Kruger and Kruger

[2018] FCCA 3485

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRUGER & KRUGER [2018] FCCA 3485

Catchwords:
FAMILY LAW – Parenting & property – variation of interim orders made by consent – allegations of alcohol use by father – where father currently spends supervised time with child – lack of affidavit material filed to support changes sought by mother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS KRUGER

Respondent: MR KRUGER

File Number: MLC 5804 of 2018

Judgment of: Judge Mercuri

Hearing date: 19 November 2018

Date of Last Submission: 19 November 2018

Delivered at: Melbourne

Delivered on: 19 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Lane

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Indovino

Solicitors for the Respondent: Geraldine O’Connell Lawyer & Consultant

ORDERS

1. The matter be adjourned to 4 September 2019 at 10:00am for final hearing before Judge Small (with an estimated hearing time of 3 days).

2. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

3. Order 2 of the orders made on 4 July 2018 be varied as follows:

   (a)the father spend supervised time with the child [X] born 2015 (“the child”):

   (i)in week 1, on Tuesdays from 9:00am until 4:00pm and Sundays from 11:00am until 3:00pm; and

   (ii)in week 2, on Thursdays from 11:00am until 3:00pm; and

   (b)for the purposes of changeover, unless otherwise agreed in writing between the parties:

   (i)if the child is attending the [omitted daycare centre] on the day of contact, then changeover occur at [omitted daycare centre]; and

   (ii)if the child is not attending the [omitted daycare centre] on the day of contact, changeover is to occur at Location A.

4. No later than six (6) months from the date of these orders, the father attend upon Dr A, at his sole expense, for the purposes of the preparation of an updated report from Dr A as to the father’s:

   (a)psychiatric and emotional health including as to any alcohol use disorder; and

   (b)the extent to which there are factors that may impact upon the father’s capacity to provide for the child’s needs

   with the father to provide written confirmation to the mother’s lawyers of his attendance within 24 hours of receiving a written request from the mother’s lawyers and to provide a copy of the report to the mother’s lawyers within 48 hours of receipt.

5. On or before 3 months prior to the final hearing, the parties do all things necessary and sign all such documents as are required to commission the preparation of an updated family report by Ms B as to the child’s ongoing care arrangements.

6. For the purposes of Christmas 2018:

   (a)if the mother is required to work on Christmas Eve and/or Christmas Day, the mother is to provide the father with notice of the day on which she is required to work within 24 hours of her receiving her work roster (“the mother’s rostered day”) and the child will spend time with the mother on her non-rostered day and the child will spend time with the father on the mother’s rostered day;

   (b)in the event that the mother is not working on either Christmas Eve or Christmas Day:

   (i)in 2018 and each alternate year thereafter, the child spend Christmas Day with mother and Christmas Eve with the father; and

   (ii)in 2019 and each alternate year thereafter, the child spend Christmas Day with the father and Christmas Eve with the mother.

7. The applicant file and serve any further affidavit at least 28 days prior to the final hearing.

8. The respondent file and serve any further affidavit at least 14 days prior to the final hearing.

9. By 4:00pm two working days prior to the final hearing, each party file and serve an outline of case document including the following:

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)an outline of contentions with respect to:

   (i)each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (ii)whether the presumption of equal shared parental responsibility applies (section 61DA);

   (iii)the considerations relevant to equal time and substantial and significant time (section 65DAA); and

   (iv)other matters relevant to the decision (such as sections 60CG, 61F, 65DAB, 65DAC, etc);

   (d)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

   (e)the main contentions on disputes as to:

   (i)what items are to be included in the pool; and

   (ii)the value of each asset in the pool;

   (f)the contributions claimed or contended for;

   (g)the section 75(2) factors relied upon;

   (h)contentions on any disputed matters;

   (i)the percentage adjustment contended for;

   (j)(if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and

   (k)a statement of the precise orders sought.

10. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.

AND THE COURT FURTHER ORDERS BY CONSENT THAT:

1. The father set up and maintain a PIN password on any mobile phone, computer or other electronic device in his possession that he has or may have in the presence of the child for the purpose of preventing the child’s access to material stored on the device.

2. Until further order, the father:

   (a)continue to attend upon Mr C, psychologist at his expense for the purposes of counselling and therapeutic intervention  to address his alcohol use disorder and to adhere to and comply at all material times with ongoing treatment;

   (b)forthwith provide an irrevocable authority to Mr C to immediately contact the mother and father’s lawyers to inform them in the event he holds concerns as to the impact of the father’s alcohol use disorder upon his capacity to care for the child; and

   (c)forthwith provide to Mr C a copy of the family report of Ms B dated 1 November 2018 and the report of Dr A.

3. The parties forthwith do all things necessary and sign all such documents as are required to transfer the motor vehicle presently driven by the mother namely vehicle registration [registration number omitted] into the mother’s sole name to occur at the mother’s expense.

4. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

a.the filing of documents; or

b.any other procedural issues

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the party in default or their solicitor may be ordered to pay the costs of the other parties wasted as a result of the default.

(B)To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an associate or deputy associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.

(C)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(D)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Kruger & Kruger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5804 of 2018

MS KRUGER

Applicant

And

MR KRUGER

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed this morning for a mention returnable after orders were made by consent between the parties on 4 July 2018. The mother has sought various amendments to those orders which were made by consent on that day, which are set out in a minute which has been handed up by her counsel. I will deal with those proposed orders in turn. Some of the orders have been agreed to but the bulk of them have not. The first issue that arises is that the mother is seeking a change to the time spent with the father. 

3. The current orders provide that the child is to spend time on a fortnightly cycle, in week 1 on Tuesday and Sunday from 11:00am until 3:00pm and in week 2 on Thursday from 11:00am until 3:00pm. The mother is seeking a change so that time spent with the father occur on Tuesdays only from 9:00am until 4:00pm. The father is happy to accommodate the change to Tuesdays from 9:00am until 4:00pm; however, seeks that the child be permitted to continue to spend time with him from 11:00am until 3:00pm on Sundays. 

4. The mother has not put on affidavit any changes to her work situation, which are said to warrant the change to this timetable; but in light of the father’s concession that he is prepared to agree to the time on Tuesdays, it is not necessary for me to deal with that any further. The remaining issue is whether or not the father’s time on a Sunday should continue. It has been put on behalf of the mother that the child should not be required to spend time with the father on Sundays because to do so would impinge upon the child’s time on the weekends with the mother, and given that the mother is now working full time during the week, this is an unreasonable imposition on the child’s time with her as primary carer. 

5. The father opposes this and it was put on his behalf that there is no basis on which that change should be made and importantly, that there are particular aspects of spending time on a weekend that are not available during the week.

6. Having regard to the family report that has been prepared by Ms B and filed in these proceedings, I am satisfied that the child has a loving and positive relationship with her father and given the age of the child (she is only three years of age), it is important to facilitate that relationship and to encourage the child to have time with the father, not only during the week but also on weekends when there may be other activities that he would wish to share with the child. I therefore do not propose to make an order in the terms sought in order 1(a) of the minute which has been submitted by the mother.

7. The mother also seeks a change to the changeover provisions in the orders. It has been said that the child has been enrolled in [childcare centre omitted] and as a result, it has been suggested that where changeover is to occur on a day that the child is in childcare, that should be the place for changeover.

8. Given the respective positions of the parties, I am satisfied that it would be in the child’s best interests for there to be as minimal contact between the parties as possible and, therefore I agree that an order providing for changeover to occur at childcare wherever that is possible is appropriate in the circumstances.

9. The mother also seeks an order that where the child is not attending childcare, changeover take place at the Location B. In the orders made on 4 July 2018, the parties agreed that changeover would be at a midpoint being Location A. Again, there is no evidence on affidavit as to why that ought to be changed and I am not satisfied on the basis of the evidence before me that there is any proper basis for that change to be made. 

10. The mother also seeks an order that the father and the supervisor only attend changeover together with the mother and/or her agent.  Again, there is no affidavit material which would support that particular order and I do not propose making an order in those terms.

11. The mother also seeks an order that in the event that the [childcare centre omitted] is closed on a day on which the child is due to spend time with the father and the mother is rostered on to work and is unable to arrange an agent to effect changeover, that contact be suspended for that day and make-up time occur on the next day that the childcare centre is open.

12. Given that the orders provide that where the child is not attending childcare then changeover is to occur elsewhere, I am inclined not to make an order to that effect. Again, the mother has not filed any further affidavit material attesting to the difficulties that she, or her counsel says that she would experience and therefore, there is no evidence before me upon which I could make an order in the terms sought by the mother.

13. A number of the provisions that the mother seeks are in response to alleged alcohol use by the father. In particular, the mother seeks that:

    a)the father be required to obtain a breathalyser;

    b)he undertake random alcohol and drug testing;

    c)he have an interlock device fitted to a vehicle;

    d)he be prevented from driving any vehicle other than the one to which the interlock device is fitted whilst the child is a passenger in his car; and

    e)a further order that if the father fails to comply with any of those provisions, his time with the child be suspended.

14. The mother in her initiating application and affidavit makes reference to the father’s alcohol use during the relationship and has relied upon that alcohol use as the reason for seeking those orders.

15. In addition, the mother’s counsel referred to comments made in the report by Dr A about his discussions with the father’s counsellor. It appears from those discussions that the father lacks insight into his alcohol use and the mother is concerned that this places the child at risk whilst in the father’s care. I have had regard to the affidavit filed by Dr A but am satisfied that the orders which were made by consent on 4 July 2018 adequately deal with this issue. In particular, those orders provide that the father is restrained for a period of 24 hours prior to commencing any time with the child from ingesting alcohol or any other drug. I am satisfied that this provides sufficient protection against any risks that the mother has raised.

16. I have also had regard to the fact that both Dr A’s affidavit and also the report by Ms B make reference to the fact that whilst the father does appear to have minimised the level of dependence that he has on alcohol, he appears to have made some significant inroads through the counselling that he has received with Mr C. Clearly, this is an issue which will require ongoing monitoring but as I say, I am not satisfied that there is anything in the material before me which warrants any further incursions into the father’s rights other than the restraint which has already been imposed.

17. In particular, I note that there is no evidence which has been filed or relied upon by the mother to suggest that the father has not complied with the current restraints and I am also mindful of the fact that the father’s time with the child currently is entirely supervised.

18. The mother also seeks an order in relation to the father setting up and maintaining a PIN password on any mobile phone. The father has agreed to an order in those terms and I therefore make an order in the terms set out at order 8 of the mother’s proposed orders.

19. The father has also agreed to continue to attend upon his psychologist, Mr C and has agreed to orders 9(a), (b) and (c), subject to an amendment to order 9(b) to provide that Mr C is given authority to notify both the mother’s lawyers and the father’s lawyers in the event that he holds concerns as to the impact of the father’s alcohol use upon his capacity to care for the child. I have also had regard to that particular order as another protective mechanism to ensure that the child is not at risk whilst in the father’s care.

20. I note that the mother seeks an order for an updated psychiatric assessment and also an updated family report. I agree that this would be appropriate and orders will be made in those terms having regard to the final trial date.

21. The mother also seeks orders for random alcohol and drug testing. Given my findings as previously stated in relation to my views about the orders sought by the mother generally in relation to the father’s alcohol use and given the order that the father is required to continue engaging with his psychologist, Mr C, and his obligation to notify both the father and the mother’s lawyers in the event that he holds any concerns about the impact of the father’s alcohol use, I do not propose making an order at this stage in relation to random alcohol and/or drug testing.

22. It follows then that I do not propose making orders in the terms sought in orders 12 or 13 of the proposed minute, which require the use of an interlock device or a restraint on the father’s driving any vehicle; nor do I propose making any order in relation to the suspension of time as set out in orders 14 and 15.

23. The mother also seeks orders for international and interstate travel and the issuing of an Australian passport. Again, no evidence has been put before the Court today as to the basis on which that order is being sought. There is no evidence of any impending travel or any need for such travel and I therefore do not propose making any orders in those terms at this stage.

24. In relation to special days, the mother seeks an order for the purposes of Christmas 2018; that the father’s time either occur on Christmas Eve or Christmas Day, depending effectively upon the mother’s work roster. I propose making an order that if the mother is required to work on one or other of those days, the mother is to provide the father with notice of the day on which she is required to work and that the child will spend time with her on the other day. 

25. That is, if the mother is required to work on Christmas Eve, the father’s time will be on Christmas Eve and the mother’s time will be on Christmas Day but if she is required to work on Christmas Day, then the father’s time will be on Christmas Day and the mother’s time will be on Christmas Eve. If the mother is not working on either of those two days, then I propose that the order provide that in 2018, the child will spend Christmas Day with the mother and Christmas Eve with the father and the reverse will apply each subsequent year, alternating thereafter.

26. In relation to property, I will make an order by consent in the terms of order 24. I otherwise do not propose making any other orders. Both parties are obliged to comply with their obligations for discovery and they are expected to do so and I do not propose dealing with that any further.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 19 November 2018