Mertal & Kohler
[2024] FedCFamC2F 1683
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mertal & Kohler [2024] FedCFamC2F 1683
File number(s): PAC 5550 of 2020 Judgment of: JUDGE STREET Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – Interim parenting arrangement - recommendation in family report for the child to spend overnight time with the father - child has not progressed to spending overnight time with the father - ongoing mental health engagement by the father – promote the safety of the child - co-sleeping is not in the best interests of the developmental, psychological and emotional needs of the child - best interest of the child to advance to overnight time with the father Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 20 November 2024 Place: Sydney Solicitor for the Applicant: Mr M Sakr of Truth Lawyers Solicitor for the Respondent: Mr D Krakue of Khalil Family Lawyers Pty Ltd Solicitor for the Respondent: Mr M MacDiarmid of Mark MacDiarmid Family Law Specialist ORDERS
PAC 5550 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MERTAL
Applicant
AND: MS KOHLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
Parenting Orders
Earlier Parenting Orders
1.All earlier Interim Parenting Orders are vacated.
Sole Parental responsibility
2.Subject to order 3, the mother shall have sole parental responsibility for making decisions about all major long-term issues in relation to the child X born in 2019 (‘the child’).
3.The mother must communicate to the father in writing at least 14 days before making any major long-term issue decision
4.The father may communicate in writing within 7 days of notification of his views on the major long-term issue.
5.The mother must take into account the fathers views and at the time of decision provide in writing reasons for the major long-term issue decision.
Live with
6.The child X born in 2019 shall live with the Mother.
Spend time with
7.The child shall spend time with the father as agreed in writing between the parents and failing agreement as follows:
7.1From Saturday 23 November 2024 at 5:00pm until 4:00pm on Sunday.
7.2Commencing Thursday 28 November 2024 and each alternate fortnight from 10:00 am until 5:00 pm when not a kindergarten/school day (the parties should otherwise agree in writing what should occur on a Thursday that is a kindergarten/school day).
7.3From 7 December 2024 until Thursday 6 February 2025, each alternate weekend from 9.00am on Saturday until 4.00pm on Sunday.
7.4From 6 February 2025 until the end of the first term holidays from after kindergarten/school term or 5:00pm Friday until 6:00pm on Sunday, each alternate weekend.
7.5After the completion of first term holidays from afterschool kindergarten/school term or 5:00pm Friday until 6:00pm Sunday, each alternate weekend until the commencement of kindergarten/school on Monday.
7.6At the end of the first term kindergarten/school holidays in 2025, and thereafter, the first half of the kindergarten/school holidays with the father and the second half of the kindergarten/school holidays with the mother unless otherwise agreed in writing.
7.7For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the father’s care pursuant to these Orders and failing agreement from after kindergarten/school until 6.00pm on kindergarten/school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
7.8From 8.30am on Good Friday until 2.00pm on Easter Saturday in even numbered years;
7.9From 2.00pm on Easter Saturday until 5.00pm on Easter Monday in odd numbered years;
7.10From 2.30pm Christmas Eve until 2.30pm Christmas Day in odd numbered years;
7.11From 2.30pm Christmas Day until 2.30pm Boxing Day in even numbered years;
7.12From 10.00am until 6.00pm on Father’s Day in each year that the child is not ordinarily in the father’s care pursuant to these Orders;
8.The child’s time with the father be suspended on the following occasions:
8.1From 2.00pm on Easter Saturday until 5.00pm on Easter Monday in even numbered years;
8.2From 8.30am on Good Friday until 2.00pm on Easter Saturday in odd numbered years;
8.3From 2.30pm Christmas Eve until 2.30pm Christmas Day in even numbered years;
8.4From 2.30pm Christmas Day until 2.30pm Boxing Day in odd numbered years;
8.5For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the mother’s care pursuant to these Orders, and failing agreement from after kindergarten/school until 6.00pm on kindergarten/school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
8.6From 10.00am until 6.00pm on Mother’s Day in each year that the child is not ordinarily in the mother’s care pursuant to these Orders;
Communication
9.During kindergarten/school term time the child shall communicate via video call with the father as agreed between the parents and failing agreement on every Sunday and every Wednesday between 6.00pm and 6.30pm.
10.All parenting communication between the parties must be through the parenting app either Divvito or any other parenting app as agreed in writing within 24 hours of these Orders.
Changeovers
11.Changeover to occur with a mutually agreed party, failing agreement, either one of X’s paternal grandparents, to collect and return the child from a mutually agreed location or failing agreement, Suburb B McDonald’s during kindergarten/school days and otherwise from Church in Suburb C.
12.Both parents shall ensure that during changeovers:
(a)Neither parent will enter the other’s home;
(b)Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
(c)Each parent will conduct themselves in a child focussed manner;
(d)Each parent will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
(e)Neither parent will discuss issues of any controversy between them.
Restraints
13.Without admissions, when the child is in their respective care, each parent is restrained from:
13.1Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
13.2Consuming any prescription medication other than as prescribed;
13.3Consuming any illicit substance;
13.4Physically disciplining the child or permitting any other person to do so;
13.5Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person
13.6Denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
14.The father must continue to engage with his treating mental health practitioners being a psychologist every 6 weeks and a psychiatrist every 4 months and comply with any recommendations for his mental health.
15.The mother is to cease co-sleeping with the child except to the extent of assisting the child when distressed until the child has fallen asleep and is to be returned to the child's bed.
16.The parties must consult at least 6 weeks prior to the proposed overseas travel and identify at least 4 weeks before the itinerary of the proposed travel, paid return flight tickets, means of communication for the parent not travelling with the child whilst overseas, and proposed makeup time in respect of that travel.
17.The passport of the child when not being used by the father should be kept in the possession of the mother.
Trial Orders
18.The matter is fixed for a Final Parenting hearing commencing at 10:00am on 13 May 2025 continuing on until 15 May 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
19.The applicant is directed to file and serve a consolidated trial affidavit on or before 19 March 2025.
20.The respondent is directed to file and serve a consolidated trial affidavit on or before 16 April 2025
21.The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 28 April 2025.
22.The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 2 May 2025
23.The ICL may file a case outline on or before 7 May 2025.
24.Leave is granted to the parties, including the ICL to provide any tender bundle including with exhibits with affidavits material relied upon via email or USB seven (7) days prior the hearing.
25.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
26.Leave is granted to the parties, including the ICL, to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.
27.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
THE COURT NOTES THAT:
A.The mother will keep the father advised of the child’s progress including but not limited to matters of the child’s wellbeing, health, education or extracurricular activities;
B.The father may communicate with the mother in relation any concerns or suggestions he wishes to make for the progress and wellbeing of the child;
C.The mother will give due regard to such matters as are raised by the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These parenting proceedings were commenced on 19 October 2020. On 6 April 2024, a parenting report was released making recommendations which the court will summarise shortly. That family report was released on 7 May 2024 to the parties. There had been three further directions before the Court, with the parties having the benefit of that family report, and a further mediation arranged by the Independent Children’s Lawyer (“ICL”) unsuccessfully last week. The matter when it was listed for directions this morning was one where the Court asked whether or not, consistent with the family report, the father's time had progressed to overnight time and the Court was informed it has not.
The Court cannot hear the matter until 13 to 15 May 2025. It is in those circumstances that the Court raised that it was appropriate for the parties to exchange interim parenting orders as the Court proposed to consider whether or not to make a variation to the parenting orders that have been in place since 24 May 2022 that provide unsupervised access for the applicant father (“the father”) to the child, but no overnight time. The Court received competing sets of orders, two from the ICL, and one from the father and one from the respondent mother (“the mother”).
The child, X (“the child”), turns five this year having been born in 2019. The family report, which the Court has treated as being marked as an exhibit and is in evidence, identified the interviews with the parents in competing views in respect of domestic violence, and it is apparent that the child has a real and loving relationship with the father with whom she is not spending any overnight time as well as with the paternal grandmother.
The recommendation in the family report was for the mother to have sole parental responsibility, for the child to live with the mother and for the child to begin spending overnight time with the father starting one night per fortnight and transitioning to two nights per fortnight until the child reached an arrangement where she spends a three-night block per fortnight with the father. It was also identified in the family report that it was possible this transition could be completed in a six-month time frame. The family report also recommended that the father continue engaging with mental health professionals. Notwithstanding that the report was released on 7 May 2024, almost six months has passed where there has been no progression to overnight time at all with the father.
It is further apparent from the family report that the mother was co-sleeping with the child. The Court was informed today that the child does have a separate bed, but continues to co-sleep with the mother because the child is distressed sleeping on her own. The Court is of the view that the child co-sleeping with the parent at this age of five, is one that is not in the best interests of the developmental, psychological and emotional needs of the child. The child needs to have her own bed, and the Court does propose to make an order addressing that issue.
The Court identified for the parties the potential orders that the Court might make having received the competing orders from the parties. In the family report, there was a reference to an ADVO made in 2020 expiring in late 2023.
The mother's affidavit of 27 November 2020 identified that the relationship was one where the parties married in 2017 and separated on 3 September 2020. That affidavit annexed what was said to be three Apprehended Domestic Violence Order's (“ADVO”) according to the notice of risk filed by the mother. It is apparent that there was an ADVO put in place around the time of separation and an issue of breach in the same month which came before the Court, and orders were made for the protection of the mother and the child with conditions identified in that ADVO. There has been no further ADVO. According, to the views of the child expressed through the father, the child is keen to commence overnight time. The mother, in the family report, suggested there had been no such communications to her.
The court has taken into account the best interest of the child as identified in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) which is as follows:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
That the Court has also taken into account the principles as discussed in Kapoor & Kapoor [2024] FedCFamC2F 605 in identifying parenting principles.
The Court has also taken into account the objects in s 60B of the Act and the five principles in s 69ZN of the Act. The court has also taken into account s 95 of the Act in relation to the overarching purpose. In relation to the arrangements that would best promote the safety of the child, the Court is alive to the allegations in the notice of risk and the family report of past alleged violence, the issuing of the ADVO and breach, and its expiry in late 2023.
The Court has also taken into account and acknowledged the problem by the father of some drug use which he has taken steps to overcome and obtained negative testings, other than a test which identified prescription medication used for pain. The Court has also taken into account that the father does have mental health issues that he is managing, and he is regularly seeing a psychiatrist and a psychologist.
The Court is satisfied that advancing the current parenting relationship from that identified on 24 May 2022 in light of the family report to progress to overnight time can be done as an arrangement that would promote the safety of the child with the Court making an order in relation to the need for ongoing mental health engagement by the father with his mental health professionals, and the Court proposes to make such an order. It was suggested on behalf of the mother that there should be further drug testing required.
Given that the family report identified in May 2024 that there had been negative tests and there has been no apparent request for up-to-date testing, the Court sees no reason why it is necessary to promote the safety of the child in this case for there to be an updated hair follicle test. The Court is of the view that such a step would simply further procrastinate the overnight time which appears to have been what has been occurring, given that the matter since the making of those orders and the release of the family report has been more than three times before this Court.
Since then, the Court is of the view that such a step would be satisfied by taking into account the whole of the general considerations in s 60CC(2) of the Act, that there is no need to make an order for ongoing drug testing in relation to the father before time commences, nor has the ICL asked for any such order. In relation to views expressed by the child in progressing time, the Court gives weight, albeit slight, to the view identified by the father that the child has been expressing a desire to spend overnight time with him, which would be both natural and understandable. The suggestion of no such communication to the mother is not one that the Court at this stage has to resolve, but is of the view that the child's views, to the extent relevant, support progressing to overnight time. The Court is firmly of the view that at the age now of practically five, the child’s developmental, psychological, emotional, and cultural needs, given the two different cultural backgrounds identified in the family report, are best advanced by progressing to overnight time with the father.
The Court is satisfied that each parent has the capacity to exercise parental responsibility for the child. The Court is alive to where each parent has been living and who lives with each parent as identified in the family report. The Court is satisfied that the proposed orders are consistent with the father’s parental capacity and provide for the child's developmental, psychological, emotional and cultural needs in advancing to overnight time with the father.
In relation to the benefit to the child of being able to have a relationship with the child's parents, and other significant people where it is safe to do so, the Court is satisfied it is safe to do so in relation to the increased overnight time and that there is a close bond between the child and the paternal grandmother which will be of benefit to the child in progressing to overnight time where the child has a separate bed. It may well be that the child will initially require some comforting by both her paternal grandmother and the father as she gets used to sleeping in a bed on her own, but the Court is satisfied that the father has the capacity to do so and that it is in the best interest of the child to advance to that overnight time that on one view should have occurred in May 2024.
The Court has taken into account the notices of risk and the alleged history of family violence both in the mother's affidavit and also as identified in the family report. There is no current ADVO that applies in relation to the child or a member of the child's family. The family report writer identified the mother's concerns in relation to how the child would manage being away from her overnight and suggested that it was the child informing her that the father had asked her whether she can stay overnight. The family report identified that the mother acknowledged that the child would benefit from extended time with the father but continues to hold a concern about the child's safety. The mother identified the child coming to her for extra attention when she is feeling unwell and acknowledge that there is now unsupervised time being spent by the child with the father. The father expressly referred to the child often asking about when she can sleep over and enjoying having her own room in his house. There has obviously been communication and trust issues between the parties.
The family report identifies the competing positions in relation to alleged incidents giving rise to the breakdown of the relationship and the ADVO's to which the court has referred. The family report writer identified having no concern in relation to the child when in the mother's care and that the father identified he has a good parenting capacity and can keep the child safe and meet her needs.
The mother acknowledged that the father can meet the child's basic needs and would not intentionally harm the child but felt uneasy about overnight time. The mother identified that the child might emotionally struggle when it is time to put her to sleep and identified that she was co-sleeping with the child at the time of that family report.
The family report identified that the father does not now consume alcohol and does not use drugs. The Court proposes to make a restraint in that regard in any event consistent with that recommended by the ICL, which the Court is satisfied will promote the safety of the child and is in the child's best interests. The family report writer identified the result of drug tests in paragraph 41 to which the Court has already referred. The family report referred to the father's diagnosis of anxiety, depression and a mental health condition, which was compromised by drug use.
The family report identified that the child does not have additional needs. In relation to overnight time, the family report records the mother as acknowledging that the child should begin overnight time with the father, and seeming to have some worries about how the child will emotionally struggle due to their relationship. There was also identified in the family report the benefit to the child of being able to travel overseas. The mother in the family report was said to be supportive of the child spending overnight time with the father and was of the belief that the transition, beginning with one overnight when the child turns five years of age and increasing to two nights, would be beneficial for the child. The orders being made by the Court today will facilitate that overnight time to commence when the child turns five this year and will increase to two nights on 6 February 2025 after a period of time to allow the child to adjust to that initial overnight time. That time, on one view, as the Court has said, should have commenced back in May 2024. The family report writer also recorded that the mother was of the view that the child would be ready for alternate weekend arrangements Friday to Monday once she starts school. The observations of the child with the parents were identified in the family report and the Court has already summarised those. The Court is satisfied that it is in the best interest of the child to vacate all interim parenting orders and to put in place an interim regime pending the Court's ability to hear the matter at a final parenting hearing on 13 May 2025.
For these reasons the Court makes the above orders.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 6 December 2024
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