KADEJEVIC & KADEJEVIC
[2017] FamCA 644
•25 August 2017
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 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 | 21 | Of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kadejevic & Kadejevic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 21 of 2017
| Mr Kadejevic |
Applicant
And
| Ms Kadejevic |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are involved in parenting and property proceedings before the Court. The father is the applicant in those proceedings. This matter concerns an application, filed by the mother on 5 July 2017, in which she seeks to vary consent parenting orders which were made on 17 February 2017. Those orders provided for the parties’ children, C born in 2010 and D born in 2012, to spend limited time with the mother pending her recovery from a history of alcohol addiction. The consent orders provided for a responsible adult or the maternal grandmother or her partner to be present at those times.
The father opposes the mother’s application. He submits that, consistent with the application of the principles identified by the Full Court in Rice v Asplund,[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.
The father proposed that a single addiction medicine specialist be appointed to review the mother’s history of alcoholism and to monitor the progress of her recovery. This was agreed to by the mother and orders were made to that effect at the hearing on 31 July 2017.
APPLICATIONS
Orders sought
The Minute of Order proposed by the mother set out in her case outline document were as follows:
1.That the Orders of 17 February 2017 be and are hereby discharged.
That the following Orders are made pending further order:
Parental responsibility and time
2.That the parties equally share parental responsibility of the children [C] (born … 2010) ([C]) and [D] (born … 2012) ([D]), (together the children).
3.That the children shall live with each parent on a week about basis as follows:
a.Until Monday 7 August 2017 the children shall live with the Father;
b.For a period of one week commencing on Monday 7 August 2017 and each alternate week thereafter the children shall live with the Mother; and
c.For a period of one week commencing Monday 14 August 2017 and each alternate week thereafter the children shall live with the Father.
Changeover
4.During school terms, changeover shall occur at the conclusion of school/after school care on Monday each week with the parent with whom the children are living to collect them from school, or as otherwise agreed between the parties.
5.During school holiday periods, changeover shall occur with the Mother collecting the children from the Father’s residence at 3.00pm on the Monday the children are to commence living with her and the Father collecting the children from the Mother’s residence at 3.00pm on the following Monday when the children are to commence living with him.
General orders
6.Neither parent shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence of or hearing of any persons who engage in such conduct.
7.Each parent shall ensure that the children are permitted to telephone the other parent at reasonable times as requested by the children or by the other parent and shall ensure that the children may speak to the other parent in privacy without distraction.
8.Each parent shall keep the other advised of their current email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
9.Each parent shall notify the other of any serious illness or injuries suffered by either child whilst in that parent’s care as soon as reasonably practicable and 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.
By way of Response to an Application in a Case filed 27 July 2017 the father sought the following orders:
1.That the Application in a Case of the Wife filed 5 July 2017 is dismissed.
2.That within seven (7) days the Wife select from either Dr [N], or Professor [R], to be appointed as single expert to prepare a report in these proceedings pertaining to the Wife’s chronic relapsing illness by way of her consumption of alcohol, and the arties instruct the selected expert in terms of the draft joint letter of instruction attached hereto and marked “A”, with the cost to be shared equally between the parties.
3.That the parties shall co-operate with all requests made by the selected single expert and will attend all interviews and provide all documents or information required by the expert for the purpose of preparation of his report.
4.That the Wife pay the Husbands costs of an incidental to these proceedings.
BACKGROUND
The mother was born on 30 June 1974 and is 43 years of age. The father was born on 20 July 1971 and is 46 years of age.
The parties commenced cohabitation in 2004 in Canberra. The parties moved to Sydney in around February 2006.
The parties married in 2006.
In 2010, C was born.
In 2012, D was born.
On 23 October 2015 the mother was admitted to the E Centre at Suburb B to undertake treatment in respect to alcoholism. The mother remained in that facility for a period of 3 weeks.
On 6 January 2016 the mother was admitted to the F Centre at Suburb T to undertake further treatment in respect to her alcoholism. That admission was for a period of 4 weeks.
On 4 March 2016 the mother was admitted as an inpatient to the addictions recovery centre at the G Hospital at Suburb W for further treatment in respect to her alcoholism. That admission was for 2 weeks.
On 27 October 2016 the wife was admitted to the G Hospital at Suburb W as a full-time inpatient to the addictions recovery centre. That admission was until 13 November 2016.
It is accepted that, in the period subsequent to the wife’s last admission to the G Hospital at Suburb W, she has attended therapy in respect to her history of alcoholism at least on a weekly basis.
On 22 November 2016 the parties separated but remained living together in the former matrimonial home located at X Road, Suburb P (the Suburb P property).
By way of Consent Orders on 17 February 2017 the following orders were made:
BY CONSENT IT IS ORDERED
PENDING FURTHER ORDER:
1. That each of the Applicant Father and Respondent Mother have equal shared parental responsibility in relation to the children [C], born …2010, and [D], born … 2012 (“the children”).
2. That the children shall live with the Applicant Father.
3. The Mother shall spend time with the children as follows:-
a. From 10am to 3pm commencing Sunday, 26 February 2017 and each Sunday thereafter until and including 26 March 2017.
b. Commencing Friday, 31 March 2017 and each alternate week thereafter from after school Friday to 3pm Saturday.
c. Commencing Sunday, 9 April 2017 from 10am to 3pm and each alternate Sunday thereafter.
d. As and from 26 April 2017 from after school to 6.45pm and each alternate Tuesday thereafter.
Provided always that the Mother’s time with the children shall be in the presence of any 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.
4. The children shall spend overnight time with the maternal grandparents on 22 April 2017.
5. For the purpose of implementation of the time spent by the children with the Mother, the Mother undertakes to collect the children from the former matrimonial home and drive the children directly to a location where either or all of [Ms S], [Mr S] or any other person agreed upon for the purpose of fulfilling their obligations pursuant to Order 3 and likewise the Mother is to return the children at the conclusion of the time she is to share with the children to drive directly back to the matrimonial home with the children.
6. That the Mother is forthwith restrained from:-
a. Consuming any alcohol during any period when the children are to spend time with her, or 24 hours prior to the commencement of such period.
b. Taking any prescribed medication in excess of the prescribed dosage.
c. Taking any prescribed medication less than the prescribed dosage.
7. That the Mother shall:-
a. Undertake Carbohydrate Deficient Transferrin (CDT) testing with an accredited pathology service, such testing to be undertaken on a weekly basis for a period of twelve months confirming that the Mother has no alcohol in her system in breach of Order 6(a), with the results of each such test to be provided to the Father or his legal representative within 7 days.
b. Until 31 March 2017, undertake supervised urinalysis as follows:-
i. During the 48 hour period prior to the commencement of any time she spends with the children, with the result to be provided to the Father’s solicitors within 7 days.
8. In the event that the Mother fails to comply with her obligation of testing as identified in Order 7 above or in the alternative the results of such testing identify the consumption of alcohol, then the children’s time with the Mother shall be suspended pending further Order.
9. That within 7 days of the date hereof the Father be declared to have the exclusive use and occupation of the former matrimonial home situated at [X Road], [Suburb P] to the exclusion of the Mother.
10. That within 7 days of the date hereof the Mother shall vacate the matrimonial home.
11. In addition to the times above, the Mother spend time with the children from 10am to 3pm on Mother’s Day on the same terms and conditions as identified above.
12. Each of the parties shall provide to the other reasonable time with the children on their birthdays and other special occasion such as the parents birthdays, Father’s Day and Mother’s Day.
13. That each of the parties do all acts and things and sign all documents necessary to obtain valid passports for the children, such passport to be retained by the Father. In the event of either of the parents wishing to remove the children from the jurisdiction for holidays or any other agreed purpose, notice shall be given by the party intending to remove them to the other party, such notice to be not less than 28 days identifying:
a.The destination of the trip;
b.Details of accommodation, flights and telephone number and other relevant material to enable contact to take place,
and upon such notice being given, the requesting party shall retain the passports for the duration of the period the children are absent from the jurisdiction and return the passports to the Father. It is to be noted that neither of the parties intend to remove the children from the jurisdiction before the matter is brought back to the Court.
14. The Mother is restrained from bringing the children into contact with [Mr H] without the husband’s permission first being obtained.
15. That by way of assistance to the Mother, the Father shall supply or cause to be supplied to the Mother, within 7 days from the date hereof, the sum of $50,000, $35,000 of which the Mother acknowledges to be by way of partial property settlement.
16. The Father shall permit the Mother to return to the home from time to time for the purpose of collecting her personal possessions and antique furniture and other items as agreed in writing between the parties provided that on those occasions the Mother gives at least 24 hours’ notice to the Father and provided further that all of her possessions and antique furniture is removed no later than one calendar mother from the date hereof.
17. The matter be stood over for further mention to 6 July 2017.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The mother vacated the Suburb P property in accordance with order 10 of the orders made on 17 February 2017.
The mother has attended for testing in respect to substance abuse as required by the consent orders. Those test results are negative.
The children have been spending time with the mother in accordance with the consent orders, other than in respect to Tuesday evenings. The mother asserts this has been because the paternal grandmother has not been available to spend time with the mother and the children on a Tuesday evening.
EVIDENCE
The mother relied on the following documents:
1.Amended Response filed 2 May 2017;
2.Affidavit of Ms Kadejevic filed 7 February 2017;
3.Affidavit of Ms Kadejevic filed 13 February 2017;
4.Family Report dated 15 February 2017;
5.Application in a Case filed 5 July 2017; and
6.Affidavit of Ms Kadejevic filed 5 July 2017.
The father relied upon the following documents:
1.Response to Application in a Case filed 27 July 2017; and
2.Affidavit of Mr Kadejevic filed 27 July 2017.
Rice v Asplund Issue
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 cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
13. In McEnearney & McEnearney (1980) FLC 90-866, referring to the decision in Rice & Asplund, said at page 75,499 as follows:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
14. Strauss J said in Freeman & Freeman (1987) FLC 91-857 at pages 76,470 to 76,471 in relation to the effect of ongoing litigation as follows:
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
15. 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 where the rule in Rice & Asplund is being relied upon. The first of those principles set out in s 69ZN is that the “… the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
16. 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 the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
17. Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:
71. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
81. … when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
…
84. … The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
18. In the more recent case of Poisat & Poisat (2014) FLC 93-597 the Full Court referring to the observations of Warnick J in SPS & PLS (supra) expressed their doubts at paragraph 54 “… as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made”.
As will be discussed, in this matter I am satisfied as to “the sufficiency of new events to provoke a new enquiry” in respect to appropriate parenting orders. That new event has been 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.
Accordingly, I propose to consider the mother’s Application in a Case seeking a variation of the interim parenting orders made on 17 February 2017.
Concepts and principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to parenting proceedings. Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring their parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[3]
[3]Family Law Act 1975 (Cth), s 43(1)(c).
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(3) provides that:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The orders made on 17 February 2017 provide for the parents to have equal shared parental responsibility.
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is confirmed in section 65AA.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. The main focus of the parties’ contentions has been the primary considerations set out in section 60CC(2). Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Additional Considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:
· Issues relating to the children - their views, level of maturity, culture and relationships.
· Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
· Issues of family violence.
· Effect of change.
· Practical difficulty of implementation of orders.
· Avoiding further proceedings.
· Other relevant matters.
Unacceptable Risk
In Banks and Banks[4] the Full Court said at [48];
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings 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.
Consistent with the decision of the Full Court in Banks & Banks,[5] I propose to focus on the central issue which is whether the children would face an unacceptable risk of harm if they were to spend time with their mother without another responsible adult being present.
[5] Ibid.
Determining whether a child would be at an unacceptable risk in spending time with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access” and, specifically, whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
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].
Writing extra-judicially, Hon. John Fogarty AM, a former Judge of this Court said):[6]
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
[6] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the court must give consideration to the facts 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 with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
If a determination is made that such a risk exists the Court is then required to consider whether that unacceptable risk can be ameliorated by safeguards.[8]
[8] Bennett and Bennett (1991) FLC 92-191 at 78,267.
In the article by the Hon. John Fogarty, to which I have referred, his Honour wrote;
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …(emphasis added).
In interim proceedings 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 necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties…
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[9] the majority of the Full Court (Boland and Thackray JJ) said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not 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].
It is to be observed that the reference by the Full Court in SS v AH,[10] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[11] as long as there is a proper basis for those “possibilities”.
Is there an unacceptable risk in the children spending time with the mother in the absence of another responsible adult?
[10] Ibid.
[11] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
The mother acknowledges that she has struggled with alcohol misuse since 2014. As outlined above, this addiction has resulted in her being admitted to rehabilitation centres on four separate occasions for a total of approximately 12 weeks.
The mother contends, however, that those admissions were voluntary and, in themselves, show a commitment on the part of the mother to address her addiction. Moreover, the mother contends that she has been sober for a period in excess of nine months, whereas, at the time the consent orders were made on 17 February 2017, the mother had only been sober for a period of approximately 3.75 months.
The mother also referred to the Limited Issues Report prepared by Ms J, Senior Family Consultant with the Court, dated 15 February 2017. Specifically, reference is made to the views of Ms J that “if [the mother] can maintain her sobriety in the longer term, the future for the family looks positive. She is, however, in the early days of recovery and the focus of the next nine months or so at least, needs to be on stabilising abstinence”.[12]
[12] Report of Ms J dated 15 February 2017 at [26].
Counsel for the mother noted that she has been abstinent from alcohol consumption for a period that now exceeds nine months.
Senior counsel for the father, however, noted that the reference by Ms J to a period of nine months should be read in the context of the date of Ms J’s report being 15 February 2017.
Moreover, the reference to the period of abstinence, it was submitted, by the father, should be seen in the context of Ms J’s opinion that the mother is in the early days of recovery from a “chronic relapsing illness” and that her progress should be reviewed at “three, six and nine months and that Mr [N], who is a drug and alcohol expert… conduct such reviews”. It was noted that, as at the date of the hearing of the mother’s application, those reviews had not occurred.
In her report, Ms J notes that “Ms [Kadejevic] denies that her drinking ever had any impact on her parenting”.[13] I agree with Ms J that this cannot be so. Even at this stage of the proceedings, the evidence is clear that, at those times the mother was intoxicated, she was incapable of properly caring for the children.
[13] Ibid.
Accordingly if, contrary to her best endeavours, the mother was to relapse in respect to her consumption of alcohol then the children would be in a situation where they would be at an unacceptable risk of neglect and possibly psychological and physical harm when they were in the mother’s care.
Having noted that risk, I agree with the observation of Ms J that the mother appears to be committed to continuing with the steps she is taking, including attending appropriate therapy on a weekly basis to maintain her sobriety. It was agreed that the longer the period of time that the mother participates in that therapy and abstains from alcohol consumption, the more likely it is that she will be able to address her history of alcoholism.
While the mother’s efforts are encouraging, at this stage of the proceedings, there is an absence of expert evidence relating to the mother’s condition and the likelihood that she will be able to recover from her addiction.
As noted, having identified that an unacceptable risk exists, the task of the Court then becomes one of assessing whether adequate safeguards can be put in place to address that risk.
Counsel for the mother proposed that the mother attend regular urine analysis and/or CDT testing in respect to the possible presence of alcohol in the mother’s system. This, it was submitted, would reassure the Court and the father that the mother is, indeed, abstaining from consuming alcohol.
In that respect it was submitted that the Court should infer, from the CDT test results that are attached to the mother’s affidavit sworn 4 July 2017, that the tests can detect the presence of alcohol which is consumed within a month of the test being conducted. On that basis, it was proposed that the mother would attend fortnightly testing providing the costs of the tests were shared between herself and the father.
Senior counsel for the father, on the other hand, argued that there is no evidence before the Court as to the effectiveness of CDT tests in detecting alcohol consumption that occurred 14 days prior to the test being conducted. In any event, it was submitted that, should the mother relapse into consuming alcohol, the parties and the Court would not become aware that the mother had consumed alcohol for a period of at least 14 days and possibly a little longer pending receipt of the report. During that time the children would have been in the mother’s care.
There is substance in the father’s concern in that respect. In those circumstances, it is appropriate that the current arrangements continue. That is, for the children to spend time with the mother in the presence of another responsible adult agreed to by the parties or, in the absence of agreement, the maternal grandmother and/or her partner.
Section 60CC(3) considerations
In determining whether there should be an increase in time that the children spend with the mother it is appropriate to have regard to the considerations set out in section 60CC(3) of the Act.
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The children are young. C is 6 years old and D is 4 years old. In their interview with Ms J, neither of the children wanted to associate images of small bears reflecting emotions such as angry, sad and happy. Ms J noted that, instead, the children wished to focus on more emotionally neutral activities.
Ms J commented that the children’s avoidance of any emotional engagement in talk about their family, as well as their discussion of themes of death and destruction in their play activities, demonstrated that they are anxious. She commented that this is especially so for C who she believes is “more tuned to nuances in his family’s situation”.
Nevertheless, Ms J observed that, upon leaving the child care room, “there was boisterous laughter and physical affection between the children and both parents”.[14]
[14] Report of Ms J dated 15 February 2017 at [22].
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
The mother asserts that she has been the primary carer of the children, advising Ms J that “I’m better with cuddles and kisses. We have conversations. They come to me when they cry. I do all the organising, the parenting. I don’t yell”.[15]
[15] Ibid at [13].
The mother acknowledged, however, that the father has also been involved with the children and that “he’s good at activities”.
Both parents have been successful in their careers and this has involved each parent undertaking some travel as part of their work commitments. During those times the other parent has been the stay-at-home parent caring for the children.
The father has also been responsible for caring for the children during those occasions when the mother has been an inpatient in rehabilitation.
I have noted the parties’ respective contentions in respect to the nature of the children’s relationship with each parent. However, it is not possible to make a determination in respect to those matters at this stage of the proceedings.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
As noted, the children are young and have a limited ability to report concerns in the event of their mother resuming the consumption of alcohol.
As a result, I have formed the view that the safeguard proposed by counsel for the mother that the mother attend regular testing for alcohol consumption is an inadequate safeguard as the parties and the Court would not be informed of the existence of a negative test until that test was received.
For the reasons that I have outlined, placing the children in a situation where they could suffer neglect and potentially physical or psychological harm pending receipt of such a negative test would, in my opinion, place them in a situation of unacceptable risk.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This consideration is not relevant.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
As noted, both parents have taken the opportunity to spend time and to communicate with the children and no issue has been raised that they have failed to take the opportunity to participate in making decisions about major long-term issues relating to the children. This is consistent with the fact that the consent orders, agreed to by the parties on 17 February 2017, provide for the parents to have equal shared parental responsibility.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
No issue has been raised that either parent has failed to fulfil their parental obligation to physically maintain and care for the children.
The father contends, however, that the mother’s ability to maintain the children has been limited at those times that she has been heavily intoxicated. I accept that it is likely that that has been the case.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
In her report, Ms J notes that the parents have previously demonstrated the capacity to work cooperatively together.
The father asserts that, as result of flexibility in his work arrangements and with some support from his extended family, he has been able to fulfil the role as primary carer of the children since the parties separated.
The mother, on the other hand, contends that the father has been unable to cope with the demands of being primary carer for the children and this has resulted in him losing his temper with the children on occasions. This is denied by the father.
The father contends that, as result of the impact of the mother’s history of alcoholism, she lacks the capacity to be emotionally present for the children when they are in her company.
The mother asserts that her drinking became a problem for her when her grandparents died in 2014 at which time she was also having problems at work. The mother also asserts that the conflictual nature of her relationship with the father aggravated the problem. The mother acknowledges that she needs to deal with the problem of alcoholism and, as noted, is attending regular therapy sessions to address that condition.
In these interim proceedings I am unable to resolve the questions raised by each of the parties in respect to the other parent’s parenting capacity, save in so far as I have found that the mother lacks the capacity to properly care for the children on those occasions when she is intoxicated.
As noted by Ms J “it is hoped that the goal of being able to resume full parenting role with the children will be the incentive [the mother] needs to remain resolute on her journey”[16] of recovery from her past history of alcoholism.
[16] Ibid at [27].
Attitude and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.
It is quite clear that each of the parents love and deeply cares for their children.
Beyond that it is not possible, in these interim proceedings, to make a determination in respect to the issue of parental responsibility. Clearly, a parent engaging in excessive consumption of alcohol in the presence of children raises a concern.
Ms J also expressed concern that the mother “has not taken full responsibility yet for the myriad ways in which alcoholism of a parent can impact upon children”.[17]
[17] Ibid at [26].
The mother has, however, taken steps to address her alcohol addiction including voluntary admission to treatment facilities and ongoing attendance in therapy programs on a weekly basis.
As noted by Ms J, if the mother can stay on course with her treatment and maintain her sobriety in the longer term “the future for the family looks positive”.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
In her affidavits the mother has made allegations against the father that, if accepted by the Court, could constitute family violence as defined in section 4AB of the Act.
Indeed, the mother alleges that being the subject of controlling and invasive conduct, on the part of the father, has contributed to her history of alcoholism. The mother asserts that, in the absence of being exposed to that conduct, she has now been able to address her alcohol problem.
In these interim proceedings I am unable to make a determination in respect to the mother’s allegations.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
This is not a relevant consideration.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
In her report, Ms J notes that, until the parents separated, the children were living in a “very stressful environment” and that their parents’ separation would provide some relief from that stress.
On the other hand, with the mother moving out from the family home on 17 February 2017, the children have had to adjust to the fact that their mother has not, in the subsequent period, been part of their daily life.
The fact that the children have spent a limited amount of time with their mother since 17 February 2017 represents a significant change for them.
I agree with the recommendation of Ms J that, consistent with the mother’s recovery from her alcohol problem, the children should spend as much time as possible and on a regular basis with their mother. This will minimise the impact of the change upon the children.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The practical difficulty in implementing the orders made on 17 February 2017 is that it is only the maternal grandmother, as a responsible adult, who is available to be present when the children spend time with the mother. Unfortunately, the maternal grandmother is not available midweek.
As I propose to make orders for a responsible adult to be present when the children spend time with the mother, that time is necessarily limited to the availability of the maternal grandmother.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings that involve issues of some complexity that will inevitably be emotionally trying for the parties and the children. It may well be that it is necessary for the matter to proceed to hearing.
It is appropriate, however, for the parties and their legal advisors to reflect upon the caution of Ms J that a pathway through the legal system “will inevitably exacerbate conflict, take a lot of time and defer resolution, cause tremendous stress to the parents and children, drain financial reserves and place decision-making about the children in the hands of a third party. There is abundant evidence to demonstrate that the latter option is detrimental to the children’s well-being”.[18]
[18] Ibid at [25].
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
As Ms J notes, “paradoxically and sadly” orders providing for the father to be the primary carer of the children for the time being while the mother continues her treatment in respect to her alcohol problem “may make [the mother] more vulnerable to relapsing”.
It is to the mother’s credit that, despite that additional pressure, she has persevered with her treatment and it appears that she has abstained from alcohol consumption since she committed to a complete abstinence from alcohol on 27 October 2016.
It is to be noted that Ms J recommended that, in the event of the mother maintaining her sobriety that, ultimately, “it would be in the best interests of [C] and [D] for consideration to be given to Mr and Ms [Kadejevic] sharing the care of the children as they have done so creditably for many years”.[19]
[19] Ibid at [30].
Evaluation of section 60 CC considerations.
As noted, on 17 February 2017, an order was made for the parents to have equal shared parental responsibility. I do not propose to vary that order.
In those circumstances the pathway set out in s 65DAA applies and the Court is obliged to consider the children spending equal time or substantial and significant time with both parents.
Section 65DAA(5) provides;
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
In terms of 65DAA(5)(e), I am of the view that there is unacceptable risk associated with the children spending time with the mother, at this relatively early stage of her recovery, without another responsible adult being present. That unacceptable risk makes it impracticable for the Court to make an order for the children to spend equal or substantial and significant time with the mother.
In terms of considering section 60CC(2)(a), in her report, Ms J noted that the children are young and “they need both parents in their lives in a real and meaningful way as far as that is possible”.
Ms J records the father as having advised her that “I’m hopeful that she’ll stop drinking” and “I want her [the mother] to be part of their life. This is only interim”.[20]
[20] Ibid at [10].
At the hearing on 31 July 2017, there was an indication that the parties may have may have hardened their respective positions since their interviews with Ms J in February of this year. In that respect Ms J noted that, at the time she interviewed the parents in February, “Mr and Mrs [Kadejevic] were restrained in their criticisms of each other. Certainly they expressed frustration and concerns but they did not dwell on these and were able to acknowledge positive attributes of each other as people and parents”.[21] Ms J observed this to be to each parent’s credit.
[21] Ibid at [25].
At the hearing on 31 July 2017 counsel for each of the parties raised issues regarding the others parenting capacity. Those issues which were raised have been noted above.
The respective criticisms made by each parent against the other appear to be more reflective of the adversarial nature of the litigation between the parties rather than either parent disputing that the children have a right to have a meaningful relationship with both of their parents.
Until 17 February 2017 the children had both of their parents in their daily lives. The fact that they are now spending only limited time with the mother represents a significant change for them.
The mother is to be given credit for taking steps to address her past history of alcoholism. It is appropriate for the amount of time that the children spend with the mother be increased consistent with her recovery. Pending the receipt of expert evidence that the mother’s recovery is at a point where she is not at risk of engaging in excessive consumption of alcohol, another responsible adult should be present when the children are spending time with her.
Unfortunately, as result of personal circumstances, the maternal grandmother is only available to spend time with the mother and the children on Friday night, Saturday, Saturday night and Sunday.
The children’s time with the mother should be increased consistent with the availability of the maternal grandmother to also be in attendance.
However, at the same time, it is important that the children also have some weekend time with their father.
Accordingly, I propose to vary the orders made on by deleting existing order 3 made on 17 February 2017 and replacing it with the following:
3.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 with the children shall be in the presence of at least 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 will also be varied to delete the words “the mother undertakes to collect the children from the former matrimonial home” and replace those words with “the mother shall collect the children from school during school term and the matrimonial home on non-school days”.
I certify that the preceding one hundred and thirty-two paragraphs (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 25 August 2017.
Associate:
Date: 25 August 2017
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Consent
-
Natural Justice
-
Procedural Fairness
-
Reliance
-
Remedies
0
10
1