretend play together, the mother facilitating the children’s ideas. The mother provided appropriate care for the children. They played, rested and chatted together.
The ICL next identified the contact visit of 21 January 2024 as significant, describing this as a missed opportunity to provide discipline to X.
The mother dealt with X engaging in difficult behaviour, remaining calm and engaging with X in relation to her poor behaviour. The mother was noted to engage in a warm and gentle manner. Any perceived default on the part of the mother was innocuous.
The ICL next identified the contact visit of 26 January 2024 as significant, describing this again as a missed opportunity to discipline X, or to respond to X in a firmer manner.
X spoke to the mother rudely, the mother responding in a soft and gentle manner, seeking to redirect X. X later hit the mother, and threw toys as she went to her room when the mother firmly told X that hitting was not okay.
Even if it were accepted that the mother’s response to X’s consistently poor behaviour during this visit was not optimal from a disciplinary perspective, the visit demonstrated calm and gentle engagement on the part of the mother. No significant deficit in her parenting capacity was apparent.
In early 2024 X commenced Kindergarten at FF School. The mother was not permitted to attend.
In early 2024 the mother was admitted to hospital suffering from stroke-like symptoms. A further admission for stroke-like symptoms took place a short time later. The mother accepted that these symptoms had come on suddenly, causing weakness in her arms and legs, although she described that she was still able to walk. The mother agreed that it would not then have been safe for her to have driven with the children (not that such had occurred).
The children spent time with the mother on 7 February 2024. The mother, in response to Y coughing, was recorded to have become preoccupied with Y’s cough and unable to focus on anything else for the last half hour of the visit.[23] The mother denied that her response was as extreme as described. This was potentially an example of the children being exposed to the mother’s mental health vulnerabilities, although even if this was so, no particularly harmful effect was identified.
[23] Exhibit F25.
While the mother was also criticised for inconsistency in setting boundaries for the children, the engagement with the children was described as warm and respectful of the children, together with a high level of engagement in all play interactions. The mother was noted to have provided a safe and comfortable environment.
To the extent that the visit may illustrate the mother’s mental health impacting the children, any effects appear to have been minimal.
The following day the mother described concerns that her parents’ identities had been stolen, and in early 2024, during a conversation with the mother, her family violence social worker called an ambulance for the mother, which the mother asked to be cancelled.
In early 2024 Y commenced pre-school at FF School.
The mother was again scheduled pursuant to the NSW mental health legislation in early 2024 and discharged some time later. On attendance at the hospital she had possession of seven mobile telephones, and described to the doctors that she had felt overwhelmed since Christmas. The mother’s sister described that the mother had thought that the sister was in danger as their parents had been replaced by imposters. The sister also reported that the mother had been hearing children screaming when there was no screaming, and that dogs barking carried a special meaning for her.
On discharge, the maternal grandmother said to the mental health team that she did not want to be the mother’s mother anymore.
In early 2024 Dr BB reported to the mother’s general practitioner. He described that the mother had been diagnosed with relapse of her mental health disorder, but also described that the mother’s symptoms were “consistent with a behavioural disorder subsequent to significant stress”. The particular stress related to the mother’s inability to attend X’s first day of school. He again described the mother’s mental health disorder as in remission, and PTSD in partial remission.
On 28 April 2024 the children spent time with the mother for the first time since February.
The ICL next identified the contact visit of 11 May 2024 as significant. On this occasion X threw a toy and went to her room. The mother is described as, after a short time, approaching and speaking to X, X having calmed down. It was noted that the thrown toy was not discussed.
The mother was attentive to the children and their needs, facilitated play, displayed warmth, was engaged, ensured adequate hygiene, and dealt with sibling disputes. The mother was described as always respectful of the children, and that the children displayed no signs of discomfort when with her.
The ICL next identified the contact visits of 18 May, 25 May, 8 June, 9 June and 22 June 2024 as significant as they described nothing negative in relation to the visits.
During the visits the mother was noted to be engaged, responsive, gentle, warm, attentive and appropriate in her interactions with the children.
The ICL next identified the contact visit of 6 July 2024 as significant, describing this as an example of the mother mismanaging X’s demands. However, the bulk of the report indicated that the mother had dealt appropriately with X’s poor behaviour and, in particular, had handled X’s raising of a difficult conversation (about X sometimes wanting to live with the mother) “appropriately and adeptly” as she validated X’s feelings without causing X to dwell upon them.
Again the mother was engaging, attentive, warm and appropriate toward the children.
The ICL next identified the contact visit of 7 July 2024 as significant, on the basis that there was no negative aspect of the mother’s care of the children. The mother was observed to have engaged with poor behaviour by X, and to have “handled well” a sibling argument. The mother engaged in creative play with the children, was calm, and provided appropriate care for the children.
On 9 July 2024 Dr BB reported to the mother’s general practitioner. He described both the mother’s mental health disorder and PTSD as in remission.
The ICL next identified the contact visit of 20 July 2024 as significant. X was excited and overstimulated while playing. The mother calmed her, but X drew on the mother’s face. The mother was noted to have “appropriately and firmly told [X] this was not acceptable”. X continued to draw on the mother’s face, and the mother continued to correct her. X apologised to the mother.
The mother was observed to be calm with the children, appropriately firm and attentive. She provided appropriate care and engaged in creative play with the children.
The ICL identified the contact visit of 3 August 2024 as significant, this being an incident where X engaged in significant misbehaviour whilst in the mother’s care. The catalyst was the mother refusing X more chips. X ran off to her room with the chips, yelling at the mother that she hated her and that she would hurt her. X kicked, bit and hit the mother as the mother sought to remove the chips. X ran through the house screaming and smashed a vegemite jar by throwing it onto the tiles. She picked up the broken jar and squeezed it. The mother removed the jar and checked X for cuts. X ran into the bathroom and threw ornaments about. The mother said she would call the father if X did not calm down. The mother imposed a consequence of no more chips.
X calmed and begged the mother not to tell the father.
At trial the mother was criticised on the basis that denying more chips was inadequate as a response.
Importantly the mother remained calm in dealing with a difficult tantrum, being a circumstance neither she nor the father had previously encountered from X. The circumstances do not point to a deficiency in the mother’s parenting capacity, as she dealt reasonably with difficult behaviour by X.
The next identified visit by the ICL was 17 August 2024, on the basis that there was no negative description of the mother. The mother was appropriate, consistent, engaged, and recorded to have “encouraged [X] to problem solve.”
The final visit identified by the ICL was of 18 August 2024. During this visit X hit the mother when the mother told her that the time for the visit was almost over. The reaction was described by the supervisor as unexpected. The mother asked X not to hit her, and attempted to engage with a hostile X. The mother was noted to have been responsive, respectful and calm during the visit although she struggled with the outburst from X and was unable, on that occasion, to calm her.

(b)Authorise the father to liaise with the mother’s mental health treaters and do all acts and sign all documents as may be necessary to authorise same, and this order shall act as an authority for the father to do so;
(c)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 7 days of any change;
(d)For a period of three (3) years following the making of these orders, provide correspondence to the father every three (3) months from her treating psychiatrist confirming the status of her mental health treatment; and;
(e)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.

(9)In the event that:
(a)The mother is admitted to any hospital or mental health facility for mental health treatment after 15 May 2028 and the Father was not notified by the maternal Grandfather or maternal Aunt within 24 hours of such admission; or
(b)Either the maternal Grandfather or maternal Aunt becomes aware that a call has been made to the health team and the Father was not notified by the maternal Grandfather or the maternal Aunt within 24 hours of such call being made;

~~then for a period of six (6) months thereafter, the mother’s time with the children shall be subject to supervision by CC Family Services at the parties’ equal shared expense.~~
(10)In the event that the mother does not comply with Order 8 herein, the father be at liberty to suspend the children’s time with the mother until such time that the mother is compliant with same and provides documentary evidence to that effect.
(11)The children be at liberty to telephone the father at all times they spend time with the mother on a telephone that the father shall provide to the children, and the mother shall not obstruct or prevent the children from doing so.

Special occasions
(12)The mother’s time with the children is suspended on Father’s Day, such that the children spend time with the father on Father’s Day.
(13)The father’s time with the children is suspended between 10:30am - 3:30pm on Mother’s Day, such that the children spend such time with the mother subject to Order 7 herein on Mother’s Day between 10:30am - 3:30pm.
(14)Effective from Y’s birthday in 2028 and continuing in each year thereafter, the children shall spend time with the mother subject to Order 7 herein on each of their respective birthdays as follows:
(a)If the birthday falls on a weekday, the children shall spend time with the mother from 9:00am - 11:00am on the following Saturday or Sunday as nominated by the father; and
(b)If the birthday falls on a weekend, the children shall spend time with the mother from 9:00am - 11:00am.

(15)Subject to Order 7 herein, for Christmas:
(a)The mother’s time with the children pursuant to Order 5 is suspended on Christmas Day, such that the children spend time with the mother over the Christmas period as follows:
(i)For the years 2024 - 2027, the children shall spend professionally supervised time with the mother from 9:00am - 11:00am on Christmas Eve or such other date in the week prior to Christmas Day that the supervision service can accommodate.
(ii)Effective from Christmas Day 2028 and continuing in each even numbered year thereafter, the children shall spend time with the mother from 9:00am - 2:00pm on Christmas Day.

Changeovers
(16)For the purpose of facilitating contact between the children and the mother pursuant to these orders, 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.

Schooling
(17)The parties authorise any educational institution which the children attend to provide each of the parties with copies of all school reports, notices, photographs, order forms and any other documents ordinarily provided to parents and to provide each of the parties with access to any on line ‘App’ used by the school to share information about the children and/ or their education.
(18)Both parties will keep themselves informed of all school activities and functions through the school websites, online apps (if applicable) and online newsletters.
(19)Both parties 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.
(20)Each parent be at liberty to provide a copy of these Orders to the children’s school(s).

Health
(21)The parties shall keep each other informed about the children’s health.
(22)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 (3) 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
(23)Each of the parties shall provide the other with their new telephone number and email address within 48 hours of a change to such information occurring.
(24)Each of the parties shall provide the other with no less than 21 days advance notice of any change to their residential address.

Travel and Passports
(25)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 6 week’s advance notice, and the mother’s time pursuant to these Orders shall be suspended during that three-week block.
(26)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
(b)No less than two weeks prior to departure, the father shall provide the mother with a copy of the children’s return tickets.

(27)For the purposes of 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.
(28)The father shall hold the children’s Passports.

Non-denigration
(29)Each of the parties shall be restrained by injunction from denigrating the other party or any member of their family to or in the presence or hearing of the children and to use his or her best endeavours to ensure that no one else does so in the presence or hearing of the children.

EXHIBIT ICL6 - ICL MINUTE OF ORDERS SOUGHT
(1)All prior parenting orders are discharged.
(2)The father shall have sole parental responsibility and sole decision-making authority for the children X born 2018 and Y born 2020 (“the children”) in relation to health and education and in exercising sole decision-making the father shall:
(a)Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues in relation to the children proposed to be made by the father;
(b)Provide the mother with all relevant information which is in the possession of the father relating to the long-term issue
(c)Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
(d)The Mother provide to the father any input which she wishes to express with respect to the decision to be made within 14 days of the date such notice was received from the Father;
(e)The Father to consider the mother’s input and if necessary, clarify such input;
(f)The father shall Inform the mother as to the decision made prior to making such decision; and
(g)The father shall confirm with the mother as to when and how the decision was within 48 hours of same.

(3)Notwithstanding Order 2 above in relation to education, that within 7 days of the date of these Orders that the Father shall do all acts and things necessary to: -
(a)Cause the Mother to be named as a parent on the children’s school enrolment forms; and
(b)Provide the Mother’s contact details being her email address ...@... and mobile telephone number to the children’s preschool and school; and
(c)Authorise that this Order shall act as an irrevocable authority to any preschool or school that the child/ren attend from time to time to provide to the Mother information about the child/ren including but not limited to the children’s attendance, enrolment, progress, photographs and photograph Order forms, school reports, school newsletters, notification of all school activities, events and parent teacher nights; and
(d)Authorise that this Order shall act as an irrevocable authority to any preschool or school that the child/ren attend to permit the Mother to attend all preschool/ school events that ordinarily allow for parental attendance including but not limited to assemblies, book parades, concerts, mother’s day morning tea, parent/teacher nights, sporting carnivals and the child Y first day of primary school; and
(e)That each parent shall keep the other informed of the details of any school, educational facility or extra-curricular activity provider at which the child/ren attend.
(f)That both parents shall be at liberty to attend all educational, extra-curricular functions, sports, events and activities that the child/ren may be involved in from time to time or which parents are normally invited to.
(g)Provide a copy of these Orders to the child/ren’s preschool and school that they attend from to time to time.

(4)Notwithstanding Order 2 above in relation to health, that 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 that this Order shall act as an irrevocable authority to any medical practitioner and 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; and
(c)Provide a copy of these Orders to the child/ren’s medical practitioners and treating allied health practitioners.

(5)That save and except in the case of a medical emergency the Mother shall be and is hereby restrained, by injunction, from attending or causing the child/ren to attend upon a medical practitioner and/or allied health practitioner while spending time with the child/ren.
(6)That in the event of a medical emergency where the Mother causes the children to attend upon a medical practitioner and/or allied health practitioner while spending time with the child/ren then the Mother shall, as soon as reasonably practicable and where possible, prior to consenting to any treatment on behalf of the children, contact the Father and: -
(a)Advise the Father of the circumstances in which an emergency has arisen; and
(b)Advise the Father of the presenting medical problem of the child/ren; and
(c)Advise the Father of the name and contact details of the medical practitioner/ allied health practitioner; and
(d)Facilitate, where reasonably practicable, the Father being present, even by telephone or audiovisual link, for any advice/ consultation/ treatment with a medical practitioner or allied health practitioner pending the Fathers physical attendance.

(7)That the parties shall have Joint Decision-Making Responsibility for all other major long-term decisions for the children including but not limited to: -
(a)The children’s name;
(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.

(8)The children shall live with the father.
(9)Subject to orders 17-20 below, 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 6 months thereafter: -
(i)Each Wednesday from 3pm or afterschool until 7pm; and
(ii)Alternate Saturdays from 9am until 2pm.

(b)Thereafter and for a further period of 6 months:
(i)Each Wednesday from 3pm or afterschool until 7pm;
(ii)Alternate weekends, on Saturday and Sunday from 9am until 2pm.

(c)Thereafter and for a further period of 6 months: -
(i)Each Wednesday from 3pm or afterschool until 7pm;
(ii)Alternate weekends, on Saturday and Sunday from 9am until 4pm.

(d)Thereafter and for a further period of 6 months: -
(i)Each Wednesday from 3pm or afterschool until 7pm;
(ii)Alternate weekends from Saturday at 9am until Sunday at 4pm.

(e)Thereafter:
(i)Each Wednesday from 3pm or afterschool until 7pm;
(ii)Alternate weekends from 3pm or afterschool on Friday until Sunday at 4pm.

(10)For the purpose of the mother’s time with the children in accordance with Order 9 above such time is conditional on: -
(a)The mothers compliance with Order 18 to 22 below; and
(b)The time between the mother and children pursuant to Order 9(a) (b) being supervised at all times by either the maternal grandmother, Ms GG or maternal grandfather, Mr C, maternal Aunt, Ms D or such other person as agreed between the parents in writing.
(c)The time between the mother and children pursuant to Order 9 (c) , (d) and (e) occurring in the presence/substantial attendance of either the Maternal grandmother, Ms GG or maternal Grandfather, Mr C or maternal aunt, Ms D or such other person as agreed between the parents in writing.
(d)All overnight periods referred to in Order 9 (d) and (e) to occur at the home of either the maternal grandmother, Ms GG or maternal grandfather, Mr C or maternal aunt, Ms D.
(e)The maternal grandmother, Ms GG and maternal grandfather, Mr C and Maternal Aunt, Ms D signing and filing an undertaking with the Court
(f)That in the event that the maternal grandfather, maternal grandmother, maternal aunt are unavailable to supervise/ be in substantial attendance/ present during the childrens time with the mother and the parents are unable to agree on another supervisor then the mother shall be at liberty to arrange professional supervision with the parents to meet the cost of the same equally.

(11)The above Orders shall be suspended on days of special significance and the children shall spend time with each of their parents, (with the mother’s time subject to orders 17-20 below), as agreed between the parents in writing, and failing agreement: -
(a)On each of the children’s birthday from 3pm until 7pm, with the parent that they are not otherwise spending time with; and
(b)On each of the parents birthday from 3pm until 7pm, if a school day, and from 10am until 4pm, if not a school day, with the parent who is celebrating their birthday; and
(c)On Mother’s Day from 10am until 4pm with the mother; and
(d)On Father’s Day from 10am until 4pm with the father; and
(e)In even numbered years from 10am on Christmas Eve until 2pm on Christmas Day with the father.
(f)In even numbered years from 2pm on Christmas Day until 6pm on Boxing Day with the mother.
(g)In odd numbered years from 10am on Christmas Eve until 2pm on Christmas Day with the mother.
(h)In odd numbered years from 2pm on Christmas Day until 6pm on Boxing Day with the father.
(i)In even numbered years from 10am on Good Friday until 6pm on Easter Sunday with the mother.
(j)In odd numbered years from 10am on Good Friday until 6pm on Easter Sunday with the father.
(k)Commencing 2028, for the first half of the short school holiday periods at the conclusion of the Term 1, 2, 3 school term with the mother; and
(l)Commencing 2028, for the second half of the short school holiday periods at the conclusion of Term 1,2,3 with the father.

(12)For the purpose of the Mother’s time with the children in accordance with Order 11 above such time is conditional on: -
(a)The mothers compliance with Order 18 to 22 below.
(b)For twelve months following the date of these Orders, the time between the mother and children being supervised, at all times, by either the maternal grandmother, Ms GG or maternal grandfather, Mr C or maternal aunt, Ms D or such other person as agreed between the parents in writing.
(c)Thereafter the time between the mother and children occurring in the presence/substantial attendance of either the maternal grandmother, Ms GG or maternal grandfather, Mr C or maternal aunt, Ms D or such other person as agreed between the parents in writing.
(d)Thereafter all overnight periods referred to above to occur at the home of either the maternal Grandmother, Ms GG or maternal grandfather, Mr C or maternal Aunt, Ms D.
(e)The maternal grandmother, Ms GG and maternal grandfather, Mr C and maternal aunt, Ms D signing and filing an undertaking with the Court in accordance with Order 23 below prior to time commencing in accordance with these Orders.
(f)That in the event that the maternal grandfather, maternal grandmother, maternal aunt are unavailable to supervise/ be in substantial attendance/ present during the childrens time with the mother and the parents are unable to agree on another supervisor then the mother shall be at liberty to arrange professional supervision with the parents to meet the cost of the same equally.

(13)In the event that:
(a)The mother has an admission to hospital or the psychiatric hospital; or
(b)The mother has a mental health relapse; or
(c)The mother is non-compliant with any medication regime or mental health treatment plan; as identified by the mother, maternal grandmother, maternal grandfather, maternal aunt, mothers medical practitioner, mental health practitioner or allied health practitioner, 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, the mother’s time with the children shall thereafter and forthwith resume in accordance with these orders from the point at which they were terminated.

(14)Unless changeover is to occur at pre-school/school/day-care/after-school care, the mother or her nominee shall collect the children from the father’s residence at the commencement of the children’s time with the mother and the father or his nominee shall collect the children from the mother’s residence at the conclusion of the children’s time with the mother.

(15)The mother shall communicate to the children by audio/visual means each week as agreed between the parents and failing agreement, every Tuesday and Thursday evening at any time between 4:00pm and 4:30pm with the mother to initiate the call and the father to ensure the children are available to take the call.
(16)For the purpose of the parents communicating with each other the parents shall communicate via the Our Family Wizard parenting application save and except for in the case of a medical emergency where they shall contact each other via telephone call and/or text message.
(17)The mother must continue to attend upon her general practitioner, psychiatrist, psychologist, and any other associated health care provider as recommended by her general practitioner, psychiatrist, and psychologist.
(18)Within 14 days of the date of the Final Orders, the mother must 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.
(19)The mother irrevocably authorises and directs, and this Order acts as such authority and direction to her general practitioner, psychiatrist and psychologist, to contact the father by email and inform them in the event that: -
(a)The mother has failed to comply with recommendations as to attendance upon the treating practitioner; or
(b)The mother has failed to comply with the recommendations of treatment; 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.

(20)From the date of these Orders and for a period of 2 years thereafter, that the Mother shall provide, once per quarter being on the 31^st of January, 30^th of April, 31^st of July and 31^st of October, to the father a letter from her treating psychologist and psychiatrist, if attended upon during that period, that provides for: -
(a)The Mothers engagement with her psychologist and psychiatrist (if attended upon during that period); and
(b)The Mothers treatment including frequency of attendances and any future scheduled assessment or review date; and
(c)The Mothers ongoing diagnosis and prognosis.

(21)Pursuant to s68B 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 child or either of them or via written correspondence or on social media;
(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 from permitting any other person to do so;
(c)Physically disciplining the children or either of them or permitting any other person to do so.

(22)Each parent shall keep the other informed of their mobile telephone number, residential address and email address and notify the other within 24 hours of any change thereto.
(23)Each parent shall be at liberty to provide to the children’s school and health practitioners a copy of these orders.
(24)Upon the request of either parent and the presentation of a passport application or passport renewal form to the other parent, both parents shall jointly sign and do all acts and things necessary to obtain and renew an Australian passport for the children including:
(a)Filling out all relevant sections and signing the Passport Application forms;
(b)Paying one half of the ordinary Passport fee in the manner and timeframe required.
(c)Providing all supporting documentation necessary for the Applications; and
(d)Adhering to any time requirements for lodgement and Passport interviews.

(25)The father shall retain the children’s passport.
(26)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.

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

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