Rahal & Rahal
[2022] FedCFamC1F 605
Federal Circuit and Family Court of Australia
(DIVISION 1)
Rahal & Rahal [2022] FedCFamC1F 605
File number(s): SYC 7908 of 2020 Judgment of: AUSTIN J Date of judgment: 9 August 2022 Catchwords: FAMILY LAW – PARENTING – Practice and procedure – Review of decision – Where the father seeks review of orders made by a Senior Judicial Registrar concerning the time and conditions under which the children spend with him – Where the mother alleges the father poses a material risk of harm to the children – Where the risk posed by the father is not unacceptably high – Family violence – Where the evidence does not establish the children need protection from harm caused by subjection or exposure to family violence – Where the children will derive benefit from maintaining meaningful relationships with both parties – Where the parties agree the children should continue to live with the mother – Ordered the children live with the mother and spend unsupervised time with the father conditional upon him returning negative drug tests
FAMILY LAW – PARENTING – Parental Responsibility – Where it is not appropriate to apply the presumption of equal shared parental responsibility in this interlocutory dispute – Where the parties retain parental responsibility pursuant to s 61CLegislation: Evidence Act 1995 (Cth) s 69ZT
Family Law Act 1975 (Cth) Pts VII, VIII, ss 4AB, 60B, 60CA, 60CC, 61C, 61D, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC
Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Phillips & Hansford (2019) FLC 93-917
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 9 August 2022 Place: Sydney Counsel for the Applicant: Mr Looney QC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Dickson QC Solicitor for the Respondent: Broun Abrahams Burreket Counsel for the Independent Children’s Lawyer: Mr Blank Solicitor for the Independent Children’s Lawyer: Christina Lam & Associates ORDERS
SYC 7908 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAHAL
Applicant
AND: MR RAHAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
order made by:
AUSTIN J
DATE OF ORDER:
9 August 2022
THE COURT ORDERS THAT:
1.All former parenting orders and injunctions concerning the following children are discharged:
a.X, born in 2011; and
b.Y, born in 2012.
2.The children shall live with the mother.
3.Subject to the father’s compliance with Order 4 hereof, the parties shall take all reasonable steps to ensure the children spend time with the father:
a.During school terms:
i.Each alternate Wednesday from the conclusion of school until 7:00 pm, commencing on Wednesday, 10 August 2022.
ii.Each alternate weekend from 9:00 am Saturday until the commencement of school on Monday morning (or Tuesday morning if a long weekend), commencing on Saturday, 13 August 2022.
b.During the Spring, Autumn and Winter school holidays for five contiguous days, commencing at 12:00 noon on the first Saturday of the holidays.
c.During the Summer school holidays:
i.For five contiguous days commencing at 9:00 am on 26 December; and
ii. For five contiguous days commencing at 9:00 am on 14 January.
4.The father shall submit to hair follicle testing for the detection of illegal and/or unprescribed substances in his body upon the following conditions:
a.He will attend the scientific agency as directed by the Independent Children’s Lawyer, not more frequently than once per calendar month;
b.The testing shall test for the presence of opiates, amphetamines, methamphetamines, benzodiazepines, cocaine and cannabis;
c.The cost of the collection and testing of the hair samples is to be borne by the father; and
d.The father shall serve upon the Independent Children’s Lawyer and the mother’s lawyers copies of the test results forthwith upon provision of those results to him.
5.If the father fails to submit to such testing or a test result discloses the presence of an illegal or unprescribed substance in his body, then the time spent by the children with the father pursuant to Order 3 hereof is suspended and in lieu thereof the parties shall take all reasonable steps to ensure that the children spend time with the father each Sunday between 3:00 pm and 5:00 pm under the supervision of the paternal grandmother, subject to the paternal grandmother filing and serving an affidavit containing her undertaking in the following terms:
I am willing and able to supervise the time spent by the children with the father under the orders of the Federal Circuit and Family Court of Australia (Division 1).
I have read the information pamphlet entitled “Deciding whether you should help with Supervision” published online by NSW Legal Aid.
I fully understand the duties and responsibilities of a supervisor and I am prepared to and shall act accordingly.
I understand that any breach of my undertaking may be regarded as contempt of the Court, which could render me liable to prosecution and punishment.
6.For the purpose of implementing these orders, the parties shall respectively ensure the children’s:
a.collection from school whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
b.return to school whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise
c.at Handover Location B.
7.The parties shall take all reasonable steps to ensure that the children communicate with the father by telephone at 6:00 pm on those Wednesdays and Sundays when the children are not otherwise spending time with him.
8.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
9.Otherwise:
a.the Further Amended Application in a Proceeding filed on 14 June 2022 is dismissed;
b.the Amended Response to an Application in a Proceeding filed on 23 May 2022 is dismissed;
c.the Application for Review filed on 19 July 2022 is dismissed; and
d.any and all other outstanding applications for interim relief concerning the children are dismissed.
NOTATION
A.The parties each retain parental responsibility for the children pursuant to operation of s 61C of the Family Law Act.
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 the pseudonym Rahal & Rahal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The parties to these proceedings married in 2009, separated in February 2020 and divorced in March 2022. They have two children born in 2011 and 2012, who are now aged 11 and 10 years.
Proceedings were commenced by the mother in November 2020, seeking orders in respect of the children and financial relief under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively.
Since then, substantive interim orders concerning the children and the parties’ property have been made on no less than five occasions in December 2020, January 2021, March 2022, April 2022 and June 2022, so the dispute is using a disproportionate share of the Court’s resources, aside from draining their own resources.
The orders last made by the Senior Judicial Registrar on 30 June 2022 are now the subject of a review application filed by the father on 19 July 2022. The reviewed orders relate to the time the children should spend with the father and the conditions under which it may occur.
Being a review hearing, the parties’ antecedent applications for interim parenting orders are heard afresh.
Proposals
The mother sought the orders set out in her Amended Application in a Proceeding filed on 14 June 2022. In effect, she proposes that the children spend no more than a few hours at any one time with the father, subject to him continually proving his sobriety and abstinence from illicit drug use, but even then, still subject to professional supervision.
The father sought the orders set out in his Amended Response to an Application in a Proceeding filed on 23 May 2022, which were effectively replicated in the orders proposed in his Application for Review filed on 19 July 2022. In effect, he proposes that the children spend substantial and significant time with him, being:
(a)during school terms, each alternate Wednesday evening and each alternate weekend from Friday afternoon to Monday morning (which is the reinstatement and expansion of the regime ordered in January 2021);
(b)portions of school holidays; and
(c)other special occasions.
The father objects to any supervision, either by a professional agency or by a family member. He does, however, agree to submit to urinalysis at the random direction of the Independent Children’s Lawyer (“the ICL”) at intervals of not less than two months, though in submissions he agreed to instead submit to monthly hair follicle testing.
The ICL sought the orders set out in the Case Outline document filed prior to the hearing before the Senior Judicial Registrar. The ICL proposed the gradual escalation of the time spent by the children with the father, beginning with three hours each week professionally supervised and culminating months later in a regime which is generally consistent with that proposed by the father. Eventually, the ICL expects the time will be unsupervised but, following the suspension of professional supervision, proposes supervision by the paternal grandmother as a transitional arrangement.
The ICL proposes that all time spent by the children with the father is conditional upon him submitting to CDT testing conducted every two to three weeks (for alcohol misuse) and hair follicle testing once (for illicit drug use). In default of his submission to testing or consequent upon a positive test, the regime defaults back to three hours each week under professional supervision.
The ICL sought a raft of other procedural orders, but those aspects of the proceedings can await directions by a registrar in due course. They were not addressed in the submissions in any event.
Evidence
The mother relied upon:
(a)her affidavit filed on 14 June 2022 (with annexures);
(b)her affidavit filed on 5 August 2022 (excluding paragraphs 4 to 11 inclusive and excluding all annexures); and
(c)five exhibits (being Exhibits M1 to M5).
The mother had sought orders enabling her to take the children overseas in December 2022. The Senior Judicial Registrar made no order to that effect and the mother did not seek to review any of the Senior Judicial Registrar’s orders. That issue, for present purposes, is therefore resolved and the father’s objection to the admissibility of paragraphs 4 to 11 of the mother’s second affidavit was upheld.
The father also objected to the admissibility of paragraphs 24 to 38 of the mother’s second affidavit, but the evidence was admitted over the objection. The evidence was admissible because relevant and did not need to survive any admissibility thresholds imposed by the Evidence Act 1995 (Cth), by reason of application of s 69ZT(1) of the Act, though the weight attributed to it is an entirely different question.
The father relied upon:
(a)his affidavit filed on 19 July 2022 (with annexures);
(b)the affidavit of the paternal grandmother filed on 23 May 2022; and
(c)two exhibits (being Exhibits F1 and F2).
The ICL did not separately tender any evidence.
Legal Principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Those principles to which I have just adverted apply just as much in interim contests as in final proceedings.
In Goode & Goode (2006) FLC 93-286 the Full Court said:
68.… [T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Further, a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to proper determination at trial. Not every s 60CC factor need be discussed in that process (Banks & Banks (2015) FLC 93-637 at [47]–[50]). The individual factors within s 60CC of the Act need not be recited like a mantra in every case. Only those factors which are relevant need be addressed (Phillips & Hansford (2019) FLC 93-917 at [43]).
Best Interests: Primary Considerations
Section 60CC(2)(a)
It was not in dispute that the children have meaningful relationships with both parties and they will derive benefit from maintaining the quality of those relationships.
The father recognised the importance of the children’s relationships with the mother, as he does not seek to disturb their primary residence with her.
The mother, however, considers the children’s benefit from meaningful relationships with the father must defer to their safety. It is her case that they are at risk of harm with the father and so s 60CC(2A) of the Act is squarely engaged.
It is therefore necessary to closely examine the evidence which is said to establish the father poses a material risk of harm to the children, thereby engaging s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
It was submitted by the mother:
7.The need to protect the children from being subjected to or exposed to abuse, neglect (as a result of factors including the father’s drug use) and family violence outweigh the need to optimize a meaningful relationship with both parents.
(Mother’s Case Outline filed 8 August 2022)
However, I do not accept the evidence of such risk is as compelling as the mother contends.
Abuse
There was no evidence of the children being subjected or exposed to any form of abuse by the father. To that extent, the above submission was hyperbole.
Neglect
The only evidence of the prospect of the children being neglected by the father is that he is prone to drink alcohol or ingest illicit drugs and thereby deprive himself of the capacity to properly care for and supervise them when they visit.
There is clear evidence of the father’s past illicit drug use, but it falls short of demonstrating the ongoing uncontained addiction or temptation which the mother apparently fears.
Throughout 2021, the father returned negative drug test results on random tests for nearly a year. In late December 2021, the father returned a positive test for cocaine use from a hair follicle test. The mother became aware of the result in March 2022, and she immediately suspended compliance with the orders made in January 2021.
Later in 2022, the father returned a second positive test for prior cocaine use in January 2022. When that result was revealed, the father checked himself into a residential drug rehabilitation centre for about a month. The father has since been diagnosed with “stimulant use disorder”, but his treatment providers accept his assertion that he is currently abstinent (Exhibit M1).
In April 2022, the Court suspended the orders made in January 2021 providing for the children to spend time with the father, pending the hearing of the mother’s application to discharge those orders. It was that application, opposed by the father, which was heard by the Senior Judicial Registrar in June 2022.
Since the two positive cocaine tests were formally recorded in December 2021 and March 2022, the father has returned numerous negative tests in the period between April and June 2022 – being three hair follicle tests and four urinalysis tests. The obvious inference to draw is that the father realised his folly and, with the aid of the intensive rehabilitation, has abstained from the use of illicit drugs.
The mother’s apprehension about the father’s relapse are entirely understandable, but that does not mean the protective steps she proposes are either proportionate or in the children’s best interests.
The mother said this in her first affidavit:
102.… I believe that the children’s time with [the father] should be supervised until he produces a series of negative test results.
(Mother’s affidavit filed 14 June 2022)
The evidence demonstrates that he has now done so.
On the available evidence, there is some risk the father will drink alcohol or consume drugs to the extent that he is so stupefied he cannot care for and supervise the children, but the risk is a long way short of being unacceptably high.
The risk, such that it is, can be contained by shortening the periods during which the children formerly spent time with the father. The shorter the periods, the less inclined the father will be to divert his attention from the children to individual recreational pursuits.
The mother’s assertion of the father’s “mental health issues” presenting some form of ill-defined problem is no more than her uncorroborated inexpert opinion, which carries no probative weight. Similarly, her assertion that his mental ill health impairs his parenting capacity is given no weight as it lacks any valid evidentiary foundation.
Family Violence
In respect of family violence, the mother submitted:
12.… [T]he father has … often been verbally and physically abusive towards the mother in the presence of the children.
(Mother’s case outline filed 8 August 2022)
When analysed, the mother’s allegations of family violence amount to the father’s denigration of her, him physically forcing her out of bed, and pressuring her to engage in sexual intercourse. All of those allegations are at least capable of amounting to family violence within its very wide definition (s 4AB), but the allegations are essentially refuted by the father.
No factual findings are possible on untested evidence in an interlocutory hearing, but the Court must still react to tangible risks revealed by the evidence. Dealing with the mother’s evidence in context, her allegations of family violence all relate to incidents prior to the parties’ separation in February 2020. There is no evidence adduced of any family violence between the parties since their separation. With more than two years having now passed, its recurrence seems unlikely. The evidence does not establish that the children need protection from their subjection or exposure to family violence.
Best Interests: Additional Considerations
Few of the additional considerations prescribed by s 60CC(3) of the Act are relevant. I will address only those which are.
The mother thinks the children are happy with the status quo (which is their estrangement from the father for the last five months, save for a brief supervised visit on 7 August 2022) and she implies her concern about how they may react adversely to any change (s 60CC(3)(d)). Her concern is not persuasive. The children will likely be delighted to resume their interaction with the father on the available evidence (Exhibit F2).
There is no evidence to reasonably found the mother’s concerns about the father’s alleged impaired parenting capacity, other than has already been discussed under s 60CC(2)(b) (ss 60CC(3)(f) and 60CC(3)(i)).
Parental Responsibility
The law requires the Court to consider the allocation of parental responsibility whenever a parenting order is sought (s 61DA; Goode & Goode). This imperative was not addressed by the parties or the ICL.
No interim order for parental responsibility was made in either December 2020 or in January 2021. No interim order allocating parental responsibility is presently sought by the mother, the father or the ICL. It must follow that the parties are content to retain parental responsibility for the children, as is settled upon them according to law (ss 61C and 61D).
Given the factual dispute over the historical occurrence of family violence, which cannot be resolved at this interlocutory stage, I intend to apply s 61DA(3) of the Act, which provides as follows:
Presumption of equal shared parental responsibility when making parenting orders
(3)When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
It would not be appropriate to apply the presumption of equal shared parental responsibility at this interlocutory hearing in view of the live contest over the occurrence of family violence and the absence of any submission by the parties about their inability to manage “major long-term issues” in respect of the children as the law requires of them (s 65DAC).
Residence and time
There was no dispute the children should live with the mother.
The controversy is over the time the children spend with the father. With no order made for the parties to have equal shared parental responsibility, s 65DAA is not engaged and so there is no need to expressly consider either equal time or substantial and significant time.
The orders made in January 2021 provided for the children to spend substantial and significant time with the father. On the available evidence, that regime worked reasonably well. It was only the father’s illicit drug use in late 2021 and early 2022 that motivated the mother to change the arrangements.
Because s 60CC(2)(b) is not presently a pivotal consideration on the facts emerging from the evidence, s 60CC(2)(a) must assume its proper important place, as was urged by the ICL. Exhibit F2, which is a supervised contact report for a visit between the children and the father as recently as last weekend, shows the warmth of their relationships. Since the children will derive benefit from maintaining meaningful relationships with the father, there is no time to waste in restoring the regularity of their interaction.
I am unpersuaded of any need for the graduation of the children’s re-introduction to the father. They will likely benefit from, and adjust easily to, an immediate restoration of a regime which they formerly enjoyed until interrupted in March 2022.
To reduce the scope for the father’s relapse to illicit drug use while caring for the children, their visits with him on alternate weekends will begin on Saturday morning and end upon their return to school on Monday morning. Alternative Wednesday evening visits will resume. In school holidays, the children will spend five contiguous days with the father.
There is no need for formal supervision, either by a professional service or by a family member. The father presently lives with the paternal grandparents, so the children and the father will often informally fall under their observation. I reject any express or implied submission that the paternal grandmother would decline to act in the children’s best interests in order to cover for her son’s moral obliquity.
However, the time spent by the children with the father will be conditional upon him continuing to return negative drug tests, which he must perform randomly upon demand by the ICL. If he fails to do so, the orders I have outlined will be suspended and, instead, the children will only spend time with him for two hours each Sunday afternoon under the supervision of the paternal grandmother. There is no demonstrated need for CDT testing for alcohol misuse.
The father returned negative tests to hair follicle tests in April 2022, May 2022 and June 2022. The results from another test in July 2022 are still pending. Hair follicle testing is longitudinal and a more reliable indicator of illicit drug use than urinalysis, as urine testing is so transient. However, hair follicle testing is much more expensive. The orders will provide for the father to submit to hair follicle testing at the ICL’s random demand, but not more frequently than once per calendar month. The tests will be undertaken at the father’s expense.
I decline to make any injunction which purports to restrain the parties from alcohol misuse or illicit drug use. The former is not prescriptive in any enforceable way and the latter is illegal in any event.
Changeovers will occur either at the children’s school or at Handover Location B. The latter was the venue for exchanges of the children under the orders made in December 2020, about which there has apparently been no complaint.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 September 2022
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