Kadera & Lachner

[2021] FedCFamC2F 467

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kadera & Lachner [2021] FedCFamC2F 467

File number:	MLC 3891 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	12 November 2021
Catchwords:	FAMILY LAW – Interim parenting orders – parents attended a section 11F report – accuracy of the report questioned – child to live with the mother – child to spend substantial and significant time with the father – allegations of family violence – accuracy of text messages not in dispute – allegations of substance abuse and addiction – both parents to undergo hair follicle test – both parents to attend upon a psychiatrist.
Legislation:	Family Law Act 1975 (Cth), ss 11F, 60CC, 69ZL
Cases cited:	Cowling v Cowling (1998) FLC ¶92-801 Goode & Goode (2006) FLC ¶93-286
Division:	Division 2 Family Law
Number of paragraphs:	23
Date of hearing:	12 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr D Mort
Solicitor for the Applicant:	Beswick Foulkes Family Law
Counsel for the Respondent:	Ms A Goldthorp
Solicitor for the Respondent:	Kenna Teasdale Lawyers

ORDERS

MLC 3891 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KADERA

Applicant

AND:

MS LACHNER

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	12 NOVEMBER 2021

THE COURT ORDERS BY CONSENT THAT:

1.The child, X (the child), born in 2018, live with the Mother.

THE COURT ORDERS THAT:

2.The child spend time with the Father at the Maternal Grandparent’s home at B Street, Suburb C:

(a)In week 1 from 3.30pm on Wednesday until 10:00am Thursday commencing 17 November 2021 and each alternate Wednesday thereafter at those times.

(b)In week 2, from 3.30pm Friday until 5:00pm Sunday commencing 19 November 2021 and each alternate weekend thereafter at those times.

(c)otherwise as agreed in writing between the parties.

THE COURT ORDERS BY CONSENT THAT:

3.For the purposes of changeover, the Father shall collect the child from the Mother from D Street, Suburb E when the child’s time with him is to commence, and the Mother shall collect the child from the Father at F Reserve in Suburb E at the conclusion of the child’s time with the Father.

THE COURT ORDERS THAT:

4.For the purposes of paragraph 3 hereof, the Mother’s partner, Mr G be restrained from attending at changeovers.

THE COURT ORDERS BY CONSENT THAT:

5.The Father be required to ensure the child attends H Street, Occasional Care, J Child Care Centre on days she is scheduled to attend.

THE COURT ORDERS THAT:

6.The parties each attend upon Dr K, psychiatrist, for a psychiatric assessment and report, with the Father to bear his and the Mother’s costs at first instance, and the report to be released as soon as practicable upon completion and it is requested that Dr K include his opinion:

(a)whether either parent is a risk to the child; and

(b)Whether either parent is a risk to the other; and

(c)Dr K is requested to consider the text messages contained in M2 dated 11 November 2021 and those annexed to the Mother’s affidavit filed 16 June 2021 at AM‑3, AM-4, AM-5, and AM-6.

THE COURT ORDERS BY CONSENT THAT:

7.No later than 4 pm on Monday 15 November, 2021 each party make an appointment for a supervised hair follicle test (:the first test), and thereafter a further test another 3 months from the first test, as follows:

(a)The first test be conducted no later than 7 days from the date of these orders.

(b)Each party will direct the testing laboratory to send the test results directly to their lawyers and the other party’s lawyers.

(c)Each party bear the cost of their own test.

(d)Each party provide a copy of these orders to the elected testing facility.

8.Until further order:

(a)Each party is required to maintain his/her head hair at a length of not less than four (4) centimetres.

(b)Neither head hair nor body hair is to be bleached or dyed

9.There be liberty to apply in the event either party provides a hair follicle test result which is positive for illicit substances.

10.Within 7 days the father enrol in and provide the mother with proof of enrolment:

(a)The Anglicare Men’s Behaviour Change Program.

(b)Tuning in to Kids.

11.Within 7 days the father obtain a referral for drug and alcohol treatment through L Centre and provide the mother with evidence that he has been referred for ongoing treatment.

12.Within 7 days the parties enrol in the Parenting Orders Program with M Centre or such other approved organization.

13.The matter be adjourned to 17 May 2022 at 9:30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.

THE COURT ORDERS THAT:

14.Christmas arrangements to be that the child will spend time with the Father from 12:00pm Christmas Eve with changeover to occur at 11:00am on Christmas day.

AND THE COURT NOTES THAT:

A.The Court assumes the Christmas arrangements will be reversed the following year and alternate thereafter until further order.

B.There be no special time arrangements for the child’s birthday.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Kadera & Lachner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are settled and short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). The matter comes before me on a busy interim week on a day where it is one of nine matters. Today is a return of the matter after the release of a section 11F report which addressed the issues in dispute including the spend time and live with arrangements for the child, X (“the child”), who will soon be 3 years old with her parents, Mr Kadera (“the Father”), and Ms Lachner (“the Mother”), in the circumstances of alleged family violence and alleged substance abuse and addiction. The following is as delivered ex tempore with some reordering of paragraphs and grammar and repetition corrected.

2. I take into account all of the material that the parties have relied upon. I take into account what I will call the section 11F report, and I do acknowledge Mr Mort's point about confirmation bias, and the absence of reference to the drug issues of both parties. The Father says that he does not even have a sister, (that is referred to in paragraph 23), and I do acknowledge those matters. Nonetheless, I do not dismiss the observations by the Court Child Expert entirely. The issue is the weight to be given to them.

3. I have to apply Division VII of the Act, so I am going to apply the test of what is in the best interests of the child and the primary considerations, and noting that the protective primary consideration is to be given greater weight than the benefit of a relationship between the Father and the child. As of today, it is common ground between the parties that the child would benefit from a relationship with both of her parents. At the time of the interview with the Court Child Expert, the Father had some circumspection about that, but as of today, it was common ground that there was a benefit to the child having a meaningful relationship with both parents. I must take into account section 60CC(2A), and apply greater weight to the protective, or the need to protect the child, for that primary consideration, and I also take into account all of the additional considerations.

4. The thrust of Mr Mort's case on behalf of the Father is that there is a quite long history of the Father being substantially involved in the child's life pre-separation and post-separation, (separation occurred in December 2020).  Post-separation, the Father has been involved in the child's life for every week over three nights: Friday night, Saturday night and Sunday night, and it is a matter of whether your glass is half full or half empty whether that is over three nights and four days, or whether that is only over two full days.  But that involvement is substantial, and Mr Mort invites me to draw the inference that, as a result of that history, the child will be significantly attached to both parents, and contrast that to the observation of the child report writer, which is really an opinion or an inference that the report writer draws, where the Mother is described as the primary parent.

5. I take into account the fact that, on 17 June 2021, when represented, the Mother consented to the then existing arrangement continuing.  I take into account that that arrangement was in place for some time.  I cannot determine disputed facts, and I am endeavouring to follow paragraph 82 of the decision of Goode & Goode (2006) FLC ¶93-286.

6. The thrust of Mr Mort's case is that I will have significant further information and be able to review this case with greater clarity with the assistance of a report from Dr K, and alternatively, Dr N (though that is opposed by the Father) as well as the very profound information from the hair follicle test. 

7. It is now common ground that both parties should undertake a hair follicle test.  The Father points to the stability of the current arrangement and the length of it, and how I should be very cautious with interfering with that in a case where I have uncertainty of information.  There is substance in that submission.

8. However, this is an example where the law, as it applied prior to the 2006 amendments, may well have assisted that submission.  What I will call the Cowling principles (Cowling v Cowling (1998) FLC ¶92-801) would well have assisted that submission.

9. However, whilst stability is one matter to take into account, I am now compelled, and must apply Division VII of the Act and all of those matters described therein.

10. I must take into account family violence involving the child or a member of the child's family.  The issue of family violence overshadows this case.  There are many disputed allegations, but the text messages that the Mother describes in her affidavit (she annexes the text messages sent to her in February and March, they are not in dispute).  They demonstrate a determination on the Father's part to communicate to the Mother and to insult and hurt, and wound her.  It is also significant that it is not simply the Mother being described in derogatory terms about her appearance or otherwise.  I am concerned that those text messages also touch on an aspect of sexuality and the Mother's gender, and also refer to the tragic victim of a murder.  The manner in which that is done is truly troubling.

11. The section 11F report writer referred to other aspects about potentially controlling behaviour. Mr Mort has persuaded me that I should not place weight on those. For example, I will not proceed on the basis that the Father has received the child care rebate, or that he enrolled the child in four child care centres.

12. However, the continued nature of those text messages, the timing of them, the nature of them, and then the message last night, when it is common ground that the Mother's father died 20 years ago (which would mean when the Mother was about 17 years old) is concerning.  While the death of a parent is never good, and there is no good time for it (unless you are very old yourself) the Mother would have been a teenager at that time.  I take into account last night's communication and the February/March communication and the Father's statements to the report writer.  As recently as 18 October 2021, his position was that the child should spend alternate weekends with the Mother, and the time with the Mother should be supervised.

13. Combined with his statements about how he regards the Mother as a person in his own text messages, those events convince me that the almost equal time shared care arrangement is unviable at this time.

14. Mr Mort asserts that at the time of the previous orders, the Mother was not intimidated, was represented by counsel, and consented to an arrangement that should continue.  The order was made by consent.  I am not going to deal with whether the order should or should not have been made, but on the information that is available to me now, an arrangement of almost equal shared time is not appropriate, and is not in the child's best interests at this time.

15. The concern that I have is the extent to which, whilst the child is in the care of the Father, those attitudes, that he cannot help communicating to the Mother, are communicated to the child.  There is no evidence that he has done so, but there is an unacceptable risk, given the florid and disinhibited nature of his communications, that that would occur.

16. The Mother's attitude to the Father's time with the child, in substance rescues his case, and she seeks that the Father spend substantial and significant time with the child.  Were it not for that concessional position of the Mother, the Father may have had a more difficult time persuading me that that time was in the child's interests. 

17. It is clear that the Mother attempts to separate her personal feelings about the Father and for the Father from what is in the child's interests, and she acknowledges the extent to which the child enjoys her time with the Father, and what I infer is a close and appropriate relationship.

18. I now go to the detail of the competing orders as sought.  It is in those circumstances recited above, that I will make the order as sought by the Mother in paragraph 1 and paragraph 2 (as set out in red).  I will draw a line through the (green) continuation of existing line as sought by the Father.  Paragraph 3 is by consent. 

19. I should indicate that I am persuaded that it is not in the child's interests for the Father and the Mother’s partner, Mr G, to be in the same place.  Mr G is not on affidavit.  He may or may not be innocent of the allegations that the Father alleges against him. 

20. There has been, and there will be again, a pending intervention order against Mr G brought by the Father.  To the extent that the Mother needs the comfort of Mr G to be present, to deal with the potential of abuse and intimidation by the Father, that is outweighed by the potential for trouble between the two men in the circumstances of the known disinhibition and capacity for abuse of the Father, and the allegation of troublemaking that the Father makes against Mr G.  That is not a finding in regard to Mr G.  I am dealing with unacceptable risks.  So, paragraph number 4: that order will be made as sought by the Father.

21. As to order number 6, the order (in green) will be made as sought by the Father. In the first instance, my order is that the Father will meet the costs of his own report and of the Mother. It may be, upon a more thorough examination of her finances, that she should contribute her half of that report, but at this stage, it is a preliminary finding that the Father should pay her half in advance.

22. Dr K will be requested to include in his report, if he is able, whether either parent is a risk to the welfare of the child, and whether either parent is a risk of harm to the other parent.

23. My ruling is the Mother should have this coming weekend, so the Father's Friday to Sunday should commence on Friday 19 November 2021, and his Wednesday time should commence on 17 November 2021.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Dated:       1 December 2021