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KADEJEVIC & KADEJEVIC

KADEJEVIC & KADEJEVIC

Case [2017] FamCA 644 25 August 2017

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FAMILY COURT OF AUSTRALIA

KADEJEVIC & KADEJEVIC

[2017] FamCA 644

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother sought a variation to consent orders – Where the mother is recovering from a history of alcohol addiction – Where the father opposed to the variation of consent orders – consideration of Rice v Asplund – Court considers the mother’s application to vary consent orders on the basis of the mother’s commitment to rehabilitation in respect to her history of alcohol addiction and the period of time that she has abstained from consuming alcohol – Consideration of section 60CC factors – Court finds that there would be an unacceptable risk in allowing the children to spend time with the mother without a responsible adult whilst at early stages of recovery from alcohol addiction – Court finds it is impracticable to make an order for the children to spend equal or substantial and significant time with the mother – Court finds children’s time with the mother should be increased consistent with the availability of the maternal grandmother – Orders varied.

Family Law Act 1975 (Cth) ss 4AB, 43, 60B, 60CA, 60CC, 61DA, 65AA, 65DAA

B and B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling [1998] FamCA 19
Johnson and Page (2007) FLC 93-344
Keats & Keats [2016] FamCAFC
M v M (1988) 166 CLR 69
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Newton & Henzel [2016] FamCA 323
Potter and Potter (2007) FLC 93-326
Rice v Asplund [1978] FamCA 84

SS v AH [2010] FamCAFC 13

Salah & Salah (2016) FLC 93‑713

Stott & Holger and Anor [2017] FamCAFC 152

APPLICANT:

Mr Kadejevic

RESPONDENT:

Ms Kadejevic

FILE NUMBER:

SYC

2017

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

31 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Boyce Family Law

Orders

Order 3 of the orders made on 17 February 2017 shall be replaced with the following:
The mother shall spend time with the children as follows:
(a) in week one, from after school Friday until 9 AM Saturday
(b) in week two from after school Friday until 5 PM on Sunday
provided always that the mother’s time the children shall be in the presence of the one of the following persons:
i.[Ms S] (being the maternal grandmother); or
ii.[Mr S] (being the current husband of [Ms S]); or
iii.any other person agreed upon by the parties.
Order 5 of the orders made on 17 February 2017 is varied to replace the words “the mother undertakes to collect the children from the former matrimonial home” with “the mother shall collect the children from school during school term and the…

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.

Continue reading KADEJEVIC & KADEJEVIC

Details

AGLC: KADEJEVIC & KADEJEVIC [2017] FamCA 644
Case: [2017] FamCA 644
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of *Kadejevic & Kadejevic*, the mother sought a variation of existing consent orders concerning her time with the children, which the father opposed. The court was presided over by McClelland J.

The central legal issues before the court were whether the mother's application to vary the consent orders should be granted, considering her recovery from a history of alcohol addiction, and how the best interests of the children, as guided by section 60CC of the *Family Law Act 1975* (Cth), should be prioritised in light of this history. The court was required to assess the risk associated with unsupervised time between the mother and children during her early stages of rehabilitation.

McClelland J applied the principles discussed in *Rice v Asplund* and considered the mother's commitment to her rehabilitation and her period of abstinence from alcohol. The court found that there was an unacceptable risk in allowing the children to spend time with the mother without a responsible adult present, given her ongoing recovery. Consequently, the court determined it was impracticable to make orders for equal or substantial and significant time with the mother at that juncture.

The court varied the consent orders to increase the children's time with the mother, but this time was to be supervised by the maternal grandmother, her husband, or another mutually agreed-upon person. The mother was also ordered to collect the children from school during school terms and from the former matrimonial home on non-school days.

Orders

Orders of the court

Order 3 of the orders made on 17 February 2017 shall be replaced with the following:

The mother shall spend time with the children as follows:

(a) in week one, from after school Friday until 9 AM Saturday

(b) in week two from after school Friday until 5 PM on Sunday

provided always that the mother’s time the children shall be in the presence of the one of the following persons:

i. [Ms S] (being the maternal grandmother); or

ii. [Mr S] (being the current husband of [Ms S]); or

iii. any other person agreed upon by the parties.

Order 5 of the orders made on 17 February 2017 is varied to replace the words “the mother undertakes to collect the children from the former matrimonial home” with “the mother shall collect the children from school during school term and the matrimonial home on non-school days”.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

KADEJEVIC & KADEJEVIC [2017] FamCA 644

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Cases cited in this decision · 12 of 12 shown

Stott & Holgar
[2017] FamCAFC 152 Para 6

…acts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[7] [7] Stott & Holger and Anor [2017] FamCAFC 152 referring to ( N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted w…
Keats & Keats
[2016] FamCAFC 156 Para 10

…fare of children simply to ignore an assertion because its accuracy has been put in issue. [9] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].…
Newton & Henzel
[2016] FamCA 323 Para 1

…The authorities applying the principles of Rice & Asplund [2] were considered in some detail by Macmillan J in Newton & Henzel [2016] FamCA 323. Her Honour’s useful summary was as follows: [2] Ibid. 12. In Rice & Asplund Evatt CJ said at page 78,905 as follows: The principles which, in my view, should apply in such…
Banks & Banks
[2015] FamCAFC 36 Para 1

…s should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. [4] [2015] FamCAFC 36.…
DL & W
[2012] FamCAFC 5 Para 1

…Although there have been amendments to the Act, not only does the rule in Rice & Asplund apply but as pointed out by the Full Court in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 the provisions of s 69ZN of the Act, which sets out the principles the court must apply in child related proceedings, apply to a hearing w…
SS & AH
[2010] FamCAFC 13 Para 10

…always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. [9] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].…
Marsden & Winch
[2009] FamCAFC 152 Para 1

…rved in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48 , which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)): (i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the…
SPS & PLS
[2008] FamCAFC 16 Para 1

…. The rule in Rice & Asplund may be applied as a preliminary matter or at the end of a full hearing. As Warnick J observed in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48 , which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)): (i)What the application of…
Malec v JC Hutton Pty Ltd
[1990] HCA 20

…Cowling v Cowling [1998] FamCA 19 Johnson and Page (2007) FLC 93-344 Keats & Keats [2016] FamCAFC M v M (1988) 166 CLR 69 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 N and S and the Separate Representative (1996) FLC 92-655 Napier and Hepburn (2006) FLC 93-303 Newton & Henzel [2016] FamCA 323 Potter and Potter (20…
M v M
[1988] HCA 68 Para 4

…In M v M (1988) 166 CLR 69 the High Court said at paragraph 78: To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].…
Rice & Asplund
[1978] FamCA 84 Para 2

…plund ,[1] the consent orders made on 17 February 2017 should not be revisited or, in the alternative, that it would be inappropriate to do so. [1] [1978] FamCA 84.…
Cowling v Cowling
[1998] FAMCA 19 Para 9

…edings it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling [1998] FamCA 19 at paragraph 18 the Full Court said, in respect to interim proceedings: Such proceedings are an abridged process where the scope of the inquiry is ne…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
43, 43(1)(c), 4AB, 60B, 60CA, 60CC, 61DA... 10 mentions (from Para 2)
Family Law Rules 2004 (Cth)
1 mention