Kosar & Kosar

[2025] FedCFamC1F 108

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kosar & Kosar [2025] FedCFamC1F 108

File number(s):	BRC 13633 of 2018
Judgment of:	HOWARD J
Date of judgment:	19 February 2025
Catchwords:	FAMILY LAW – PARENTING – part heard trial – competing applications for interim parenting orders
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of last submission/s:	5 February 2025
Date of hearing:	29, 30, 31 January 2025 and 3 February 2025
Place:	Brisbane
Counsel for the Applicant:	Mr Cahill
Solicitor for the Applicant:	Jurgensen Horne Lawyers
Counsel for the Respondent:	Mr Formby
Solicitor for the Respondent:	Peace Family Law
Counsel for the Independent Children's Lawyer:	Mr Christie
Solicitor for the Independent Children's Lawyer:	Berck Solicitors

ORDERS

BRC 13633 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KOSAR

Applicant

AND:

MR KOSAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	19 FEBRUARY 2025

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1.Order 1 of the Orders made on 3 February 2025 be discharged.

2.This matter be adjourned part-heard for further hearing for not more than four (4) days commencing at 10:00am on 7 May 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane before the Honourable Justice Howard.

3.The parties must be prepared to make oral submissions to the Court at the conclusion of the evidence at the final hearing.

4.All previous parenting Orders relating to the child, X, born 2012 (“the child”) are suspended.

5.The Mother have sole decision making for all major long-term issues for the child.

6.The child live with the Mother.

7.The child spend time with the Father at C Family Services Town B each alternate weekend (commencing 1 March 2025) for a period of 2 hours or as the Centre is able to facilitate and:

(a)The parents are to bear their own costs for intake at C Family Services Town B;

(b)The Father is to bear the costs of ongoing supervision at C Family Services Town B; and

(c)Time be suspended in the event that there is a D Organisation event and such time can occur as make up time, as can be facilitated by the Contact Centre.

8.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father is restrained by injunction from the following:

(a)Contacting or attempting to contact the mother by any means, including but not limited to, via social media or through a third party but for time via the contact centre;

(b)Contacting or attempting to contact the child by any means, including but not limited to, via social media or through a third party except for supervised time as set out in these Orders;

(c)Approaching or coming within 100 metres of the Mother or the child except for supervised time as set out in these Orders;

(d)Approaching or coming within 100 metres of any place where the Mother or the child might reside from time to time;

(e)Approaching or coming within 100 metres of any place where the child might attend school or extra-curricular activities;

(f)Approaching or coming within 100 metres of any place where the Mother might work from time to time; and

(g)Approaching or coming within 100 metres of any place where the Mother might attend school or extra-curricular with the child.

9.Order 8 is an Order made for personal protection of the Mother and the child, and is an Order to which the power of arrest without warrant attaches pursuant to section 68C of the Family Law Act 1975 (Cth).

10.The Father is restrained from discussing the child’s ADHD diagnosis with the child.

11.The Mother and Father are restrained from discussing the proceedings with the child or denigrating each other or each other’s family or friends in the presence of the child.

12.The Mother is to restrain Ms E from discussing the proceedings with the child or denigrating the Father to the child or in the presence of the child.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR EX TEMPORE JUDGMENT

HOWARD J

These Reasons for Judgment were delivered orally on 19 February 2025 and have been settled to correct grammatical errors and to ensure that the precise intention of the Court has been conveyed.

1. Before the Court today are Interim Applications by the parties. The Applicant mother is Ms Kosar and the Respondent father is Mr Kosar. The Independent Children’s Lawyer is Ms Berck. The trial is part-heard. More dates have been provided in May 2025.

2. The Court has heard evidence from the mother and one of the mother's witnesses, Ms E. The Court has heard evidence from a previous Family Report writer, Mr F. The father has not yet given evidence, nor has the most recent Family Report writer, Ms G. In addition, there will psychiatric reports produced in respect of both the mother and the father.

3. The parties in this case met in 2009. They commenced cohabitation in late 2010. They separated in or about May 2018. Proceedings were initiated by the mother in November 2018. These parenting proceedings relate to one child, X, born 2012. These reasons for judgment in relation to these Interlocutory Applications are given in the short form, in accordance with section 69ZL of the Family Law Act1975 (Cth).

4. There are already in place, and there have been for some considerable time, orders for the father to spend time with the child unsupervised. Those orders required the father not to take the child to his residence. In breach of those orders, the father has, on his own admission (I understand from his affidavit) taken the child to his residence. The father lives in Brisbane. The mother lives in the Town B area. The child lives with the mother. The current interim orders provide for no overnight time, and the case is complex because, also in breach of the orders, the mother has not been permitting the child to spend time with the father. Neither of these parents are particularly good at complying with Court orders.

5. The father wants unsupervised time by way of an interim order. He has put in a proposal. I will make his proposal exhibit 1. The mother has put in a proposal. That will be exhibit 2. Whereas the father seeks unsupervised time of the child, the mother seeks supervised time for two hours each alternate weekend at C Family Services Town B, with the parents to bear their own costs of intake; the father to bear costs of ongoing supervision; and time to be suspended in the event there is a D Organisation event. Other injunctions are sought. Each party is on notice in relation to what the other parties seek.

6. Exhibit 3 will be what the Independent Children’s Lawyer seeks. The Independent Children’s Lawyer seeks no time on an interim basis.

7. There are a few things to note about this case. It is a case relating to a question of risk. We are only partway through the trial. It is very difficult at this stage (if not impossible) for the Court to properly and comprehensively address the issue of risk, that is to say, what risk might there be to the child in the making of any particular orders, most particularly, I would say, making orders for unsupervised time. Mr F gave evidence and was in the witness box for some considerable time. He had earlier provided two Family Reports, both of which are in evidence. In those reports, his recommendation was unsupervised time. In the witness box, towards the end, he was a little bit more cautious. A reference was made to supervised time, but that was certainly not the main thrust of his evidence.

8. The child had expressed a hope to see the father, but less often than she had been seeing him. I know there has been conflict, but much of the conflict centres around the mother not complying with the orders. I do note the father, as I understand the situation, has never held the child overnight contrary to orders. On occasions he has taken the child back late for changeovers. On more occasions, the mother has been late for changeovers, which has been another source of conflict. I hasten to add that at this point in time, there is no finding by this Court that the father spending unsupervised time with the child would amount to an unacceptable risk to the child. So there has been unsupervised time. It has been going on for some considerable time, although the mother has recently been in breach of the orders. The child has never come to any harm. As far as I know, certainly from a physical perspective, I do not believe there is any evidence the mother has ever been harmed by the father, although I will need to review all the evidence in that regard. The mother raises the issue of coercive control.

9. Important evidence, which has not yet been tested, is the evidence of Ms G, who has provided a report recommending no time. Ms G has raised concerns about the safety of the mother and the child, noting her interpretation of what was said to her by the father in the interview. Ms G may well have based her conclusions and recommendations on other matters and evidence but certainly she did base her conclusions partly on what was said to her in the interview.

10. The Court has to balance, in terms of best interests of the child - the fact that the child has never come to harm, that the child has never been held overnight by the father; the child says she wants to see the father; but less often; and Mr F's two reports, which do not raise any particular concern for the Court so far as the father's time with the child is concerned. I have to weigh all that up with the more recent report from Ms G which is currently untested, that states in her opinion that the child would be at risk.

11. It is a very difficult situation. At this point in time, I do not consider it appropriate that there be an order for no time. No finding has been made by the Court against the father in respect of the risk factors raised. The evidence of Ms G is untested. The preponderance of the other expert evidence points to unsupervised time. I am inclined to exercise my discretion and take a more conservative approach at this stage and go with the order proposed by the mother, which is for supervised time at the contact centre, pending the conclusion of the trial.

12. I know Mr Kosar (the father) will be disappointed with this interim decision but he must hear me when I say that the trial is only part over. He has not had a chance to get into the witness box yet. Ms G has not been cross-examined. I have not yet seen any psychiatric evidence. I do note there is a history of a medical issue so far as the father is concerned. I do not really know what that means so far as this child is concerned but to date it has not meant anything in particular. I note that the child wants to see dad a little bit less. I know Mr Kosar will be disappointed, but he must be patient because this is a process. It is a long process. It is an important process. The Court cannot jump ahead. I do have before me this report from Ms G and I must, it seems to me, in the best interests of the child at this point in time and in the absence of psychiatric evidence, take a cautious approach and the orders proposed by the mother, which I have marked as exhibit 2 are in the child’s best interests at this stage.

13. I am not inclined to discharge all previous orders.

14. I do not want the father going to the mother's house. I know he went there out of frustration last time, and I can fully understand his frustration but it is better if he does not go there.

15. I think the injunctions have to be made in paragraph 4, and so on, of exhibit 2. I am far from convinced that the mother needs these injunctions but the evidence is such at the moment that there is a possibility that I could make a finding that she needs those injunctions and on that basis I think it is preferable to err on the side of caution. That means I am far from convinced that the father needs to be restrained in this way. Once again I need to hear the totality of the evidence, form my own impressions, make findings. Only at that stage can I determine whether the injunctions on a final basis will become necessary.

16. I am requiring the mother to restrain Ms E. If that means the mother does not have Ms E in the house for the next six months, I really do not care.

17. The mother will be granted sole parental responsibility on an interim basis. That is the only way this can proceed at the moment. As to whether at the end of the trial the mother be granted sole parental responsibility, it remains to be seen. My recollection of the evidence thus far is that there is no evidence that would support a change of residence but obviously because the trial is not concluded, I keep an open mind in that regard, noting I have not seen the psychiatric evidence and I have not heard the evidence of Ms G under cross-examination. In addition, I have not heard from the father in evidence. The diagnosis of ADHD has been an unnecessary source of conflict.

18. As I said earlier, the father will be disappointed there is no unsupervised time yet, but it all remains to be seen with the balance of the trial coming up. It seems to me that the orders proposed adequately deal with any risk issues that it could be said are present. The orders to be made are in the child’s best interests.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Ex Tempore Judgment of the Honourable Justice Howard.

Associate:

Dated:       11 March 2025