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
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…
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CaseChat Overview and Summary
The legal issues at hand were primarily about determining the best interests of the children, considering their unique needs and circumstances. Given that X has autism spectrum disorder and an intellectual development disorder, and Y is younger, the court had to weigh various factors including the children’s health, education, and emotional well-being. Furthermore, the court had to consider the parents' past behaviours and current circumstances, especially Ms Kozina’s substance use and mental health disorders.
Judge Glass concluded that the paternal grandparents should have sole parental responsibility for X, given his complex needs and the stability he has experienced in their care. The court outlined specific conditions for X to spend time with his parents, including requirements for drug testing and adherence to routines. For Y, the court ordered equal shared parental responsibility between the parents, with Y living primarily with the father but spending significant time with the mother. The court also imposed several conditions to ensure the children's safety and well-being, such as restrictions on discussing the proceedings with the children and requiring the parents and paternal grandparents to complete specific courses. Additionally, the paternal grandparents were permitted to travel overseas with X, subject to certain conditions including providing a bond and detailed travel plans.
In summary, the court issued comprehensive orders aimed at balancing the children's need for stability and support with the parents' right to spend time with their children. The orders reflect a careful consideration of the children's best interests, taking into account their specific needs and the parents' circumstances.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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