FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rabia & Birthe [2024] FedCFamC1F 278
File number(s): SYC 2006 of 2021 Judgment of: SMITH J Date of judgment: 26 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – application by the father for review – further application by the father seeking leave to re-open the proceedings for the purpose of providing updated CDT tests – mother’s subsequent application to re-open the hearing to adduce further evidence – father seeking to spend overnight time with the child – in circumstances where father has historically failed to comply with CDT testing orders – father relied on expert opinions that there is no evidence of ongoing alcohol misuse and overnight time with the child should commence – discussion as to the weight to be given to expert opinion – finding that the risk of the father’s alcohol abuse and possible disregard for court orders cannot be ameliorated by CDT testing or any other safeguard – mother’s application to reduce time not in child’s best interests - current interim orders to stand. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 5, ss 60CA, 64B, 65AA 65D Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Hall and Hall (1979) FLC 90-713
HG v R (1999) 197 CLR 414; [1999] HCA 2
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorskiv Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Division: Division 1 First Instance Number of paragraphs: 120 Date of hearing: 8 September 2023, 17 January 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Sansom SC Solicitor for the Applicant: ATW Family Law Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Santo Family Lawyers Solicitor Advocate for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 2006 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RABIA
Applicant
AND: MS BIRTHE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
26 APRIL 2024
THE COURT ORDERS THAT:
1.Dismiss all extant Interim Applications.
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,…
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- Rabia & Birthe [2024] FedCFamC1F 278
- Case
- [2024] FedCFamC1F 278
- Decision Date
CaseChat Overview and Summary
The case of Rabia & Birthe involves a highly contentious family law dispute between the father, Mr Rabia, and the mother, Ms Birthe. The primary issue at hand is the father's application for an increase in his overnight time with their child, as well as other related interim orders. The matter has been heard by the Family Court of Australia, specifically Division 1. The legal issues before the court included the weight to be given to expert opinions on the father’s alcohol consumption, the best interests of the child, and the effectiveness of various testing and supervision measures in ensuring the child's safety.
The court was required to decide whether the father should be granted increased unsupervised time with the child, considering his history of failing to comply with previous testing orders and the mother's concerns about his alcohol use. The court also needed to evaluate the relevance and reliability of expert opinions, such as those from Dr C, and balance these with other evidence presented. Furthermore, the court had to weigh the father’s arguments for more time against the mother's concerns about the child's safety and wellbeing.
The court concluded that despite the expert opinions suggesting the father's alcohol consumption posed no ongoing risk, the risk of his alcohol abuse and possible disregard for court orders could not be sufficiently mitigated by any testing or supervision measures. The court emphasised that while expert opinions carry weight, they are not determinative and must be balanced against the totality of evidence and the court's own assessment of the child's best interests. The court found that the current interim orders, which included regular testing and supervised visits, were in the child's best interests and dismissed the father’s applications for increased unsupervised time and other interim orders.
In light of the findings, the court dismissed all extant interim applications and upheld the existing interim orders, ensuring that the child’s safety and wellbeing remain paramount. This decision reflects the court's commitment to carefully consider all evidence and expert opinions, while ultimately prioritising the child's best interests in making its orders.
The court was required to decide whether the father should be granted increased unsupervised time with the child, considering his history of failing to comply with previous testing orders and the mother's concerns about his alcohol use. The court also needed to evaluate the relevance and reliability of expert opinions, such as those from Dr C, and balance these with other evidence presented. Furthermore, the court had to weigh the father’s arguments for more time against the mother's concerns about the child's safety and wellbeing.
The court concluded that despite the expert opinions suggesting the father's alcohol consumption posed no ongoing risk, the risk of his alcohol abuse and possible disregard for court orders could not be sufficiently mitigated by any testing or supervision measures. The court emphasised that while expert opinions carry weight, they are not determinative and must be balanced against the totality of evidence and the court's own assessment of the child's best interests. The court found that the current interim orders, which included regular testing and supervised visits, were in the child's best interests and dismissed the father’s applications for increased unsupervised time and other interim orders.
In light of the findings, the court dismissed all extant interim applications and upheld the existing interim orders, ensuring that the child’s safety and wellbeing remain paramount. This decision reflects the court's commitment to carefully consider all evidence and expert opinions, while ultimately prioritising the child's best interests in making its orders.
Orders
Orders of the court
SYC 2006 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR RABIA
Applicant
AND:
MS BIRTHE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
26 APRIL 2024
THE COURT ORDERS THAT:
1. Dismiss all extant Interim Applications.
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
On either case this is a high conflict relationship.BACKGROUND On 20 April 2021, the parties entered interim consent orders providing for the child, to live with the mother and spend time with the father from: 3.00 pm to 6.30 pm each Monday; 11.00 am to 5.30 pm each Wednesday; and from 8.00 am to 5.30 pm each Saturday. The father was ordered to undergo random Chain of Custody “CDT” testing at the mother’s request, but not on more than three occasions over six months from the date of the orders. On 10 June 2021, following a contested interim hearing, further interim orders were made decreasing the child’s time with the father to 9.00 am to 4.00 pm each Wednesday, and, from 9.00 am to 4.00 pm each Saturday. The father was ordered to undergo CDT testing each month and to provide the results to the mother upon receipt. In the event the father failed to do so, or returned a reading over 1.7, then his time was to be supervised by the paternal grandparents subject to an undertaking, or by a professional contact supervision centre. This may have been influenced by the father’s first CDT test, collected 3 May 2021, showing a result of 2.3%.[1][1] Exhibit 4. On 2 December 2021, following a second contested interim hearing, interim orders were made requiring the father’s time with the child be supervised until he returned a CDT reading of less than 1.7 or a PETH test showing no alcohol detected. The orders requiring the father to undertake CDT testing were discharged and replaced with orders for liver function testing and PETH testing every 30 days. The father filed an Application in a Proceeding on 19 January 2022 seeking that Orders 3 and 5 of the December 2021 interim orders (relating to the PETH and liver function testing and the mobile personal breathalyser unit) be discharged and seeking both overnight time and FaceTime communication with the child. The parties participated in a Court-based Dispute Resolution Conference on 1 and 3 February 2022, where the parties entered into further interim consent orders, providing for the child to spend time with the father on six occasions: on Saturdays from 12.00 pm until 3.00 pm; Wednesdays from 3.30pm until 5.30pm. Following six consecutive visits, the child was to spend time with the father on Saturdays and Wednesdays from 9.00 am until 4.00 pm. The father was required to use the mobile personal breathalyser unit between 7.00 pm and 10.00 pm the night before, and one hour before spending time with the child. The remaining issues in dispute were listed for interim hearing on 4 March 2022, where the father was ordered to undertake CDT testing every 30 days, and the Expert, Mr B was appointed as a single expert to prepare a report on the father’s alleged alcohol consumption. The matter was transferred to Division 1 on 21 June 2022. The father filed a further Application in a Proceeding on 25 July 2022. On 24 October 2022, a Senior Judicial Registrar discharged the order requiring the father to use the breathalyser unit the night prior to spending time with the child, provided for facetime communication when the father is overseas each Wednesday from 5.30 pm to 5.45 pm and each Saturday from 9.00 am to 9.15 am, appointed Dr C as the Single Expert, and dismissed all outstanding interim applications, which is the subject of the current review application.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The ICL supported the father’s application for increase in time. DISCUSSION AND DECISION Weight to be given to Dr C The father’s counsel strongly urged the Court to accept Dr C’s recommendation for overnight time, see Denham & Newsham (2021) FLC 94-043. While in Denham & Newsham the Full Court indicated that considerable weight should be given to an expert’s opinion, and that departure from it would require careful consideration, Denham & Newsham does not depart from the statement of the Full Court in Hall and Hall (1979) FLC 90-713 at 78,820 that:… There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the Court or that the Judge is abdicating his responsibilities... The principle articulated in Hall and Hall is an application of the general law of expert evidence. The Court is not bound by opinion evidence. That applies even to the opinion evidence of an uncontradicted expert witness at Trial.[58] [58] See for example HG v R (1999) 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. While it is appropriate to give due consideration and weight to an expert’s opinion evidence, it is but one element of the evidence before the Court, to be considered, weighed and balanced with the totality of the evidence. Ultimately the Court remains responsible for forming its own view, taking into account all of the evidence before it, and for the discharge of the Court’s judicial responsibility to make orders in the best interests of a child. Dr C is a highly respected expert in this field, and her carefully reasoned report is clearly relevant evidence which has received my careful consideration as part of weighing all of the material before me, within the structures that apply to fact finding on an interim application.Principles The parties seek parenting orders as defined in Part VII Division 5, and see s 64B and s 65D. The paramount consideration is X’s best interests, see s 60CA and s 65AA. The twin pillars are, first, the need to protect X from harm and second, the benefit of a meaningful relationship.[59] [59] Mazorskiv Albright [2007] FamCA 520 Brown J at [3]. The issues between the parties are starkly defined,[60] and there are many hotly contested factual issues. Whilst I cannot make any findings of fact,[61] the interim process requires me to carefully consider and weigh the evidence and “merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts”.[62] [60] See Banks & Banks [2015] FamCAFC 36 at [48]-[50].[61] Goode & Goode [2006] FamCA 1346 from [68] and also at [81]-[82].[62] Eaby & Speelman (2015) FLC 93-654 at [18]. That is particularly so when assessing risk on an interim hearing, where questions of degree often come into the weighing of the probabilities of competing claims and the assessment of the likely impact on children of acting on or rejecting a controversial assertion, and, where consequently a conservative approach and one likely to avoid harm is often adopted.[63][63] See Marvel & Marvel (2010) 43 Fam LR 348 at [120]; SS v AH [2010] FamCAFC 13 at [88]; and Deiter & Deiter [2011] FamCAFC 82 at [61].Findings
Ratio Decidendi
Legal Principle Established
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