KADEJEVIC & KADEJEVIC - [2019] FamCA 270

FAMILY COURT OF AUSTRALIA

KADEJEVIC & KADEJEVIC

[2019] FamCA 270

FAMILY LAW – CHILDREN – Interim application – Where the children live with the father and spend supervised time with the mother – Where the mother seeks that the children’s time with her be extended and unsupervised – Where the mother has suffered from alcohol use disorder – Where the evidence establishes that the mother has been abstinent from consuming alcohol for some time – Orders made for the children’s time with the mother to be increased – Orders made for that time to be unsupervised.

Family Law Act 1975 (Cth) ss. 60CC, 61DA, 65DAA

Acton & Burton [2015] FamCA 469
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2015] FamCAFC 222
Goode & Goode (2006) FLC 93-286
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Marvel & Marvel (No. 2) [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Kadejevic

RESPONDENT:

Mr Kadejevic

FILE NUMBER:

SYC

2017

DATE DELIVERED:

2 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

10 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Boyce Family Law & Mediation

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Order 1 made on 25 August 2017 be varied so that the children spend time with the mother unsupervised pursuant to the time provided in the interim orders dated 17 February 2017 and varied on 25 August 2017, as follows:
(a)In week one, from after school Wednesday to before school Thursday;
(b)In week two from after school Friday until before school on Monday;
(c)On special occasions, as follows:
(i)If Christmas falls during time with the father, the children will spend time with the mother as agreed between the parties in writing but failing agreement from 10.00 am on Christmas Eve to 3.00 pm on Christmas Day;
(ii)If Christmas falls during time with the mother, the children will spend time with the father as agreed between the parties in writing but failing agreement from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day;
(iii)If the children’s birthday falls during time with the father, and the children will spend time with the mother on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm; and
(iv)On the children’s birthdays, if the children’s birthdays fall during time with the mother, and the children will spend time with the father on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm;
(d)During school holidays, as follows:
(i)In the shorter school holidays the children shall spend the first week with the mother and the second week with the father; and
(ii)In the January/December school holidays the children shall spend time between the parties on a “week about” basis, with the children spending the first week of the school…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KADEJEVIC & KADEJEVIC [2019] FamCA 270
Case: [2019] FamCA 270
Decision Date: 2 May 2019

CaseChat Overview and Summary

This matter concerned parenting orders between the parties, the mother and the father, regarding their children. The court, presided over by McClelland DCJ, was tasked with varying existing orders and making new provisions to govern the children's time with each parent.

The court was required to determine the specific arrangements for the children's time with each parent, including unsupervised time for the mother, and to address issues surrounding special occasions and school holidays. Further, the court needed to consider provisions regarding the mother's alcohol consumption, the mother's ongoing consultation with a medical professional, and the appointment of an independent expert to investigate matters relevant to the children's best interests under section 60CC of the *Family Law Act 1975* (Cth). The court also had to address orders concerning the parties' conduct towards each other in the presence of the children, communication about the proceedings with the children, and the exchange of information regarding the children's health and contact details.

The court made detailed orders varying the existing arrangements for the children's time with the mother, specifying the frequency and duration of unsupervised time, as well as arrangements for special occasions and school holidays. Provisions were made for the commencement and conclusion of school holidays and for the timing of exchanges on non-school days. The court also ordered that the father deliver the children to the mother's residence and the mother to the father's residence at the conclusion of their respective time, unless otherwise agreed or occurring at school or holiday care. A significant order restrained the mother from consuming alcohol for 24 hours prior to and during her time with the children. Furthermore, by consent, an expert was to be appointed to investigate and report on matters relevant to the children's best interests, with a detailed process outlined for the selection of this expert should the parties be unable to agree. Additional consent orders addressed mutual communication, the prohibition of denigration, limitations on discussing proceedings with the children, direct liaison with medical practitioners, and the notification of changes in contact details and any illness or injury to the children.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Order 1 made on 25 August 2017 be varied so that the children spend time with the mother unsupervised pursuant to the time provided in the interim orders dated 17 February 2017 and varied on 25 August 2017, as follows:

(a) In week one, from after school Wednesday to before school Thursday;

(b) In week two from after school Friday until before school on Monday;

(i) If Christmas falls during time with the father, the children will spend time with the mother as agreed between the parties in writing but failing agreement from 10.00 am on Christmas Eve to 3.00 pm on Christmas Day;

(ii) If Christmas falls during time with the mother, the children will spend time with the father as agreed between the parties in writing but failing agreement from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day;

(iii) If the children’s birthday falls during time with the father, and the children will spend time with the mother on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm; and

(iv) On the children’s birthdays, if the children’s birthdays fall during time with the mother, and the children will spend time with the father on their birthdays as agreed between the parties in writing but failing agreement from 3.00 pm until 6.30 pm;

(d) During school holidays, as follows:

(i) In the shorter school holidays the children shall spend the first week with the mother and the second week with the father; and

(ii) In the January/December school holidays the children shall spend time between the parties on a “week about” basis, with the children spending the first week of the school holidays with the father; and

(e) Such other times as are agreed between the parties in writing.

For the purpose of order (1)(d) herein, the school holidays shall be deemed to commence at the end of the last school day of term and changeover shall occur at 3.30 pm, seven (7) days after the commencement of the school holidays.

On non-school days, during school term, in substitution for the reference to “after school”, the time shall be 3.30 pm and, in substitution for reference to “before school”, shall be 9.00 am.

Except where changeover occurs at school or holiday care or as the parties otherwise agree in writing, the father shall deliver the children to the mother’s residence at the conclusion of the children’s time with the father and the mother shall deliver the children to the father’s residence at the conclusion of the children’s time with the mother.

Should either of the parties be unable to care for the children for a period of one or more nights, the other party should be given first right of refusal before the party currently caring for the child makes alternative childcare arrangements.

The mother be restrained from consuming alcohol 24 hours prior to the children coming into her care and during such times that the children are in her care.

The mother continue to consult Dr M in accordance with Dr M’s recommendations and undertake such tests, if any, as may be recommended by Dr M.

By consent, an appropriately qualified expert, as agreed between the parties, be appointed to investigate and report on those matters set out in s 60CC of the Family Law Act 1975 (Cth) and such other matters as may be reasonably requested by the parties and considered by the expert to be relevant to the determination of what parenting orders are in the best interests of the children.

In the event that the parties are unable to agree as to the identity of the expert to be appointed pursuant to order 8 herein, the expert shall be selected by the following process;

(a) Within 14 days of the date of these orders, the mother shall provide to the father the names and curriculum vitaes is of three (3) appropriately qualified experts; and

(b) Within seven (7) days of receiving written notification from the mother in accordance with order 9(a) herein, the father shall notify the mother, in writing, of the name of the expert selected by him from the list of three (3) alternatives provided by the mother.

10.

The parties shall provide to the expert copies of all documents that they have filed in these proceedings or tendered as evidence in their case.

11.

The parties shall follow all reasonable directions of the expert and will pay equally all costs in respect to the preparation of the expert’s report.

12.

By consent, neither party shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence or hearing of any persons who engages in such conduct.

13.

By consent, other than to the extent necessary to advise the children of the outcome of these proceedings and the fact that they will be interviewed by a family consultant, neither party is to discuss with the children these proceedings or issues of controversy that are being considered in these proceedings. Each party shall ensure that the children are permitted to telephone the other party at reasonable times as requested by the children or by the other party

14.

By consent, each party shall do all acts and things necessary to provide all necessary authorities to enable the other party to liaise directly with the children’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to the children’s health to the extent permitted by law.

15.

By consent, each party shall keep the other advised of the current email address and contact telephone number and advise the other of any change within forty-eight hours of such change occurring.

16.

By consent, each party shall notify the other of any illness, medical condition or injury suffered by either child whilst in that party’s care as soon as reasonably practicable shall provide any reasonable particulars as to the name and contact details of the child’s treating doctor and any hospital, medical facility or healthcare provider to which the child has been taken.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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