Toloni & Kasabian
[2024] FedCFamC1F 187
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toloni & Kasabian [2024] FedCFamC1F 187
File number: SYC 2181 of 2020 Judgment of: CAMPTON J Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PARENTING – COSTS – Where the parties resolved most of the issues in dispute at trial – Where three issues remain to be determined – Where both the parents and the Independent Children’s Lawyer (“ICL”) agree that the mother should communicate with the children by electronic means, however disagree as to how frequently it is to occur and to the scaffold facilitating it – Whether the mother is to bear the costs of the supervision agency or whether the cost is to be borne by the parties equally – Where the ICL makes an application for costs – Orders made for communication between the mother and the children each week, and for the parents to bear the cost of the supervision agency equally – ICL’s application for costs dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, and 117 Cases cited: De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 18 March 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Lo Schiavo Solicitor for the Respondent: WM Lloyd & Associates Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 2181 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TOLONI
Applicant
AND: MR KASABIAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.The father shall have sole parental responsibility for X (born 2012) and Y (born 2014) (“the children”).
2.That the father:
(a)Notify via Our Family Wizard the Mother of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least four weeks prior to a final decision being made;
(b)Inform the Mother via Our Family Wizard app of his final decision, in writing within 7 days of such decision having been made.
3.That the Father shall ensure that the Mother is notified as practicable if, while in his care; either child is:
(a)Admitted to hospital;
(b)Involved in a medical emergency; or
(c)Required to take medication when they returns to the Mother’s care, in which case the Father shall advise the Mother of the details of the medication required to be taken and shall provide the Mother with sufficient medication to cover the first 72 hours following child’s return to the Mother’s care.
Live with
4.The children shall live with the father.
Spend time with
5.The children shall spend time with the mother as follows:
(a)From the date of these orders, once a month on a Saturday from 8.00am till 12.00pm. The time is to be supervised by a professional or any supervision contact centre. The supervision service to be within the Sydney Metropolitan area and is to be nominated by the mother.
(b)Upon completion of time in order 5(a) after a period of twelve months and completion of eleven visits the children spend time with the mother once a month on a Saturday between 10.00am till 4.00pm unsupervised.
6.For the purposes of Order 5(b):
(a)This time is not to commence until the mother undertakes two hair follicle test and one CDT test (four months apart) showing low or normal range for alcohol consumption and negative for illicit substances; and
(b)The mother is to complete the Circle of Security Course; and
(c)For the purposes of Order 6 (a) the father agrees to pay for the second hair follicle test.
(d)After the commencement of unsupervised time, the mother is to produce to the father one CDT result within normal range each 6 month period, or as reasonably requested by the father.
(e)In the event the mother returns a result above the low or normal range, the unsupervised time is to cease. Unsupervised time is not to recommence until the mother produces one hair follicle test within low or normal range.
(f)For the purpose of undertaking the hair follicle tests, the mother is to maintain her head and body hair, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the collection of the hair.
Changeover
7.For the purposes of the changeover, the father shall deliver the children to the supervision service.
8.The father shall collect the children from the relevant supervision service at the end of the supervised visit.
Communication
9.The parties shall provide to each other an email address and contact number and notify within 48 hours of these orders.
10.The parties shall notify one another within 48 hours of any changes.
11.The mother shall be permitted to send one gift per child for each of their respective birthdays and for Christmas to an address nominated by the father.
12.The parents shall forthwith use a communications app such as Our Family Wizard to communicate with each other in respect to issues relating to the children in order to share information about the children.
Schooling
13.The mother shall be entitled to receive all documents and records concerning the children’s schooling, including reports, school newsletters and school photos.
14.Subject to the mother satisfying Order 5 the mother shall be permitted to contacting the school in relation to the children’s progress and to speak to their respective year teacher.
15.For the purposes of Orders 13 and 14 above, the schools shall be provided with a copy of these orders.
16.Subject to compliance with 6(a) the mother shall be entitled to attend at special school events, such as special assemblies, performance nights and award evenings and shall inform the father if she intends on being in attendance by way of a written message forty-eight hours prior to such event.
Restraints
17.The mother be restrained from consuming alcohol and non-prescribed medication 24 hours preceding and during contact with the children.
18.Each parent shall:
(a)Speak of the other parent respectfully; and
(b)Not denigrate or insult the other parent or any member of the other parent’s household or immediate family in the presence or hearing of the child and use their best endeavours to ensure that other persons do not denigrate or insult the other parent or other member of the other parent’s household or immediate family in the presence or hearing of the child.
THE COURT ORDERS THAT:
19.The parties equally meet the costs of the supervision of time spent pursuant to Order 5(a).
20.The father shall do all things to ensure that the children are available for, and facilitate, electronic communication by FaceTime or WhatsApp if possible, and if not possible, by telephone, between them and the mother:
(a)Once a week on a day and time as agreed in writing between the parties and failing agreement, each Wednesday at 5.00pm; and
(b)On the children’s birthdays, the mother’s birthday, Christmas day, New Years day, Easter Sunday, Mother’s day, and all other public holidays, provided that such day does no fall on a day that time is to be exercised pursuant to Order 5 hereof, at a time as agreed in writing between the parties, and failing agreement, at 5.00pm.
21.For the purposes of electronic communication pursuant to Order 20, the father may observe the commencement of the communication for the purposes of establishing whether the mother is affected by alcohol, and thereafter:
(a)If the father can establish that the mother is affected by alcohol, the father is permitted to terminate the communication on that occasion; or
(b)If the mother is unaffected by alcohol, the father is to do all things to ensure the privacy of the communication between the mother and the children in his absence and is restrained from further monitoring the communication.
22.The Independent Children’s Lawyer’s application for costs is dismissed.
23.Save and except as provided for by these orders, all other applications and responses thereto are 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Toloni & Kasabian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings initiated by Ms Toloni (“the mother”) as to the parenting of X, born 2012, and Y, born 2014 (“the children”), commenced on 8 April 2020 in what was then the Federal Circuit Court of Australia. In a Response to an Initiating Application filed 4 May 2020, Mr Kasabian (“the father”) sought different orders as to the parenting of the children. The Independent Children’s Lawyer (“ICL”) was appointed on 24 July 2020 pursuant to orders made on 5 May 2020.
The proceeding was listed for trial over three days in the Sydney Rolling List commencing 18 March 2024. At the completion of the first day of the trial, the parties reached agreement as to:
(a)The father having sole parental responsibility for the children and for them to live with him;
(b)For the children to spend four hours of supervised time with the mother for one Saturday each month for a period of 12 months and for a total of at least 11 visits, the mother to undertake two hair follicle tests and one CDT test during the twelve month period recording a low or normal range for alcohol consumption and negative result for illicit substances, and for her to complete the Circle of Security Course during that twelve month period and upon completion of those pre requisites, for the children to spend unsupervised time with the mother once a month on a Saturday for a period of six hours; and
(c)If the mother returns a result above the normal range of alcohol consumption after unsupervised time has commenced, the unsupervised time will cease. Implicitly, supervised time will then recommence. Unsupervised time will recommence once the mother produces a hair follicle test result within the low or normal range.
That agreement was reduced to writing in draft minutes of order (Exhibit 1) to be made by consent.
The discrete issues left for determination are as to:
(a)Meeting the costs of the community supervision agency facilitating time spent between the children and the mother; and
(b)The frequency of, and the terms scaffolding the facilitation of, electronic communication between the mother and the children by way of video call; and
(c)The application for costs made by the ICL.
For the reasons that follow, in addition to making consent orders in terms of Exhibit 1, orders will be made for the parties to share the cost of the community supervision agency, for the mother to communicate electronically with the children for a period of one hour each week and on special occasions, and as to the father’s facilitation of such communication. The application for costs by the ICL is dismissed.
BACKGROUND
The mother was born in 1982 and is 41 years old. The father was born in 1986 and is 38 years old. They married in 2012, separated in either December 2017 on the father’s case or 18 January 2018 on the mother’s case, and were divorced in 2019.
In mid-2018 the father re-partnered. A child of that relationship was born in 2022.
In 2019, the father made a report to state child welfare authorities as to the mother refusing to care for the children and “not looking after them properly”. In or around late 2019, the father made a further report to those authorities expressing his concerns about the children’s welfare in the care of the mother.
From separation to early 2020 the parents equally shared the care of the children.
In early 2020 the father was contacted by police after complaint was made by the mother’s neighbour as to her neglect of the children. The children have lived with the father from this time. In mid-2020 the father relocated to Region B in NSW with the children.
On 31 March 2021 an interim order was made for the children to live with the father and for the mother to spend supervised time with them for up to four hours per week. Orders were made for the mother to undertake a drug and alcohol testing regime and restraining the father by injunction from relocating.
On 23 November 2021 consent interim orders were made for the mother and the father to enrol in a “parenting after separation course”, and for the mother to spend supervised time with the children for a period of up to three hours each week.
On 11 March 2022 interim orders were made permitting the father to relocate the children to Region C of Sydney, for the mother to spend supervised time with the children pursuant to orders dated 31 March 2021 subject to some variations, and for the parties to attend a mediation or family dispute resolution conference.
Each of the parents alleged significant family violence has been occasioned by the other, including each physically assaulting the other. Communication between the parents is deficient. An absence of trust and confidence permeates the parental relationship.
The father gives extensive evidence as to the mother having historic and currently recurring challenges with the excessive consumption of alcohol. He said that the mother presents with mental health challenges. It is the father’s case that each adversely impacts on her capacity to parent and engage with the children. He alleged that these circumstances have led to the mother prioritising her own needs above those of the children and to she neglecting the children, exposing them to an unacceptable risk of harm.
A family report of Ms D issued on 6 June 2023. The single expert opined as to the children being exposed to risk of psychological harm and neglect in the mother’s care. The expert stated that the mother “is still drinking alcohol on a regular basis”, and accordingly “there is concern that the children’s safety and wellbeing could be at risk in her care”. The expert further opined that exposure to neglect can “have long-term behavioural and mental health impacts on children as they grow older, affecting areas of their life such as school performance and engagement in antisocial or risk-taking behaviours” and can “increase the risk for attentional, emotional, cognitive and behavioural disorders developing at a later stage”. The expert recommended that the father have sole parental responsibility for the children, that they continue to live with him, that the mother undergo hair follicle testing every six months for a period of two years with differing contact arrangements between the mother and the children dependant on the outcome of those tests, and for the mother to complete the parenting course “Circle of Security”.
In late 2023 the mother relocated to live in Melbourne. It was her evidence that she was willing to travel interstate to NSW each month to spend time with the children.
To the credit of parties and the ICL, the proposed consent orders contained in Exhibit 1 were constructed after a consideration of the expert evidence, with the objective being to ensure the children maintained a meaningful relationship with the mother, enabling the progression of time spent scaffolded by the mother undertaking processes to make any risk to the children in her care acceptable.
THE LAW AS TO THE DISPUTED PARENTING ISSUES
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) mandates that in making a parenting order, the best interests of the child is the paramount consideration. The matters which the Court must consider in determining the children’s best interests are set out in s 60CC of the Act. I will identify those factors within the section as are relevant to the discrete parenting orders in dispute.
THE MOTHER’S COMMUNICATION WITH THE CHILDREN
By way of minute of order (Exhibit 2), the ICL sought:
12.The father shall facilitate electronic contact between the children and the mother:
a.Once a week as agreed between the parties and failing such agreement, each Wednesday at 5.00[pm]; and
b.On the children’s birthdays, Christmas Day, New Years Day, Easter Sunday, Mothers Day, and all other public holidays at any time as agreed in writing between the parties, and failing agreement 5pm.
13.For the purposes of telephone contact with the children, the father shall refrain from interfering or interrupting the phone call with the child. The father shall provide the children with an appropriate space to speak to their mother.
The mother agreed with the orders as sought by the ICL and sought an order that the children have electronic contact with her on her birthday. There was no submission made as to why the children communicating with her on that day would not be in their interests. Such order will be made.
The ICL identified and highlighted portions of the evidence of the single parenting expert on this subject matter:
84.Despite the concerns that have been raised regarding [the mother’s] parenting, the children seem to love their mother and were able to speak positively about her. From the supervised contact records and information within this assessment, it seems that the children have been happy to spend time with their mother, and at times have missed their mother’s presence in their lives. It is positive that the children have had the opportunity to spend time with their mother over the past two years in a supported setting and it seems that this has allowed the children to repair (to a degree) their relationship with their mother and see her from a more positive light. It should be acknowledged that, although there have been some cancellations, [the mother] seems to have tried to persevere with supervised time to maintain her relationship with the children. [The children] did not appear to have irrational or unbalanced views of their mother during the assessment, and they both showed excitement at the thought of spending time with their mother. [The children] did not present in a way that would indicate that they have been negatively influenced by [the father] or anyone else on their views of their mother, as this was something that [the mother] highlighted concerns about.
90.Given, that the children appear to love their mother, that they enjoy their time with her, and have an established relationship with her, it would likely be very distressing for the children to spend no time with her. As such, it is the assessment of this writer that it would be preferable that the children either continue spending supervised time with their mother on a monthly basis, (or once every two months if continuation of monthly time in not affordable).
(Emphasis added)
The father sought for the mother’s periodic electronic communication with the children to occur once per fortnight. He did not agree to an order being made in accordance with the first sentence of Order 13 as sought by the ICL. He relied on his trial affidavit:
62.There have been many occasions where [the mother] has demonstrated her inability to effectively co-parent or communicate in a sober state. On 12 June 2020, I had contacted [the mother] so she could speak with the Children. Whilst I called at 5:28pm, [the mother] ignored this phone call and stated that because we did not call at 5:30pm, it did not count. Furthermore, [the mother] did not want to rearrange a different time to communicate with the Children and continuously made it difficult to discuss this parenting issue…
63.On 8 June 2020, I contacted [the mother] so she could speak with the Children, however, she did not answer. She did not have an explanation for this. Following this, a few days later, I contacted [the mother] and the Children spoke with her. The Children asked her words to the effect of: ‘mummy, we really want to see this movie.’. I heard that [the mother] had become irate at this and sent ridiculous correspondence stating that I had to call her, not the other way around.
64.On 17 June 2020, [the mother] blamed me for not being able to receive calls via her WhatsApp so I had attempted to contact her and subsequently received a series of abusive text messages from her.
65.On 22 June 2020, [the mother] appeared to me to be extremely drunk when she contacted the Children. She was slurring her word and shouting. She also appeared unsteady on her feet. She had then sent ridiculous correspondence by way of text messages stating that I am a babysitter.
In his affidavit he gave evidence as to 34 instances in the period from April 2020 to March 2021, in which the mother did not answer telephone calls pursuant to court orders, that he made with the children. He said that the mother was not able to focus on the children during calls and had made harmful comments to them. He said that the children would run out of things to talk about each week, and therefore communication would be preferable fortnightly. Implicitly, it was his case that the children would be disappointed if they were not able to speak with their mother pursuant to a weekly schedule. Somewhat paradoxically, this submission supports the orders promoted by the mother and the ICL for weekly electronic communication with their mother, being something that the father understands the children would benefit from and enjoy.
I accept the father’s evidence and give it weight. That said, his evidence as to the mother failing to initiate or achieve communication with the children on 34 occasions is now somewhat historical. I accept his concerns that the terms of the first sentence of Order 13 as sought by the ICL may, on one construction, restrict his capacity to be protective of the children if he observes the mother’s communication with them to be harmful should she be affected by alcohol at the time or is engaging in destructive subject matters with them. The father identified concerns as to the potential for further applications alleging contravention of electronic communication orders being filed by the mother should he exercise authority terminating communication for the benefit of the children. This contention also attracts weight.
The ICL’s submission was that weekly electronic communication will be meaningful and beneficial for the children, having regard to the nature and terms of their relationship with their mother. I accept this submission as supported by the expert evidence. I give it significant weight. It was submitted that any risk of harm to the children posed by the mother can be mitigated by the electronic contact being limited to once per week. This logic underpinning this submission is more difficult to follow. I give it little weight.
The mother’s submissions reflected those of the ICL. She said it was “not right” that the children could not talk to her. She submitted it was in the children’s best interests to speak to their mother, whom they loved, as outlined in the single parenting expert’s report. She submitted that she would speak to the children at any time that suited them.
On balance, I find that the ICL’s proposals, with alterations as to the father’s obligations scaffolding the facilitation of the process of electronic communication, be it by a preferred method of FaceTime or WhatsApp, or by telephone, is in their best interests. Orders will be made that father do all things to facilitate making the children available for the electronic communication, to ensure the privacy of the children’s electronic communications with their mother and not to monitor that communication. He will have the capacity to terminate the facilitation of a call if he observes and can establish that the mother is affected by alcohol at the commencement of an electronic communication. The children are now aged 11 and 9. They have experienced their mother while affected by alcohol. They will no doubt advise the father as to any harmful or inappropriate comments made by the mother during the calls. They have their own developing self-protective capabilities to shut down calls should the mother exhibit harmful behaviour.
COST OF THE SUPERVISION AGENCY
The father seeks that the mother alone meets the cost of the community-based supervision agency. The mother and the ICL seek that this cost would be split equally between them. It was agreed that the cost of the supervision agency is approximately $400 a visit.
Neither party put direct evidence before the court as to their current financial circumstances. The father is employed as a transport worker. He has re-partnered and has another child. He meets the cost of the day-to-day costs of the children’s periodic needs. He submitted that the mother’s child support is more than $30,000 in arrears.
The mother says she is self-employed in the service industry. She did not provide any other particulars. She was provided legal representation by Legal Aid until 6 March 2024. The mother has recently relocated to Melbourne. She will be required to meet the cost of travelling to Sydney each month to spend time with the children.
Pursuant to the consent orders, the mother is to meet the cost of the first hair follicle test, and the father is to meet the cost of the second.
The father correctly identified the mother has drifted in and out of the proceedings, leading to him to incurring increased unnecessary legal fees. He submitted this factor, coupled with the mother’s failure to undertake the court ordered testing regime since 2020, lead to the conclusion that she should meet the entire cost of the supervision agency.
Historically, the parties have equally met the costs of supervision pursuant to court orders. It is in the children’s best interests for both parents’ to be emotionally and financially invested in facilitating the maintenance of a meaningful relationship between the mother and the children. The mother and the father both agree it is in the best interests of the children for contact between the mother and the children to occur by way of a supervision agency. In all the circumstances, the best interests of the children are promoted by the costs of the supervision agency being equally borne by the mother and the father.
ICL’S COSTS APPLICATION
The ICL sought costs in the sum of $4,663.50 from each the mother and the father. The costs application was opposed by each parent.
Legal principles
The costs of the parties and the ICL in the appeal are governed by the provisions of s 117 of the Act. Ordinarily, the parties bear their own costs of the appeal (s 117(1)), however the Court may order the payment of costs (s 117(2)), subject to consideration of several material factors (s 117(2A)).
The costs of the ICL abide different considerations (ss 117(3), 117(4) and 117(5)). The ICL participates in the litigation, performing special functions and occupying a unique position, but is not a party to the proceeding (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207 and 225–226). Hence, the provisions of s 117(1), which only apply to “parties”, does not create the same starting presumption for ICL’s costs as applies in respect of the parties. The ICL was funded for the trial by a grant of legal aid, but the Court is mandated to disregard such legal aid funding when determining the costs application (s 117(5)), which obligation has been interpreted to mean the ICL should be presumed to be unfunded so as to incline the Court to order the parties’ contribution to the ICL’s costs (De Roma & De Roma (2013) 49 Fam LR 226).
Consideration
Notwithstanding these factors as costs being in favour of the ICL, a consideration of all of the circumstances do not justify the making of a costs order as sought as payable by either parent. The determinative factor derives the absence of apparent buoyancy in the financial circumstances of each parent shadowed by the prospective ongoing costs of the maintenance of a meaningful relationship between the mother and the children by way of supervision, of the hair follicle testing regime, of the reality of the father meeting expense of the day-to-day support of the children and of his current other family, and of the mother’s travel expenses to spend time with the children.
The ICL’s application for costs, notwithstanding the valuable role of the ICL in the litigation, will be dismissed.
CONCLUSION
For all the above reasons, orders shall be made as set out in the forefront of these reasons.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 21 March 2024
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