Khalifa and Khalifa

[2017] FamCA 726

FAMILY COURT OF AUSTRALIA

KHALIFA & KHALIFA [2017] FamCA 726

FAMILY LAW – PARENTING – INTERIM PROCEEDINGS – Where the father retained the children in his care – Where the mother acknowledges use of illicit substances – Where the father alleges the mother abuses alcohol – Where the mother had a mental health episode two days prior to the husband retaining the children – Where Court unable to determine competing contentions of fact in interim proceedings – Whether Court nonetheless obliged to consider issue of risk – section 60CC considerations – unacceptable risk found – The children to live with the father and spend time with the mother two nights per week – Orders made for the time that the children spend with the mother to occur only where the maternal grandmother or such other person as may be agreed is in the general vicinity of the children and the mother – Where orders made in respect to use of illicit substances and alcohol – Where orders made for drug testing.

Family Law Act 1975 (Cth) ss 60CC

B & B (1993) FLC 92-357

Banks & Banks [2015] FamCAFC 36 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Rice & Asplund (1978) 6 Fam LR 570 SS & AH [2010] FamCAFC 13
APPLICANT:	Ms Khalifa

RESPONDENT: Mr Khalifa

FILE NUMBER: SYC 5834 of 2017

DATE DELIVERED: 11 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 11 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Doolan Wagner Family Lawyers

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The children live with the father.

2. The children spend time with the mother each Monday from 5.00pm to 3.00pm on Tuesday and each Thursday from 5.00pm to 5.00pm on Friday.

3. On a without admissions basis, the time that the children spend with the mother shall occur in the presence of the maternal grandmother or any other responsible adult as agreed upon by the parties.

4. For the purpose of changeover:

   (a)       On days that the children are at Kindy or daycare, the mother shall collect the children from and return the children to their respective Kindy/day care centre at the commencement or conclusion of the children’s time with the mother; and

   (b)       On days that the children are not at Kindy or day care (including Saturdays), the father shall arrange a nanny, with the identity of that nanny to be agreed upon by the parties, to collect the children from the father’s place and return the children to the father’s place at the commencement or conclusion of the children’s time with the mother.

5. The costs of the nanny are to be initially paid for by the father and are reserved to final hearing.

6. Each party is restrained from denigrating the other in the presence or hearing of the children.

7. On a without admissions basis the mother is restrained from consuming alcohol 12 hours prior to and including the period of time the children are in her care.

8. On a without admissions basis each of the parties are restrained from consuming illicit substances.

9. For a period of 3 months from the date of these orders, on a without admissions basis, the mother shall undertake fortnightly CDT testing.

10. On a without admissions basis, for a period of 2 months, each party shall undertake random urine drug testing within 24 hours of being requested to undertake such a test by the other party, provided that such request not be made more frequently than once per fortnight, with such test to include but not be limited to testing for cocaine.

11. The CDT testing and the urine drug testing shall not occur on those days that the children are in the care of the mother and in the event such request is made, the test shall occur the day after the children are returned to the care of the father.

AND THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

2. The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

3. Having considered seeking advice from a Family Consultant as required by s 11E of the Family Law Act 1975 (Cth), pursuant to s 11F the parties are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of this Registry as follows:

   1.1the applicant at 9:00 am on 31 October 2017;

   1.2the respondent at 10:30 am on 31 October 2017.

4. The parties must forthwith attend the Child Dispute Section of this Registry to make appointments to attend an intake event for the Child Responsive Program. The parties must attend all meetings fixed by the Family Consultant and ensure that the children attend all meetings as instructed by the Family Consultant.

5. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer (if any) and the Court.

6. The parties and lawyers on the record attend any Selective Settlement Meeting as may be appointed by the Family Consultant.

7. The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

8. Noted that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.

9. The matter remains listed for directions on 9 October 2017.

10. The parties have liberty to apply on 48 hours’ notice to the Court and the other party.

AND THE COURT NOTES THAT:

A.The Court finds that it is inappropriate in these proceedings for the presumption of shared parental responsibility to apply.

B.At the next Court occasion the Court will receive submissions as to whether it is appropriate for the parties to undergo a period of hair follicle testing.

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 Khalifa & Khalifa 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 5834 of 2017

Ms Khalifa

Applicant

And

Mr Khalifa

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has been brought before the Court urgently in response to an application by the mother for a recovery order and parenting orders, in circumstances where the father has retained the children in his care since 28 August 2017. By way of brief background, the mother was born in 1973 and the father was born in 1971. The parties have been in a de facto relationship since June 2011 and were married in 2013.

2. In early February 2017 the parties separated. Subsequent to that initial separation, proceedings were commenced in this Court. Those proceedings included an application for parenting orders. On 24 March 2016, the parties entered into consent orders (“the consent orders”). Those consent orders provided for the orders to remain in place pending the hearing of the matter, which was identified to be a date to be fixed “in three months” time.

3. The consent orders provided for the children, B, currently aged 22 months, and C, currently aged four years, to live with the mother and spend time with the father. At that time, however, due to his age, the consent orders did not provide for B to spend overnight time with his father.

4. Subsequent to the making of the consent orders, the parties reconciled. It would appear that the reconciliation occurred in late April 2016. The parties again separated on 17 July 2017. In the period subsequent to the most recent separation, on 21 July 2017, the parties agreed to interim parenting arrangements. These are set out in annexure A to the father’s affidavit filed on 11 September 2017 (“the recent arrangements”).

5. The recent arrangements provide for the children to spend three nights with one parent and then two nights with the other parent in one week together with additional time on weekends. The reverse arrangement was to apply in the second week. 

6. The parties make respective allegations against each other regarding alcohol abuse and cocaine use.  The mother denies that she has an alcohol problem but admits to using cocaine on no more than two or three occasions a year. The mother asserts that, when she has used cocaine, she has done so in the presence of the father, who also uses cocaine. The mother asserts that the cocaine has been purchased by the father.

7. The mother argues, pursuant to the principles of Rice & Asplund (1978) 6 Fam LR 570 (“Rice & Asplund”), that the Court should not revisit its previous orders, namely, the consent orders made 24 March 2016.

   However, the mother herself seeks interim orders that are different from the consent orders. The interim orders sought by the mother are set out in paragraph 5 of her Initiating Application filed 6 September 2017. Those proposed orders are for the children to live with the mother and for the children spend time with the father as follows:

   a)each Tuesday from 5.00pm to 3.00pm Wednesday; and

   b)each Friday from 5.00pm to 5.00pm Saturday.

8. The mother also proposed arrangements in respect to changeover, which are set out in paragraph 6 of her Initiating Application filed 6 September 2017.

9. I am satisfied that the principle of Rice & Asplund does not apply in this case because there has been a significant change in circumstances since the consent orders were made that justify the orders being revisited. Those changed circumstances include the fact that the parties reconciled subsequent to the making of the consent orders and subsequently separated. The parties also allege that the other party has engaged in acts of family violence subsequent to the making of the consent orders. In addition, the father alleges that the mother’s parenting capacity has been adversely affected by substance abuse. Finally, it is of relevance that on 21 July 2017, the parties agreed to new parenting arrangements which are different from the consent orders.

10. Counsel for the mother has nonetheless argued that, insofar as the father makes allegations in respect to events that occurred prior to 24 March 2016, those allegations should be regarded with little or no weight, because the consent orders were made despite the concerns of the father. Similarly, the mother contends that little or no weight should be given to the father’s allegations regarding what he contends to be inappropriate conduct on the part of the mother in the period prior to 21 July 2017, being the date that the father agreed to a shared care parenting arrangement for the two children.

11. There is, with respect, substance to the mother’s contentions in that respect and the primary focus of my consideration will be on more recent events. 

12. As these are parenting proceedings, it is necessary for me to determine the matters in accordance with the best interests of the children. As noted, section 60CC of the Family Law Act 1975 (“the Act”) set out matters that the Court is required to consider in determining what is in the best interests of the child. In Banks & Banks [2015] FamCAFC 36 (“Banks & Banks”), the Full Court said at paragraph 48 that:

    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 section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.

13. In this matter, the Court is required to make an urgent determination pending more detailed consideration when evidence becomes available.  In other words, the determination I make today should be regarded as an ‘interim’ determination pending a further interim hearing. 

14. In those circumstances, consistent with Banks & Banks, I propose to focus on what I regard as the two primary issues set out in section 60CC(2) of the Act. The primary considerations require the Court to consider the importance of the children having a meaningful relationship with both parents, on the one hand, as against the issue of the risk of the children being subject to risk of physical or psychological harm or neglect or abuse on the other.

15. As noted, both parties make allegations that the other has engaged in acts of family violence. The parties have made respective allegations against the other in respect to their conduct in that period. The allegations of the mother are set out in her affidavit filed on 6 September 2017 and also in the mother’s witness statement which she provided to police on 28 August 2017.[1] The assertions of the father concerning the mother’s alleged acts of family violence are set out in his affidavit filed on 11 September 2017.

    [1] Annexure B to the mother’s affidavit filed 6 September 2017.

16. The mother alleges that there is a coincidence in the father being served with a provisional Apprehended Domestic Violence Order (“ADVO”) and his conduct in retaining the children. Specifically, the mother alleges that her application for the ADVO was served on the father at 4.00pm on 28 August 2017. The father has retained the children since that time.

17. The father, on the other hand, alleges that his actions in retaining the children occurred in respect to events that occurred on 26 August 2017. Those events are summarised at paragraphs 82 to 87 of his affidavit filed 11 September 2017. The father stated that he intended to apply for appropriate parenting orders in light of his concerns about the mother, but he did not have the opportunity to do so before the mother commenced these proceedings.

18. In her statement dated 28 August 2017, the mother states:

    During the evening of Saturday 26th August, I had a mental health episode.  Police from [Suburb D] intervened and I was taken to [Suburb D] Hospital.  I was assessed and released soon after.  The reason behind this episode stemmed solely from the continuing harassment behaviour of [Mr Khalifa] [the father].  I felt threatened and my privacy violated and at the time I could not see how I would be able to raise our children in a civil manner.  I feel that his behaviour has escalated to the point I feel threatened by numerous comments about watching me, listening to my phone calls and knowing the contents as well as having cameras in our family home when we were together.  I had no knowledge of this.[2]

    [2] Ibid.

19. As previously noted, in these interim proceedings I am unable to make findings of fact including in respect to the allegations made by the mother concerning the father’s conduct. 

20. It is significant, however, that the mother acknowledges having a mental health episode that required the intervention of the Suburb D Police and mental health professionals. No evidence has been presented as to the circumstances in which that intervention occurred. Specifically, no information has been provided as to what gave rise to the police intervention and whether the children were present at the time. The Court is also without information as to the nature of treatment provided to the mother and any relevant prognosis regarding the mother’s mental health and how it may impact on the children.

21. In those circumstances, and in the context where the mother has acknowledged some history of using illicit substances, I do have concerns regarding the mother’s capacity to care for the children, particularly in circumstances where she may have an acute mental health episode. 

22. While I am unable to make findings of fact, I am nonetheless required to address the issue of risk to which I have referred. Guidance as to the appropriate approach that should be taken in those circumstances is set out in the Full Court decision of SS & AH [2010] FamCAFC 13, where the Full Court said at paragraph 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.

23. It is to be observed that the reference by the Full Court in SS & AH [2010] FamCAFC 13 to probabilities does not mean 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,[3] as long as there is a proper basis for those “possibilities”.

    [3] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

24. In this matter, I have noted that the mother has acknowledged some history of using cocaine. The husband has also made allegations that the mother abuses alcohol. This is denied by the mother.

25. However, in the context of the father’s allegation, I do have some concerns that the parenting arrangements proposed by the mother include an order that she be restrained from drinking alcohol when the children are in her presence but only to a point beyond where she would be unlawfully able to drive a motor vehicle.  In the circumstances of this case, I would have thought that the mother would have consented to an order that she not consume alcohol when the children are in her presence, at least until the Court has the ability to consider the matter in greater detail.

26. A further matter of concern is that in the revised minute of order proposed by the mother, as set out in Exhibit W2, the mother has proposed an order that the parties are restrained from consuming illicit substances 24 hours prior to and during the period of time that the children are in their care.

27. Again, in the context of the seriousness of the allegations that have been made regarding the use of illicit substances and the potential impact it may have on the children, appropriate orders should restrain both of the parties from consuming illicit substances in any circumstances.

28. In the circumstances, I have found the existence of an unacceptable risk that the children may be subject to neglect and potentially physical and/or psychological harm in the mother’s care. I am also concerned about the possibility that the mother does have an issue with alcohol abuse, has some history of using illicit substances and has recently had a substantially unexplained acute mental health episode. In those circumstances, it is necessary to consider what steps can be taken to mitigate against that risk. 

29. As stated by the Full Court in B & B (1993) FLC 92-357, that task involves achieving a balance between providing for the children to spend time with each parent but taking steps to mitigate against the risk that I have identified. In the circumstances of this case, I am satisfied that the risk can be mitigated by having a responsible adult present when the children are in the company of the mother. That adult would provide what is sometimes referred to as “loose supervision”, with the responsible adult being in the general vicinity of the children and the mother rather than constantly watching and monitoring them.

1. In that context, the father, with some reservations, has agreed that the maternal grandmother would be an appropriate person to provide that supervision. I am satisfied that such an arrangement is appropriate.

2. As an additional safeguard, I propose to order the mother to undertake a regime of random drug testing for a period of time. The mother has volunteered to undertake that regime for a period of two months. In the circumstances of this case, however, I think, that a period of three months is appropriate.

3. The mother proposed that that the tests be in the nature of CDT tests and urine tests, rather than, at this stage, hair follicle tests. This is because the mother acknowledges that hair follicle tests would possibly return a positive finding regarding cocaine use and would not progress the issues any further.

4. There is some substance in that contention, save insofar that, at some stage, it is appropriate for at least the mother and possibly the father to undergo a hair follicle test in the future. I leave that issue to be determined when the matter is next listed for hearing for consideration of longer term interim parenting arrangements.

5. The next question becomes the amount of time that the children spend with the mother. The mother’s proposed minute, Exhibit W2, proposed that the children spend time with the father from 9.00am each Monday to 9.00am each Wednesday and commencing 9.00am Friday 22 September 2017, each alternative weekend thereafter from 9.00am Friday to 9.00am Monday.

6. In circumstances where these are interim proceedings occurring very early in the proceedings, it is necessary to take a cautious approach. I am concerned that the arrangement for the maternal grandmother to be present is untested and providing for a greater amount of time may impose an unreasonable burden upon the maternal grandmother. In those circumstances, a more appropriate regime is the reverse of the orders proposed by the mother in her Initiating Application, save insofar to meet what I understand to be the convenience of the parties, I propose changing the Wednesday evening to the Monday evening and the Friday evening to the Thursday evening.

7. The parties were in agreement that an Independent Children’s Lawyer should be appointed and that a Child Responsive Program Memorandum should be obtained as soon as is reasonably possible.

8. For all the reasons above, I make orders in accordance with those set out at the commencement of these Reasons for Judgment.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 11 September 2017.

Associate:

Date:  20 September 2017