Kozina & Kozina
[2023] FedCFamC2F 1310
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kozina & Kozina [2023] FedCFamC2F 1310
File number(s): WOC 276 of 2010 Judgment of: JUDGE GLASS Date of judgment: 17 October 2023 Catchwords: FAMILY LAW – PARENTING – 16 year old child with autism spectrum disorder and intellectual development disorder – child has been living with paternal grandparents since the age of 3 – whether he should now commence living primarily with his mother – where mother has suffered from substance use and other mental health disorders Legislation: Family Law Act (Cth) ss 60B, 60CA, 60CC, 60CC2A, 61DA, 65DAC, 117 Cases cited: Adamson & Adamson (2014) FLC 93-622
Carlson & Fluvium [2012] FamCA 32
Fox v Percy (2003) 214 CLR 118
Division: Division 2 Family Law Number of paragraphs: 150 Date of last submission/s: 9 October 2023 Date of hearing: 11-15 September 2023 Place: Sydney Counsel for the Applicant: Ms Wilson Solicitor for the Applicant: Thornton + King Lawyers Counsel for the First Respondent: Ms Mattar Solicitor for the First Respondent: Inner West Solicitors Pty Ltd Counsel for the Second and Third Respondents: Mr Guterres Solicitor for the Second and Third Respondents: Nikolovski Lawyers Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Steiner Legal ORDERS
WOC 276 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KOZINA
Applicant
AND: MR KOZINA
First Respondent
MR B KOZINA
Second Respondent
MS C KOZINA
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Paternal Grandparents have sole parental responsibility for X born in 2006.
2.In the exercise of their parental responsibility, the Paternal Grandparents are to:
(a)Keep the Mother and Father informed in writing of all decisions made by them in relation to major long term issues, including decisions in relation to X’s education, health, medical treatment, overseas travel and living arrangements, and
(b)Provide the Mother and Father in writing with the names and contact details of all:
(i)Schools or education facilities at which X is enrolled;
(ii)Medical practitioners or therapists assessing or providing treatment to X;
(iii)Support services providing assistance to X; and
(iv)X’s NDIS Co-Ordinator and his current Co-Ordinator is Mr D at E Centre, City F.
3.The Mother and Father are each permitted to communicate with; arrange and attend meetings with, and obtain information concerning X from:
(a)Any school or education facility at which X is enrolled;
(b)Any medical practitioner or therapist assessing or providing treatment to X;
(c)Any support service providing assistance to X; and
(d)X’s NDIS Co-Ordinator.
4.Within 7 days of the date of these Orders, the Paternal Grandparents are to:
(a)Provide a copy of the psychological assessment report of Ms G dated 8 September 2023 to X’s school and General Practitioner (“GP”);
(b)Obtain a referral from X’s GP to a clinical psychologist with expertise in autism for the purposes of obtaining advice from time to time as to strategies to assist X in moving between the parties’ households;
(c)Make an appointment for X to attend upon the clinical psychologist referred to in Order 4(b); and
(d)Contact a disability support service to arrange a support worker for X as recommended in Ms G’s report.
5.The Paternal Grandparents inform the Mother, Father and Independent Children’s Lawyer in writing once Orders 4(a)–(d) have been complied with.
6.The Paternal Grandparents are to ensure that X attends upon his speech therapist, occupational therapist, and clinical psychologist in accordance with their recommendations.
7.Prior to X completing high school, the Paternal Grandparents shall enrol him in the H Service for assistance in relation to the transition to employment.
8.X spend time with the Mother as follows:
(a)For a period of 3 months from the date of these Orders in a two week cycle:
(i)Week 1: On Thursday from after school (or 3.00 pm if X is not attending school) until 7.00 pm, and
(ii)Week 2: On Friday from after school (or 3.00 pm if X is not attending school) until 7.00 pm;
(b)Thereafter in a two week cycle:
(i)Week 1: On Thursday from after school (or 3 pm if X is not attending school) until 7.00 pm, and
(ii)Week 2: On Friday from after school (or 3.00 pm if X is not attending school) until 7.00 pm on Saturday, subject to the Mother’s compliance with Order 11 below, noting that in the event the Mother does not comply with Order 11, then time will continue in accordance with Order 8(a) until the Mother complies with Order 11;
(c)Notwithstanding any other Order, X is to spend time with the Mother on special occasions as follows:
(i)For Mother’s Day each year:
A.During the first 3 months of the date these Orders, from 10.00am until 5.00 pm on Mother’s Day, and
B.Thereafter, from after school on Friday (or 3.00 pm if X is not attending school) until 5.00 pm on Sunday on the Mother’s Day weekend, subject to the Mother’s compliance with Order 11 below;
(ii)At Christmas time each year:
A.On Christmas Day in each odd numbered year from 10.00 am until 3.00 pm, and
B.On Christmas Eve in each even numbered year from 10.00 am until 3.00 pm.
9.X spend time with the Father as follows:
(a)For a period of 3 months from the date of these Orders in a two week cycle:
(i)Week 1: On Friday from after school (or 3.00 pm if X is not attending school) until 7.00 pm, and
(ii)Week 2: On Thursday from after school (or 3.00 pm if X is not attending school) until 7.00 pm;
(b)Thereafter in a two week cycle:
(i)Week 1: On Friday from after school (or 3.00 pm if X is not attending school) until 7.00 pm on Saturday, and
(ii)Week 2: On Thursday from after school (or 3.00 pm if X is not attending school) until 7.00 pm;
(c)Notwithstanding any other Order, X is to spend time with the Father on special occasions as follows:
(i)For Father’s Day each year:
A.During the first 3 months of the date these Orders, from 10.00am until 5.00 pm on Father’s Day, and
B.Thereafter, from after school on Friday (or 3.00 pm if X is not attending school) until 5.00 pm on Sunday on the Father’s Day weekend.
(ii)At Christmas time each year:
A.On Christmas Day in each even numbered year from 10.00 am until 3.00 pm;
B.On Boxing Day in each odd numbered year from 10.00 am until 3.00 pm.
10.X is to spend any other time or have any other communication with the Mother and Father as may be agreed between the Paternal Grandparents and the Mother or Father.
11.The commencement of overnight time in accordance with Orders 8(b)(ii) or 8(c)(i)(B) (whichever is earlier) is conditional upon the Mother providing to the Paternal Grandparents results of a hair follicle drug test undertaken by her no more than 14 days prior to the first scheduled occasion of overnight time indicating no excessive reading for any substance, and no positive reading for an illicit substance, for a period of at least 3 months prior to the date of the test.
12.For the purposes of Order 11, the Mother is to undertake the hair follicle drug test through the Australian Workplace Drug Testing Services (AWDTS).
13.At least 7 days prior to the commencement of overnight time, the Paternal Grandparents are to provide the Mother and Father with written details of X’s evening and morning routines, and the Mother and Father are to ensure that they implement these routines when X spends overnight time with them.
14.For the purposes of each period of overnight time with the Mother and Father, the Paternal Grandparents are to provide the Mother and Father at changeover with any personal items which may assist X to manage the transition.
15.In the event X requires any medication during periods of time he is scheduled to spend with the Mother or Father, the Paternal Grandparents will ensure that they provide such medication to the parent he is scheduled to spend time with, together with written instructions as to the date, time and details of dosage required.
16.For the purposes of changeover:
(a)If X is attending school on the day he is scheduled to spend time with either the Mother or Father in accordance with these Orders, then the parent who is scheduled to spend time with X, will collect him from school that day, and return him to the Paternal Grandparents at Suburb J McDonalds at the conclusion of the time; and
(b)If X is not attending school on the day he is scheduled to spend time with the Mother or Father, then changeovers at the commencement and conclusion of time are to take place at Suburb J McDonalds.
17.During the first 3 weeks after the date of these Orders, the Father is to either attend together with the Mother to collect X, or collect X on the Mother’s behalf, at the commencement of time.
18.During any periods of time X spends with the Mother or Father in accordance with these Orders, the Mother and Father are permitted to arrange for X to attend on any of his treating medical practitioners or therapists (such as speech therapist or occupational therapist), for the purposes of assisting X in relation to his development.
19.If either the Mother or Father arrange for X to attend upon a medical practitioner or therapist in accordance with Order 18, then the parent who arranged the appointment will bear the cost of that appointment.
20.During any periods of time X spends with the Mother or Father in accordance with these Orders, the Mother and Father are permitted to arrange for X to participate in any organised sporting or social activity, provided the parent who makes such arrangement bears the cost of the activity.
21.The Mother, Father and Paternal Grandparents each have leave to provide a sealed copy of these Orders and a copy of the psychological assessment report of Ms G dated 8 September 2023 to:
(a)Any school or education facility at which X is enrolled;
(b)Any medical practitioner or therapist assessing or providing treatment to X;
(c)Any support service providing assistance to X, and
(d)X’s NDIS Co-Ordinator.
22.That within 3 months of the date of these Orders, the Mother and Father are each to enrol in and complete a course in relation to parenting children with autism.
23.That within 3 months of the date of these Orders, the Father is to enrol in and complete an anger management course.
24.The Mother, Father and Paternal Grandparents are to use their best endeavours to communicate respectfully with each other at all times.
25.Each party be and hereby is restrained from making critical or derogatory remarks about any other party within the presence or hearing of X.
26.The Mother be and hereby is restrained by injunction from consuming any alcohol or illicit substances, or prescription medication other than in accordance with the prescribed dosage, during and for 12 hours before any period of time she spends with X.
27.The Paternal Grandparents be and hereby are restrained from allowing X to engage in any further appointments with psychologist, Ms K.
28.Each party be and hereby is restrained from:
(a)Discussing these Court proceedings with X or in his presence or hearing;
(b)Asking X about his wishes in relation to his time with each parent;
(c)Telling X that he does not need to spend time with his Mother or Father if he does not wish to; and
(d)Allowing X to refer to his Mother and Father by their first names.
29.In the event any party makes an application for a guardianship order in relation to X in the future, that party is to ensure that all other parties in these proceedings (other than the Independent Children’s Lawyer) are notified of that application so that they may participate in those proceedings if they wish.
30.All previous interim Orders be discharged, including the Orders made on 8 February 2021 restraining the parents from removing X from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of X born in 2006 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
31.The Paternal Grandparents be entitled to travel overseas with X during any period of time that X is in their care, and to be permitted to travel overseas they must:
(a)Provide to the Mother and Father at least 2 months' notice in writing of the overseas travel plans;
(b)Provide to the Mother and Father a copy of the travel itinerary, return prepaid air travel tickets and contact details for X whilst overseas as soon as reasonably practicable, and no later than 14 days before the intended departure date; and
(c)Not propose to take X to a country listed on the Australian Government Smart Traveller website as posing a travel or safety risk.
32.Not less than 28 days prior to the Paternal Grandparent’s proposed date of departure with X from the Commonwealth of Australia, the Paternal Grandparents shall deposit the sum of $20,000 Australian Dollars as a bond ("the bond"), to the trust account of the Mother's legal representation.
33.The bond paid in accordance with paragraph 32 herein, be held by the Mother's legal representation until the Court receives written confirmation from the Paternal Grandparents that the child has returned to the Commonwealth of Australia, together with a copy of X’s boarding pass (or electronic copy equivalent) and thereafter 7 days, by this Order, release the bond to the Paternal Grandparents.
34.If the Paternal Grandparents do not return X to the Commonwealth of Australia within 7 days of the scheduled return date, then the Mother shall on 7 days’ notice, apply to the Court for a release of the bond to the Mother, except in the case where the Court is informed in writing, supported by written documentation (including electronic documentation), that the delay of the return to the Commonwealth of Australia is due to a matter outside of their control, including but not limited to a natural disaster or a cancelled or delayed flight/s.
THE COURT ORDERS BY CONSENT THAT:
35.The Mother and Father have equal shared parental responsibility for the child Y born in 2008.
36.Y live with the Father.
37.Y spend time with the Mother as follows:
(a)Each alternate week from after school Thursday (or 3.00 pm if not a school day) until 6.00 pm on the following Sunday;
(b)For one half of the school holidays; and
(c)At any other time as agreed between the Mother and the Father.
38.Y spend time with the Paternal Grandparents as agreed between the parties and in accordance with Y’s wishes.
THE COURT FURTHER ORDERS THAT:
39.The Mother and Father each pay to Legal Aid New South Wales, one third of the costs of the Independent Children’s Lawyer in these proceedings in the sum of $6,532 each.
40.The appointment of the Independent Children’s Lawyer is discharged.
41.All extant applications be dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2006, and Y, born in 2008. The children are aged 16 and 14 years old respectively.
The children’s parents separated in 2009. X has lived with his paternal grandparents since that time. X lives with Autism Spectrum Disorder, requiring very substantial support (Level 3), and Intellectual Developmental Disorder.
The children’s parents now propose that he live with his mother, Ms Kozina, spend three nights per fortnight with his father, Mr Kozina, and one night per fortnight with his paternal grandparents, Ms C Kozina and Mr B Kozina. The parents also propose to have equal shared parental responsibility for X.
Both X’s paternal grandparents and the Independent Children’s Lawyer propose that he continue to live with his paternal grandparents and that they have parental responsibility for him. The paternal grandparents propose X spend time with his parents as agreed between the parties. The Independent Children’s Lawyer proposes that X spend time with parents for an afternoon or overnight each week.
Y currently lives with Mr Kozina. At the commencement of the trial, Orders were pronounced by consent providing for her parents to have equal shared parental responsibility for her, for her to continue to live with Mr Kozina, and spend time with Ms Kozina for three nights each alternate weekend and for half the school holidays. The consent Orders also provide for Y to spend such other time with Ms Kozina as may be agreed between the Mother and Father, and to spend time with the paternal grandparents as agreed between the parties and in accordance with Y’s wishes. No further relief was sought by any of the parties in relation to Y.
The parties relied on the documents identified in their Outlines of Case, together with some earlier documents filed by the parties and identified during the course of the hearing, and the documents tendered by them into evidence. The Independent Children’s Lawyer’s proposal is articulated in a Minute tendered as Exhibit ICL5 (as subsequently amended without objection by email dated 18 September 2023).
Several parties submit that the Court ought to make findings of credit. I decline to do so in circumstances where the disposition of the case can be legitimately achieved otherwise. In parenting proceedings, adverse credit findings “carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.”[1]
[1] Carlson & Fluvium [2012] FamCA 32 at [165] to [169], adopted in Adamson & Adamson (2014) FLC 93-622 at [89] to [90].
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[2] X’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of his parents
X is currently living with his paternal grandparents. Pursuant to interim Orders made in December 2022, he is to spend time with Ms Kozina each alternate Sunday for three hours and each alternate Friday from after school until 5:00pm. Ms Kozina gave oral evidence that the Sunday visits have never occurred pursuant to those Orders. She gave evidence that the Friday visits have occurred, although not on days that X has been absent from school due to illness or for other reason. She gave evidence that she has not seen X for approximately three and a half months.
X has not spent time with Mr Kozina, on his evidence, since 2020. Until the month prior to trial, he had not participated in the proceedings, and there are no extant orders providing for X to spend time with him. Previous consent Orders made in September 2016, provide for X’s time with Ms Kozina, but make no provision for X to spend time with Mr Kozina.
In issue is the extent to which the paternal grandparents are capable of facilitating X’s relationship with his parents. Consultant Ms N, family report writer, opined in October 2022 “there ought to be no question, at this stage, of any significant changes in [X]’s parenting arrangements, unless the Court assesses that the paternal grandparents will be likely to undermine orders for [X] to spend time with each of his parents.”[4] That opinion raises for consideration the extent to which X’s time with his parents has been undermined by the paternal grandparents.
[4] Family Report of Ms N dated 20 October 2022 (“Family Report”), paragraph 104.
In relation to X’s time with his father, the evidence does not support a conclusion that any such time has been undermined by the paternal grandparents. Mr Kozina has not sought Orders for X to spend time with him since the cessation of that time in 2020, despite being aware of the proceedings since December of that year when he was served with Ms Kozina’s application. His affidavit sets out no steps he took in an attempt to see his son since that time. He gave oral evidence that he had done nothing to seek to re-establish his relationship with X after 2020.
In the absence of Mr Kozina taking steps to re-establish his relationship with X, I am not satisfied their relationship has been undermined by the paternal grandparents. That finding is inconsistent with an assumption made by Consultant Ms N in her oral evidence that it is the paternal grandparents who refused to allow X to have a relationship with his father and sister.
With respect to X’s relationship with Ms Kozina, the situation is more complex. Orders have been in place to facilitate that relationship since December 2022 which have not been completely complied with. In relation to the time scheduled to occur for three hours each alternate Sunday, Mr B Kozina deposes as follows:
[X] continued to show reluctance to spending time with [Ms Kozina] which increased to the point that we cannot get him to spend time on a Sunday with [Ms Kozina]. [X] would say to me "do not want to visit mummy today". I would say "Mummy would be happy to see you" and "It will be ok, we will be here once you get back".[5]
Ms Kozina deposes as follows:
Sunday visits are incredibly difficult to arrange for my husband and I as [X] is strongly refusing to leave the house. Due to [X]'s refusal, and subsequent meltdowns when we try and encourage him, [X] did not spend time with [Ms Kozina] on 13 of the 14 Sundays below…[6]
….
I am unsure about [X]'s reasons behind the willingness to spend time with [Ms Kozina] from school, while refusing to visit her from our home. I try to encourage [X] by telling him "you should go see your mum", "she loves you " and "she wants to see you". [X] becomes frustrated and repeats "this is [X]'s house. [X]stay in this house ". I am unsure as to why [X] thinks he will be taken from his home.[7]
[5] Affidavit of Mr B Kozina, filed 1 August 2023, paragraph 39.
[6] Affidavit of Ms C Kozina, filed 1 August 2023, paragraph 135.
[7] Affidavit of Ms C Kozina, filed 1 August 2023, paragraph 136.
The quoted evidence was not successfully challenged and I accept it. It reflects positive attempts by both paternal grandparents to encourage and facilitate X’s time with Ms Kozina. It is inconsistent with a finding that the paternal grandparents have undermined X’s relationship with his mother.
In relation to the Friday visits, Ms Kozina has successfully collected X on each of the days he has been at school, and she has attended to collect him. She gave oral evidence that the school staff have assisted in facilitating the visits by telling X that his mother is coming to collect him and directing him to her at the school gate. He has occasionally expressed resistance to coming, including saying that he did not want to go with his mother and that he wanted to get on the bus. Nevertheless, with some encouragement from Ms Kozina on those occasions, he has left school with his mother for a visit. On another occasion, X walked straight past Ms Kozina and tried to get on the school bus, but he was gently manoeuvred by staff back towards his mother. When asked whether X remained resistant by the time she walks him to her car, Ms Kozina gave the following evidence:
By the time he gets to my car, he’s okay, yeah. He kind of switches off once he realises he’s definitely coming, then he will start about the shade of, why is it the shade longer in winter, and you know, he switches like that.
It is clear that changeovers for X at school have been substantially more successful than changeovers that have occurred elsewhere. The Independent Children’s Lawyer now proposes that regular changeovers for X to spend time with his parents occur at school. History suggests they are likely to be successful, with the result that X is likely to spend regular time with each of his parents, and thereby enabling him to maintain a meaningful relationship with them.
Absent my satisfaction that the paternal grandparents have undermined X’s relationship with his parents, and given a proposal whereby school changeovers are likely to be successful, I am not satisfied that there is any need to change X’s residence in order to afford him the opportunity to benefit from having a meaningful relationship with each of his parents.
The paternal grandparents propose that X spend time with each of his parents “as agreed in writing between the parties”.[8] They make that proposal despite submitting that:
There is no dispute that [X] would benefit from having a meaningful relationship with each of his parent (sic). The PGPs expressed clear support for this proposition.[9]
[8] Amended Response of the Paternal Grandparents filed 1 August 2023, page 2.
[9] Submissions of the Paternal Grandparents filed 30 September 2023, paragraph 21.
The communication between the parties is extremely poor. The prospect of the parties coming to subsequent agreements with respect to X spending time with his parents is equally poor. I do not accept that an order for X to spend time with his parents as the parties may agree will afford X the opportunity to benefit from a meaningful relationship with them.
The paternal grandparents submit that there is clear evidence of the parties having agreed to X spending time with each of his parents in the past. They firstly cite the example of time being arranged at McDonald’s in February 2021. The evidence is that the visit did not proceed as planned, with the paternal grandparents understanding Ms Kozina would attend the visit with Y, however she attended with other people. Mr B Kozina deposes to X having subsequent behavioural issues. The paternal grandparents secondly cite the example of agreement being reached for X to attend Ms Kozina’s wedding. X ultimately did not attend the wedding, apparently as a result of miscommunication between the parties. I draw no confidence from those examples that X’s relationship with his parents will be facilitated absent orders for him to spend specific time with them.
There is a further reason why I consider it unlikely X will benefit from a meaningful relationship with his mother in the event I accede to the paternal grandparents’ application. They were unwilling, under cross-examination, to accept the report of professional supervisors that X enjoyed his time with his mother. That attitude suggests they will not do everything they can to promote and facilitate their relationship, which would be of critical importance in the event the orders provide for no specific time between X and his mother.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This primary consideration is to be given greater weight than the first.[10]
[10] Family Law Act 1975 (Cth) ss 60CC(2A).
X has extensive care needs, rendering him significantly more vulnerable to neglect than a typical sixteen year old. In issue is Ms Kozina’s capacity to ensure X’s need for supervision is not neglected.
As Consultant Ms N opined orally, X needs a high degree of supervision given his medical conditions. Ms C Kozina has been primarily responsible for X’s care for the last fourteen years. She gives unchallenged evidence, which I accept, that “[X] requires our full attention and close supervision at all times”.[11]
[11] Affidavit of Ms C Kozina filed 1 August 2023, paragraph 138.
One recent example of the possible consequences of X not being appropriately supervised occurred during a supervised visit with his mother in June 2021. According to the supervision report, Ms Kozina cleaned the bathroom earlier in the day and left bleach in a bucket. X came into contact with the bleach which took some colouring off his tracksuit pants. Quite understandably, Ms C Kozina enquired in oral evidence, what would have happened had he drunk some of the bleach. The incident is demonstrative of the attention and supervision that X requires.
Ms Kozina’s drug and alcohol abuse
Ms Kozina describes herself as having suffered from drug addiction for eight years, from 2008 until 2016.
She gave oral evidence that she didn’t have a drug problem until Y was born in 2008. Nevertheless, she also gave oral evidence that prior to Y’s birth, she had used alcohol and illicit drugs, and said that she had “tried it all”. She accepted in oral evidence that she had a far more extensive history of drug and alcohol abuse than she had disclosed in her affidavit.
After Y’s birth, Ms Kozina gave oral evidence that she was addicted to prescription medication which she obtained over the counter, ultimately taking between 60 and 80 tablets per day. She also gave oral evidence she had misused prescription medication, both of which she had been prescribed. She gave evidence that she took more prescription medication than she should have. She denied there were any other medications she misused.
Ms Kozina attended a psychiatrist, Dr O in late 2014. She told him about her drug use. He reports as follows:
[Ms Kozina] has been smoking cigarettes, 'from 15 years; up till current; on nicotine patch'; she has been drinking alcohol, 'from 15 years; binges in weekends, got blackouts, sexually disinhibited; anger outbursts; drink 3-4 nights in a row; off 1 year’; she has been smoking [an illicit drug], 'when 17-18 years; get paranoid; what's going on in the head; last 1.5 year ago'; she was on [illicit drugs], get increased energy, feel busy, [illicit drugs]; at 18-21 years, got psychotic at 18 years, got spiritual; knew what word, had deep thinking; was in [Country L]; would like it, then feel down'; she was on [prescription medication]; she was on [prescription medication], later replaced by ibuprofen and [prescription medication] dependence, on ibuprofen 200 mg+ [prescription medication], up to 60-80 tab/day; she was in rehab at [M Centre], [Suburb P], for 12 months, 'had 6 months residential rehab; 3 months transition; last 3 months as aftercare; finished last week; was hard; ,want to use yet keep off substance'.[12]
[12] Exhibit 2R2, page 2.
Ms Kozina accepted that the information reported by Dr O was likely to have come from her. When asked whether it was accurate, she gave the following oral evidence:
… accurate, except I notice that I’ve haven’t tried [prescription medication], I wasn’t, I didn’t know how to get, I didn’t even know what [prescription medication] was back then. But that doesn’t matter, it’s all the same, it’s addiction.
Whether or not Ms Kozina abused prescription painkillers, I am satisfied that she has minimised the extent of her drug and alcohol misuse to the Court. Consultant Ms N accepted in oral evidence that Ms Kozina’s medical records reflect a far more serious history of drug abuse than was conveyed to Consultant Ms N. Her abuse of substances has been a feature of her life from the age of 15 years until at least 2016.
In 2009, Ms Kozina had a medical condition which required her to be admitted to hospital and be placed on life support for one week. She gave oral evidence that the condition was a result of her drug use. She failed to disclose it in her affidavit, despite admitting orally that it was serious and reflected the extent of her drug problem. I do not accept her oral evidence that she has been “very forthcoming” about her drug addiction.
In around 2016, Ms Kozina relapsed into prescription drug abuse for around six months. She gave evidence that, as a result, she then agreed to Y living with her father. She agreed that was a significant change for Y. It was accordingly Ms Kozina’s drug abuse that resulted in Y living with her father.
Ms Kozina gave oral evidence that when she was abusing those drugs, they were having a sedating effect upon her. She admitted that she used those drugs whilst the children were in her care, and that the children were accordingly at risk of neglect, and that she was unresponsive to their needs.
Ms Kozina continues to abuse prescription medication, namely a sleeping tablet. She concedes it is a sedative, but denies that it is addictive.
Ms Kozina’s intake form for a rehabilitation centre, Q Centre, in late 2016 records her occasional misuse of sleep medication. It was suggested to her that was something she would have told them. She gave oral evidence:
I don’t know where they got that from to tell you the truth, but that’s okay, I don’t know where they got that… I never misused [sleep medication].
….
Some of this information I’m hearing, I don’t remember much.
….
I don’t abuse [sleep medication].
…
I don’t abuse it, I take it to sleep.
She denied having abused sleep medication prior to attending Q Centre in 2016. She also gave oral evidence “I’m on that medication now, I don’t abuse it, it doesn’t interest me to abuse, I take it for sleep.” I rely on the contemporaneous materials,[13] which I find to have accurately recorded Ms Kozina’s misuse of sleep medication as early as 2016.
[13] Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow & Kirby JJ.
Ms Kozina’s generalised evidence that she does not abuse sleep medication was contradicted by her particularised evidence in relation to her use of it. After being taken to her medical records from 2022, Ms Kozina gave evidence she took one or two tablets in the evening. Throughout 2022 and in the first six months of 2023, she was only ever prescribed sleep medication to take once per day. To take two tablets was accordingly contrary to her prescription.
In mid-2022, Ms Kozina agreed in oral evidence that she had been prescribed medication to replace sleep medication. She nevertheless obtained 120 tablets of sleep medication from a pharmacy that same day. She could provide no explanation for having done so. In late-2022, Ms Kozina obtained a further 120 tablets of sleep medication. In late 2022, she obtained a further 60 tablets, and in late 2022 a further 60 tablets. Accordingly, over a period of six months, Ms Kozina had obtained twelve months’ worth of prescribed medication. I reject her evidence that she lost only her prescription sleep medication when overseas that year. Her husband was unaware of her having done so. I prefer her explanation that she was taking her medication at around twice the prescribed rate.
In early 2023, Ms Kozina obtained a further 60 tablets of sleep medication. In early 2023, Ms Kozina attended her General Practitioner and asked to increase her dose of sleep medication. She was then prescribed to take one higher dose tablet each day. That same day, she obtained 60 tablets. In early 2023, she obtained a further 60 tablets, and in early 2023, a further 60 tablets. Over the course of two months, she had accordingly obtained another eight months’ worth of her prescription. In mid-2023, her doctor was required to obtain approval from the Medicare hotline because Ms Kozina had obtained more than the prescribed amount of sleep medication.
Ms Kozina gave evidence that she did not think her excessive use of sleep medication was a “bad thing” despite her history of abusing prescribed medication. She also gave evidence that “taking an extra pill for me wasn’t a big deal” if it meant she could sleep and function. She ultimately conceded in oral evidence that she might not have taken sleep medication as prescribed.
Her affidavit evidence in relation to her medication is misleading. She deposed in July 2023 that:
I am presently on [antidepressants and sleep medications]. I have been on these medications for about eight (8) years now, following treatment with a psychiatrist from [R Centre]. I cannot now remember the psychiatrist's name.[14]
[14] Affidavit of Ms Kozina filed 25 July 2023, paragraph 232.
She gave oral evidence that she tried an antidepressant for a couple of weeks, realised she did not like it, and went back to sleep medication. Her medication is clearly not stable as her affidavit suggests. Significantly, nowhere did she mention in her affidavit material that she is now taking sleep medication, a drug she has a long history of misusing.
Ms Kozina gave oral evidence that in 2013, she had gone to a rehabilitation facility, M Centre, for her prescription medication dependence. She gave oral evidence that she had been bingeing, and “I always had to have some sort of substance”. Nearly ten years later, she continues to self-administer substances contrary to her prescriptions.
The impact of excessive sleep medication use on Ms Kozina’s functioning is documented in a referral letter from M Centre to Dr S dated late 2013. That referral includes the following under a heading “reason for presentation today”:
A review of current medication particularly the amount of [sleep medication] [Ms Kozina] is currently prescribed. She is currently observed to be experiencing an over medicated presentation. After [Ms Kozina] takes her medication in the morning she becomes drowsy immediately, she appears disconnected, her memory is impacted and ability to focus is impaired. This also appears to be impacting her ability to attend to, and connect with her 5 year old daughter as well as impacting her ability to participate fully in our program.[15]
[15] Exhibit 2R5, page 95.
Although Ms Kozina gave evidence that the referral was made in the context of her prescriptions for sleep medication substantially exceeding the quantity she is now prescribed, excessive sleep medication use clearly had a very significant deleterious effect on her parenting capacity.
More generally, the impact of Ms Kozina’s misuse of medication on her capacity to supervise X can be found in Mr Kozina’s evidence to the Court in 2010:
On another occasion I attended the former matrimonial home to collect the children at an agreed time with [Ms Kozina]. [She] failed to answer the door and through the window I observed [her] to be slumped on the lounge in a state of undress and in a stupefied state. I entered the premises to observe beer bottles and other alcohol bottles scattered around the floor and rubbish scattered throughout the kitchen. I then found [X] running around the home inside unsupervised and unwashed.[16]
[16] Affidavit of Mr Kozina filed 17 August 2010, paragraph 46.
Ms Kozina’s continuing misuse of sedative medication suggests that X, with his particular needs, is at risk of neglect in her care. As Consultant Ms N opined orally, if Ms Kozina is misusing prescription medication, she is unlikely to be able to provide the high degree of supervision X requires.
Ms Kozina’s mental health
Concerns also arise due to Ms Kozina’s mental health. She deposes as follows:
In or around 2007 I was diagnosed with ADHD and [a mental health disorder]. Following rehabilitation, that diagnosis was revised to ADHD and [a mental health disorder].[17]
She gave oral evidence that the affidavit is erroneous, and that she was only diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), in 2015.
[17] Affidavit of Ms Kozina filed 25 July 2023, paragraph 231.
In fact, Ms Kozina was diagnosed in 2014 by Dr O as follows:
[mental health] disorder; features of ADHD; panic disorder with agoraphobia; social anxiety; previous nicotine dependence, previous alcohol abuse, previous cannabis abuse, previous [illicit drugs] abuse, previous opioid dependence, and NSAID dependence; borderline personality traits.[18]
She failed to disclose the other diagnoses in her affidavit material despite recalling in cross-examination having been diagnosed with those other conditions.
[18] Exhibit 2R2, page 99.
When Ms Kozina was asked why she had not disclosed her other diagnoses in her evidence, she gave evidence “to me, that bit doesn’t matter, my diagnoses were there mainly, they were things that affect me in my life.” Ms Kozina’s failure to disclose her other diagnosed mental health conditions, and her minimisation of them, suggests she has limited insight into them. That conclusion is also supported by Ms Kozina’s evidence that her understanding of borderline personality traits were “being a bit narcissistic”.
Ms Kozina has been hospitalised with mental health issues for a period of one month after attempting self-harm. She failed to disclose the incident in her affidavit. She also did not mention it to Consultant Ms N. She was taken to hospital by ambulance in late 2010 “due to thoughts of self-harm and feelings of being unable to cope”, also disclosing thoughts of harming others.[19]
[19] Exhibit 2R4, page 184.
Ms Kozina deposes to being able to manage her ADHD and mental health disorder “with the assistance of a GP”.[20] When Ms Kozina was asked if there was a reason she had not filed any medical evidence about her mental health, she responded by enquiring whether the paternal grandparents’ counsel had her R Centre report from seven years ago and subsequently referred to a letter from her doctor confirming her current medications. Neither provide any current evidence in relation to Ms Kozina’s mental health.
[20] Affidavit of Ms Kozina filed 25 July 2023, paragraph 233.
Contrary to Ms Kozina’s initial oral evidence that she is medicated for her mental health conditions, her ADHD is untreated. Dr T, psychiatrist, reported in late 2015 that:
In terms of ADHD, she has had difficulties both in childhood and adult life, with difficulties with attention and concentration. She was very forgetful, bad a hot temper, was very impulsive, easily distracted and had problems with short-term memory.[21]
[21] Exhibit 2R4, page 116.
Ms Kozina accepted, as also reported by Dr T, that she had angry outbursts and struck her partners from time to time. Ms Kozina has not complied with Dr T’s recommendation that she take Ritalin to treat her ADHD.
It was suggested to Ms Kozina that given her ADHD is untreated, the symptoms she was experiencing in 2015 must be continuing. She gave evidence that was why she was now going back to the psychiatrist and it is something she now wants to start to treat. She also gave evidence: “I’d definitely do a lot better if I found a solution to that”.
Ms Kozina gave oral evidence that she could not concentrate earlier in the year and deferred her studies as a result. She also gave evidence that she struggles with concentration and reading. She spoke of having struggled with ADHD, having lived with it her whole life. She described her other symptoms as including impulsivity, saying and doing things without thinking. She also gave oral evidence she used to have anger outbursts, but they have slowed down in the last four to five years.
When asked how she thought her impulsivity and poor concentration would affect her care of X, Ms Kozina gave the following evidence:
So the one thing… the concentration and that is not too much. There’s an issue I get also is where I’m full on in the morning, I get what I need done, and then I crash, and I get exhausted easy. That is what I believe will be hard, but like I said, another reason why ADHD medication works for people like me.
She went on to give evidence that when she crashes, she does so for about four hours, and that she needs a “nice big rest” before starting a late shift at work. She described her need to crash as related to her chronic sleep problem, a problem she has always had.
Ms Kozina works part time as an allied health worker. In mid-2023, she reported to her doctor she had a panic attack during the course of that employment after being shouted at by a patient. She gave oral evidence that a female patient yelled and screamed at her, and as a result her mental health had deteriorated for a couple of weeks.
Ms Kozina gives evidence that X will be extremely uncomfortable about moving to her primary care. She also deposes to him having previously yelled at her on the phone. Should X yell at Ms Kozina while living with her, there is a risk that she will suffer a similar panic attack or deterioration in her mental health, leaving her unable to meet X’s significant needs.
Ms Kozina was asked whether she visited the doctor to obtain treatment or medication to assist with her anxiety in mid-2023, and gave oral evidence that “not really, I just went, I think, in a way, just to let her know what had happened, and I wanted to go further and take it to my employer, and yeah, and plus I requested not to work at that particular house ‘cause I felt a bit embarrassed, and yeah.” Ms Kozina’s failure to obtain any treatment for the deterioration in her mental health earlier does nothing to ameliorate or mitigate the future risk of decline in her mental health.
In July 2023, Ms Kozina attended her general practitioner to obtain a referral to a psychiatrist. Her husband, Mr U, gave oral evidence that she had taken too much on at that time, and was suffering from lack of sleep. It was Ms Kozina’s evidence that the trigger for her seeking the referral was hearing from a friend that she had gone onto an alternative medication for ADHD. She gave evidence that she “knows the ADHD medication’s gonna work with that stuff”. As Ms Kozina herself thereafter admitted, she does not know it will work because she has not been previously been on the medication she intends to obtain.
Ms Kozina was asked by the Independent Children’s Lawyer what strategies she will employ to manage her own mental health in the event X commences living with her. She gave evidence:
If I am struggling, I’m big on pharmaceutical, because it’s been big for me. Um, I’ll go back, talk to a psychiatrist, and you know, I know I didn’t go and see a psychologist when they asked me to that time, that was in regards to work, I got over it. If I feel I need to, I’ll take the time and do that as well.
The difficulty with Ms Kozina’s evidence is that she has no history of engaging in recommended psychiatric and psychological treatment. Despite managing chronic mental health diagnoses with only pharmaceutical treatment, she has not seen a psychiatrist since 2015. In 2014, her psychiatrist referred her to a psychologist. In 2014 and 2015, her psychiatrist opined:
She needs individual therapy dealing with mood chart, grief and loss issue, sleep hygiene, dealing with negative thoughts, relaxation techniques, exposure therapy, mindfulness, stress tolerance, emotional regulation, inter-personal effectiveness; motivational interview with substance use.[22]
[22] Exhibit 2R4, page 113.
Ms Kozina has not engaged in any psychological treatment since that time, despite also having been referred by her general practitioner to a psychologist in late 2014, discussing recommended therapy with her general practitioner in late 2015, mid to late 2016, and discussing psychological review with her general practitioner in June 2022. Despite Ms Kozina’s oral evidence that seeing a psychologist is now “on her mind”, she has not attended a psychologist, nor made plans to do so. Indeed, she also gave oral evidence that she is not now ready to do so.
When Ms Kozina was asked why she had not completed a recommended course of therapy, she gave the following evidence:
I don’t know, there was a lot going on I guess. Look, I’m a very different person today, so it’s hard for me to go… Um, I didn’t stick to much. But, I can tell you one thing, in rehab, I was in there, for one of them, for a year, I had plenty of therapy.
Whatever Ms Kozina’s perception of herself is, she remains non-compliant with recommendations for psychological intervention to treat her mental health conditions.
Ms Kozina has adduced no evidence in relation to her mental health in these proceedings. Adjusting to X living in her full time care will be a very significant change for her, and one that is likely to cause her significant stress. She concedes in oral evidence that she has not dealt well with stress in the past. When it was suggested to her that the Court could not assess the likely impact on her mental health, given the step she now proposes because she had chosen not to adduce any medical evidence, Ms Kozina gave unsatisfactory evidence that “you’ve got my psychiatrist appointment, you’ve got a letter from my GP, what else do you need”?
Consultant Ms N opined that if there was to be a change of residence for X, there would be a need not only to assess Ms Kozina’s parenting capacity, but there would also be a necessity for a mental health assessment. Ms Kozina chose to obtain neither.
I am without evidence of Ms Kozina’s current mental health state in circumstances where she continues to misuse prescribed psychotropic medication. Her ADHD is untreated, and she is not engaged in treatment that has been repeatedly recommended to her.
Ms Kozina’s impulsivity, poor concentration, and apparent inability to function without substantial day time rest periods, appear to be features of her untreated mental health difficulties. There is no medical evidence before the Court that supports a conclusion that these will be cured by Ms Kozina obtaining the new medication she seeks.
As Consultant Ms N opines, there is a real question arising as to how X’s high needs will be managed by a parent who is impulsive. For X, the consequences are of the highest significance. Ms Kozina’s poor concentration and need for substantial rest during the day is also inconsistent with her having the capacity to meet X’s particular needs. The result is that X would be at unacceptable risk of neglect in her full time care.
That risk is not sufficiently ameliorated by the presence of Mr U in her home. He gave evidence that he will continue to work, primarily some distance away from home, for essentially full time hours. Ms Kozina gave oral evidence that Mr U will probably not be around to help with most of the day to day things. He will accordingly not be available to assist with X’s care on work days when Ms Kozina’s mental health is such that she is unable to meet X’s need for full attention and supervision.
The paternal grandparents submit that X spending any overnight time with Ms Kozina presents an unacceptable risk of harm to him. Having been appraised of the issues around Ms Kozina’s drug abuse, Consultant Ms N opined orally that overnight time would need to be gradually introduced subject perhaps to a period of drug and alcohol testing. Consultant Ms N also accepted in cross-examination that the mix of mental health difficulties in Ms Kozina’s household were indicators of significant risk, for extended time, including overnight time.
I am not, however, satisfied that X spending a single overnight with Ms Kozina each fortnight, exposes him to unacceptable risk of harm in the relevant sense. Certainly, there is a risk that Ms Kozina will be impulsive and inattentive with him. However, I consider that risk to be sufficiently ameliorated by the fact it will only be for a 24 hour period, and at a time when Mr U is likely to be available. Even if Mr U’s own mental health disorder appears to be untreated, I am satisfied he will provide a sufficient level of amelioration to the risk of Ms Kozina’s inattentiveness or impulsivity.
I accept the paternal grandparents’ submission that restraints on Ms Kozina’s substance use, and a regime of drug testing, are unlikely to offer substantial protection from the risk of Ms Kozina continuing to misuse prescription medication. However, I accept her evidence that her periods of significant addiction are behind her, and I am satisfied she now has sufficient capacity to ensure that the risk of her being drug-affected while caring for X, for limited periods of time, is acceptable.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
It is not suggested that X has expressed any particular views about his living arrangements given his medical conditions. Consultant Ms N considers that X is unable to express any relevant wishes, even though she did not make the enquiry of him.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
It is common ground that X has a close and loving relationship with his paternal grandparents, who have been his care providers for the last fourteen years. Consultant Ms N observed X to be relaxed in their care with their interactions “indicative of there being an easy flow in their day-to-day interactions with each other”.[23]
[23] Family Report, paragraph 82.
Despite the length of time that had elapsed between X spending time with each of his parents prior to Consultant Ms N’s assessments in August 2022, she opined that “[X] retains positive memories of them and his bond with each of them remains intact”.[24] X was observed to have a relaxed interaction with his father, stepmother and sister. He also affectionately greeted his mother and stepfather.
[24] Family Report, paragraph 94.
Ms Kozina gave oral evidence that her relationship with X has changed, particularly over the last three years. She described their prior relationship as being very close, affectionate and loving. She nevertheless could not articulate what impact the inconsistency in X’s time with his mother has had on their relationship, other than to say that it was upsetting.
Consultant Ms N opines that “[X]’s bond with each of his parents will benefit from being strengthened through regular contact with each parent in their home, and with [Y] as he moves between his parents’ homes.”[25] She goes on to opine that “[a]s [X] moves into adulthood and his paternal grandparents’ (sic) age, the bonds between [X], his parents and sister will become increasingly important”.[26]
[25] Family Report, paragraph 94.
[26] Family Report, paragraph 94.
I accept Consultant Ms N’s evidence of X’s relevant relationship. The Independent Children’s Lawyer proposes X spend regular time with each of his parents in their homes, which proposal reflects Consultant Ms N’s opinion.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with him, and to communicate with him
Ms Kozina has been absent from X’s life for extended periods of time. She has been in residential rehabilitation for periods of up to six months. She moved to Queensland for another period of six months.
The September 2016 Orders provided for X to spend time with Ms Kozina each alternate Friday afternoon. She gave oral evidence that she did not then see him because she was then living in Sydney and was catching trains. Despite thereafter moving to City V, she did not attempt to avail herself of X’s ordered time with her on Friday afternoons. Her expressed reason for not doing so was that she “did not want to cause any more drama when I’m going to Court”. Ms Kozina thereby failed to take opportunities to spend time with X.
As has been observed, Mr Kozina gave evidence of doing nothing to attempt to re-establish his relationship with his son since 2020.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
The paternal grandparents deny that they have received any money from either parent for X’s support. Ms C Kozina was not challenged on her evidence to that effect. It was suggested to Mr B Kozina that his son had given him $1,000. He denied the proposition. Mr Kozina gives evidence he received $1,000 from Ms Kozina in 2021, which he then gave to his parents in cash. Ms Kozina gave no such evidence. The only administrative assessment of child support in evidence falsely records X to have been living full time with Mr Kozina in December 2021. I prefer the paternal grandparents’ evidence and find that neither Ms Kozina nor Mr Kozina have provided any financial support to the paternal grandparents.
I nevertheless accept Mr Kozina’s unchallenged evidence that he paid X’s school fees whilst he was at W School, which he attended for his prep and primary school years.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
X has lived with his paternal grandparents since the age of three. They have been providing for all of his needs. He has not spent overnight time away from their care. The change now proposed by his parents, is of the most significant magnitude for him. Mr U gave frank oral evidence that the change proposed would be a totally life-changing experience for X.
Ms Kozina gave oral evidence that X is not going to be happy about the change, he loves his grandparents and he feels safe there. She gave evidence that he will struggle sleeping, will be tense, and will want to go back to his grandparents. She anticipates he might experience anxiety. She also gave evidence that she expects her proposal will cause X significant stress and that he will not like it.
It is common ground that X is a child who likes structure and routine. Ms C Kozina gave oral evidence that X’s life is full of routines and that it is very hard to make changes.
The paternal grandparents submit that the Independent Children’s Lawyer’s proposal involves considerable instability for X with multiple changes between three homes. I am not satisfied that any attendant instability is contrary to X’s best interests. If the arrangements are adhered to, he will spend one weekday afternoon with one of his parents each week and Friday night with the other parent. He will remain living primarily in one home.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live in relatively close proximity to each other in City V. It is not suggested any practical difficulty or expense will affect X’s right to maintain personal relations with his parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for the needs of the child, including emotional and intellectual needs
In 2015, Ms Kozina was assessed by Consultant Ms N as being “overly confident of her ability to manage [X’s] behaviour and overly optimistic about how he is likely to cope with change.”[27] Ms Kozina agreed to that assessment being reasonable at the time. Her general practitioner reports Ms Kozina saying in late 2014, that she found visiting her son traumatic. She gave oral evidence that she then had anxiety, despite being sober at the time. Her general practitioner also reports that Ms Kozina then told her that she could not manage overnight stays with X. As has been discussed, I am bereft of any present assessment of Ms Kozina’s capacity to care for X’s needs.
[27] Child Inclusive Conference Memorandum dated 16 September 2015.
Prior to this year, X has not obtained allied health support. It is uncontroversial that X might have obtained such support through National Disability Insurance Scheme (“NDIS”) funding.
Until May 2021, X’s parents retained parental responsibility for him. Pursuant to consent Orders made in September 2016, they had equal shared parental responsibility for him.
Mr Kozina deposed that in 2017 he “applied for NDIS and was approved however my parents refused to take him to any therapies”.[28] The evidence is conclusory and not supported by facts which might enable me to be satisfied of the conclusion.[29] There is no evidence of what, if any therapies, were approved in 2017.
[28] Affidavit of Mr Kozina filed 6 September 2023, paragraph 39.
[29] Kramer & Another & Ward (2017) FLC 93-817 at [10].
Mr Kozina is reported to have told Consultant Ms N that “he took the application forms for NDIS to his parents’ home for them to sign, but alleges that his mother accused him of trying to get them to sign their home over to him, tore the papers up and, either threatened to, or called, the police.”[30] He accepted in oral evidence that he had no need for his parents to sign an NDIS application form. Ms C Kozina denied that Mr Kozina had brought a NDIS form around to them. I accept her evidence.
[30] Family Report, paragraph 57.
In late 2019, X’s school teacher, Mr Z, recorded the following conversation with X’s paternal grandparents:
I asked [the paternal grandparents] if they were going to apply for NDIS for [X] and they said because they are not [X]'s legal guardians they can’t apply for things. I will refer to [Ms AA], school counsellor to see what can be done.[31]
In oral evidence, Mr Z could not recall, what, if anything, had been done with that referral.
[31] Exhibit 2R4, page 206.
The paternal grandparents’ representation to Mr Z that they were unable to apply for NDIS funding because they were not X’s legal guardians, is consistent with the NDIS application form. The only people legally authorised to obtain NDIS funding prior to May 2021 were X’s parents. I reject Consultant Ms N’s criticism of the paternal grandparents for failing to apply for NDIS funding prior to the Order vesting them with shared parental responsibility for X in May 2021.
The paternal grandparents have now obtained NDIS funding and they have arranged for X’s enrolment in relevant services, albeit they have not yet commenced. Their oral evidence satisfies me that they understand the importance of X engaging with those services, upon them becoming available. Although there has been some delay in those services being arranged, I reject Ms Kozina’s submission that the paternal grandparents lack insight into or understanding of X’s medical needs.
The Independent Children’s Lawyer proposes specific orders requiring the paternal grandparents to continue to engage with recommended therapy for X. They consent to the proposal. I find no basis to conclude they are unlikely to comply with such orders. I accordingly reject Ms Kozina’s submission that it is almost certain X will not receive appropriate medical supports in the care of his paternal grandparents.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
X’s cultural background is Country BB. He has some fluency in that language, as well as in Language CC and Language DD. He has previously visited extended family in Country BB.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
Ms Kozina initiated parenting and property proceedings in 2010. She then sought orders providing for both X and Y to live with her. She did not prosecute those proceedings which were dismissed in late 2011 in the absence of any appearance by either party. Ms Kozina sought to explain her behaviour by reference to it having occurred during her period of addiction, when she was not well. It reflects poorly on her attitude to the responsibilities of parenthood, that she was unable to prioritise proceedings in which she sought orders in relation to the children.
Ms Kozina again initiated parenting proceedings in April 2014. She then sought orders only in relation to Y, in particular that Y live with her. She filed the application at a time when she was in drug rehabilitation. Implicit in her then position, is an acceptance that the arrangements then in place for X, to live with his paternal grandparents, was in his best interests.
Mr Kozina responded to Ms Kozina’s application, seeking an order that he have sole parental responsibility for X. Those proceedings ultimately resulted in final Orders being made in the absence of the paternal grandparents providing for the parents to have equal shared parental responsibility for both children. Ms Kozina gave oral evidence she understood that to mean the parties had “equal parental rights” over both children. A notation to the Orders was in the following terms:
[X] currently lived with the paternal grandparents and the parents do not intend to make any significant changes to [X]'s routine, living arrangements or schooling without the agreement and input from the paternal grandparents.[32]
[32] Final Orders dated 20 September 2016, Notation A.
What reflects poorly on both parents is the fact that they sought to retain parental responsibility for X despite overwhelmingly leaving the responsibility of his care to the paternal grandparents. The result is that the paternal grandparents had no legal authority to make significant decisions for him, despite being his sole care providers. One consequence is that they were unable to arrange for NDIS services for X.
Ms Kozina sought to justify her failure to tell the paternal grandparents of the proceedings initiated by her in 2014, by suggesting it was Mr Kozina’s job to do so. Given the proceedings had been initiated by her, and she understood them to be involved, despite the terms of her Initiating Application, I consider her failure to notify the paternal grandparents to reflect poorly on her attitude to the responsibilities of parenthood.
Ms Kozina has also failed to engage at any time directly with the paternal grandparents. She gave oral evidence that she has spoken to them maybe once or twice since Y was born. She also gave oral evidence that she had no direct communication with the paternal grandparents after X commenced living with them until she sent them a letter in August 2020. She made no contact with them to discuss arranging support services for X and otherwise did nothing else to arrange support services for X. Her failures reflect poorly on her attitude to the responsibilities of parenthood.
When Ms Kozina initiated the current proceedings in December 2020, she sought orders providing for X to continue to live with the paternal grandparents, and spend time with her initially for day time visits each week, increasing to one overnight, and one day period each fortnight. That remained her position when the matter was first listed for final hearing in August 2023. Ms Kozina gave oral evidence that her proposal then was in X’s best interests.
Two days after the final hearing was not reached in August 2023, Ms Kozina indicated through her counsel that her position had changed to that which she now prosecuted. She gave oral evidence that the orders she now proposes are “one hundred percent” in X’s best interests. When asked whether anything happened over the course of those days that led her to change her view, she gave the following oral evidence:
I was contemplating prior to that, um, but I think when I’d come in, I’d just really realised that, you know, I know that [X] will be so uncomfortable at first to come and live with me, so I was trying to avoid that, um…
…
I didn’t want to disrupt what he already had, I just wanted to add to his life, that’s all. And then um, coming to that I just realised that these people aren’t going to come to the party, and that they’re not gonna support,.. you know, my relationship with me, his sister, his father.
Ms Kozina’s failure to obtain necessary professional support for herself and her continued misuse of prescription medication, also reflects poorly on her attitude to the responsibilities of parenthood, given her criticisms of the paternal grandparents’ care of X, particularly in light of her evidence, that she has previously been contemplating proposing X live with her.
Mr Kozina’s failure to take any steps to spend time with X since 2020, reflects poorly on his attitude to the responsibilities of parenthood. His failure to take any such step persisted despite Ms N’s opinion expressed nearly twelve months ago:
[X]'s bond with each of his parents will benefit from being strengthened through regular contact with each parent in their home, and with [Y] as he moves between his parents’ homes. As [X] moves into adulthood and his paternal grandparents’ age, the bonds between [X], his parents and sister will become increasingly important.[33]
[33] Family Report, paragraph 94.
Y has been living with Mr Kozina for an extended period of time. His failure to spend time with X has also meant the siblings have not spent any significant time together. So much also reflects poorly on Mr Kozina’s attitude to the responsibilities of parenthood.
Any family violence involving X or a member of his family
I have referred already to Ms Kozina’s evidence, that she has struck her partners from time to time. She has also been convicted of stalking/intimating, with intention to cause fear or harm, and destroy or damage property. At the time of the offences, X and Mr Kozina were living at the paternal grandparents’ home. The Police report for the incident in late 2010 is in the following terms:
[In late] 2010 the Victim [MR KOZINA] has recieved a phone call from the Accused [Ms Kozina]. The phone message consisted of threats to harm the victim if he did not allow the accused to have their son [X] 4 years. A few minutes later the accused has arrived at the victims address, … The accused, their daughter … and a male person have pulled up on the front lawn. The accused has got out of the vehicle and started yelling at the victim who was standing on the top floor veranda. The accused has gone to the boot of her car and pulled her wedding dress out and threw it on the wall. The male person has then got out of the car holding a knife. The victim has then rang police and the male person ran off .. The accused has then pulled a cricket bat out of her car and walked up the drive way and started to bash the garage roller door. The accused the walked to the front door and hit it with the cricket bat, all the time yelling at the victim. The accused has walked back to the drive way and swung the cricket bat back and then smashing it foreward into the front left hand panel of the victims car. .. The accused then jumped back into her car yelled out at the victim,"Tell the police I am not scared of AVO's, If I don't get [X] tomorrow, I am going to come back here with my boy friend ......... and a few friends and we are going to get you".The accused then drove away.[34]
[34] Exhibit 2R4, page 15.
Ms Kozina gave evidence that she did not remember some aspects of the Police report, but admitted that her purpose in attending the home was because of her being upset over not seeing X. Ms Kozina sought to explain her failure to mention the incident to Consultant Ms N due to it being a little detail, that happened a long time ago. In the context where Ms Kozina sought to criticise Ms C Kozina for her proposal for changeovers to occur in a public location, I am critical of Ms Kozina’s failure to mention the incident in her affidavit, or to Consultant Ms N, and her attempt to minimise its significance.
Although Ms Kozina gave oral evidence that she could not recall Y being with her, I prefer the contemporaneous Police record which led to her conviction. Ms Kozina exposed her children to a significant episode of family violence at X’s then residence.
Ms Kozina also gave oral evidence that she probably put a boyfriend up to sending threatening messages to Mr Kozina, and that she made reports to Police in 2015 of being assaulted by her then boyfriend.
Ms Kozina gives evidence that in late 2008, Ms C Kozina “became physically violent towards me and tried to kick me in the stomach”.[35] Ms Kozina nevertheless thereafter left X in the primary care of Ms C Kozina. Ms Kozina made no such allegation in her affidavit, filed in this Court in 2010, despite X then being in the paternal grandparents’ care. She also did not mention it when asked about family violence by Consultant Ms N.
[35] Affidavit of Ms Kozina filed 25 July 2023, paragraph 52.
Mr Kozina gives evidence that his mother “kicked [Ms Kozina] in the stomach”.[36] He nevertheless gave oral evidence that he was not certain if he had witnessed it; that he could not remember whether he had seen it. He could not remember where it had occurred or whether he was there. When it was put to him that he could not say what had happened, he claimed to have blocked memories out and to have self-diagnosed Post Traumatic Stress Disorder (“PTSD”).
[36] Affidavit of Mr Kozina filed 6 September 2023, paragraph 14.
Ms C Kozina denied that she had tried to kick Ms Kozina. There was nothing about the way she gave her evidence that caused me to doubt it. I accordingly accept Ms C Kozina’s evidence.
I also prefer Ms C Kozina’s denial of Ms Kozina’s allegation, that when delivering X to the paternal grandparents’ home, Ms C Kozina had come running out of the house towards Ms Kozina’s car screaming “you don’t come to my house”.[37] Ms Kozina’s evidence is inconsistent with her earlier evidence in these proceedings, that she had not attended the paternal grandparents’ home.
If a family violence order applies, or has applied, to X or a member of his family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[37] Affidavit of Ms Kozina filed 25 July 2023, paragraph 77.
In mid-2010, a two year Apprehended Domestic Violence Order was made to protect Ms Kozina from Mr Kozina. There is insufficient evidence from which I can draw any inferences about the circumstances of its making.
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 X
Making findings that X’s best interests are met by having a meaningful relationship with his parents, and making orders for time to occur only as agreed between the parties, is likely to lead to further litigation between them. Conversely, specifying the time that is to occur will reduce that risk.
Any other relevant fact or circumstance
Not relevant.
CONCLUSIONS
Parental responsibility
The presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him is inapplicable as there are reasonable grounds to believe that one of his parents has engaged in family violence.[38] As has been observed, Ms Kozina has been convicted of offending, with intention to cause fear or harm, at the home of the paternal grandparents.
[38] Family Law Act 1975 (Cth), s 61DA.
Consultant Ms N opines that whomever X lives with ought to have parental responsibility for him. I accept that opinion. Given X will continue to live with the paternal grandparents, I am satisfied that it is in his best interests for them to have parental responsibility for him. I agree with the Independent Children’s Lawyer that such vesting of responsibility should have attached to it conditions that the paternal grandparents keep the parents informed of relevant decision making.
The Independent Children’s Lawyer proposes that the paternal grandparents have equal shared parental responsibility for X. The effect of such an order is that Mr B Kozina and Ms C Kozina would be required to make joint decisions about major long term issues affecting X, consult with each other in relation to such decisions and make a genuine effort to come to a joint decision about such issues.[39] In circumstances where their marriage is intact, I am not satisfied it is in X’s best interests for those requirements to be imposed upon them. I prefer the formulation proposed by the paternal grandparents, that they have sole parental responsibility for X. So much will ensure decisions are made in a timely fashion without the need for any unnecessary pre-conditions to be satisfied.
[39] Family Law Act 1975 (Cth), s 65DAC.
Living arrangements
In Consultant Ms N’s report, she opines that if the Court is concerned about the paternal grandparents undermining orders for X to spend time with each of his parents, “there would need to be a further assessment in terms of how each parent might approach such a major change, as well as information from appropriate professionals in relation to the likely impact on [X].”[40] She gave oral evidence that those assessments have not been undertaken. She confirmed that she had undertaken an assessment of the application for X to spend time with Ms Kozina, and not an application to change X’s living arrangements.
[40] Family Report, paragraph 104.
Contradicting the opinion expressed in the Family Report, that further assessment would be needed prior to considering a change in X’s living arrangements, Consultant Ms N initially gave oral evidence that “the only way forwards, unfortunately, is that there’s a change in residency.”
Consultant Ms N expressed that opinion in light of what she said, had been the additional material she had read prior to giving evidence at trial. Her oral evidence was inconsistent with her having read that material thoroughly. One of the significant criticisms she levelled at the paternal grandparents was a lack of their arranging allied therapy supports for X. She gave oral evidence that “the paternal grandparents have not, done anything, in all the time X has been with them to support him in terms of speech, cognitive development, social interactions, contact with people outside his school”. She also gave oral evidence “there’s been no proactive attempt by the grandparents to educate themselves about what this child might need, and reach out to link him in to any services”. That evidence is entirely inconsistent with the uncontroversial evidence in the paternal grandparents’ affidavits that they have taken steps to obtain speech and occupational therapy for X and have completed online Autism courses.
More significantly, Consultant Ms N had herself made no assessment of Ms Kozina’s parenting capacity. That is despite expressing her concerns about the impact of X commencing to live with his mother on her mental health, given her bipolar disorder. In expressing her support for a change to X’s residence, Consultant Ms N had been unaware of the fact that Ms Kozina had not seen a psychiatrist to manage her mental health since 2016, that she has failed to participate in recommended psychological treatment, that her ADHD is currently untreated, and that she continues to misuse prescription medication. When those matters were brought to Consultant Ms N’s attention in oral evidence, her opinion changed such that she no longer considered the change of residence that she had previously recommended to be in X’s best interests. Given the findings I have made in relation to those matters, I do not find in Consultant Ms N’s opinion, support for the change of residence originally recommended orally by her.
I am not satisfied it is in X’s best interests to now live with Ms Kozina.
Spend time arrangements
I accept the Independent Children’s Lawyer submission that the regime of time proposed by her will provide a “basic structure for the restoration of X’s relationships with his parents”.[41] Imposing such a structure is consistent with the paternal grandparents’ submission that X will benefit from having a meaningful relationship with each of his parents. I find it to be in X’s best interests.
[41] Submissions of the Independent Children’s Lawyer filed 29 September 2023, paragraph 22.
I also accept the submission that the regime of time proposed for X will have the benefit of predictability and routine for him. The Independent Children’s Lawyer initially proposed that afternoon visits between X and each of his parents occur on Wednesdays. Mr Kozina submits that he is unavailable on Wednesdays, and proposes such time occur on Thursdays instead. The Independent Children’s Lawyer did not oppose the proposed amendment, provided X’s afternoon time with Ms Kozina also occurs on a Thursday for consistency. I find those amendments to be in X’s best interests, to both ensure his parents are available during ordered time and to give consistency to his weekly arrangements.
Overseas travel
Ms Kozina and Mr Kozina seek to restrain X from leaving Australia “until further Order”.[42] Given there is no suggestion the proceedings ought not now be resolved on a final basis, I infer that the proposal seeks to restrain X leaving Australia until he turns eighteen.
[42] Proposed Minute of Orders on Behalf of Applicant filed 16 August 2023, paragraph 15.
Ms Kozina has had no direct communication with the paternal grandparents for years. Nevertheless, she deposes that “it is my belief if they are able to take [X] to [Country BB], they will not return him”.[43] She also gave oral evidence that she has a “sneaking suspicion they’re planning on staying there.” I place minimal weight on her suspicions and beliefs which are not informed by anything the paternal grandparents have recently said to her.
[43] Affidavit of Ms Kozina filed 25 July 2023, paragraph 246.
Ms Kozina deposes that the paternal grandparents own property in Country BB. They deny the proposition. The basis for Ms Kozina’s conclusory evidence is unstated and does not satisfy me that her evidence ought be preferred.
The paternal grandparents have previously travelled with X to Country BB. His parents have signed passport applications to enable that to occur. On each occasion they have returned with X. Had their intention been as Ms Kozina suspects or believes, they would not have done so.
Ms Kozina conceded in oral evidence that of course it would be a good thing for X to be able to travel to Country BB. Airplanes are one of the things that X is intensely focused on.
I am satisfied that it is in X’s best interests to be able to travel internationally with his paternal grandparents. They propose a regime for that to be done on notice to X’s parents, subject to the deposit of a $20,000 bond to be held by solicitors. I find the orders proposed by the paternal grandparents for overseas to travel, to be in X’s best interests.
Other relief sought
Limited submissions were made by the parties with respect to the other detailed relief proposed by the Independent Children’s Lawyer. The paternal grandparents consent to substantial portions of it. I am generally satisfied that the detailed orders proposed are in X’s best interests, including requiring the parents to participate in various programs. I prefer the proposal for changeovers to occur at a neutral location, given difficulties that have previously transpired at the paternal grandparents' residence.
Mr Kozina submits that notifications from the paternal grandparents to the parents ought occur in writing, and that he be included in an order providing for X to spend additional agreed time with his mother, which amendments the Independent Children’s Lawyer did not oppose. I find those amendments to be in X’s best interests.
Mr Kozina also proposes that there be an order for X’s transition from school to work program. The Independent Children’s Lawyer adopted that proposal and suggested a formulation for it. I also find that participation to be in X’s best interests, given it reflects Ms G’s recommendation.
Mr Kozina proposes that the paternal grandparents advise the parents of any treatments obtained for X whilst overseas. The relief sought is unnecessary given the other relief sought by the Independent Children’s Lawyer requiring them to notify the parents of medical practitioners and therapists assessing or providing treatment for X.
Mr Kozina also proposes that the paternal grandparents be restrained from taking X to any unqualified practitioners for treatments or medication in Australia or overseas. On what basis a practitioner would be determined to be qualified or not is not articulated. I am not satisfied the relief sought is capable of being clearly understood or enforced. I am not satisfied it is in X’s best interests.
The Independent Children’s Lawyer seeks the parties each pay her costs fixed in the sum of $6,532. Pursuant to section 117 of the Act, each party is to bear their own costs of proceedings under the Act. The Court nevertheless has a discretion to make such order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
The paternal grandparents submit there is no circumstance justifying the making of an order for costs against them. They are not in receipt of a grant of legal aid and have incurred additional costs as a result of Ms Kozina’s late change of position in the proceedings. Mr B Kozina is shortly to retire. They have been supporting X without financial assistance from his parents for the overwhelming majority of his life. I am not satisfied that the circumstances justify an order for costs against the paternal grandparents.
Ms Kozina submits that she has gone into significant debt to fund the proceedings. She contends that she would suffer financial hardship if she was required to bear a proportion of the costs, with the result that the Court must not make the order.[44] I am not so satisfied. The extent of her financial hardship is not articulated, and I am not satisfied of the conclusion based on the evidence before the Court.
[44] Family Law Act 1975 (Cth) ss 117(4)(b).
Both Ms Kozina and Mr Kozina are employed. They have been unsuccessful in the proceedings in seeking orders for X to live with Ms Kozina. I am satisfied that the circumstances justify an order for costs against them in favour of the Independent Children’s Lawyer. Absent contrary submission, I fix those costs in the amount sought by the Independent Children’s Lawyer.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 17 October 2023
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