Toloni & Kasabian

Case [2024] FedCFamC1F 187

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…

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Toloni & Kasabian [2024] FedCFamC1F 187
Case
[2024] FedCFamC1F 187
Decision Date

CaseChat Overview and Summary

In the case of Toloni & Kasabian, the Federal Circuit and Family Court of Australia (Division 1) addressed a contentious dispute between the parents, focusing on the conditions under which the mother could communicate with her children. The court was tasked with deciding several issues, including the frequency of electronic communication between the mother and the children, the allocation of costs related to the supervision agency, and the application for costs by the Independent Children’s Lawyer (ICL). The parents had reached a consensus on most of the issues, but three remained unresolved.

The legal issues the court needed to resolve included determining the appropriate frequency for electronic communication between the mother and the children, deciding who should bear the costs of the supervision agency, and addressing the ICL’s application for costs. The parents and the ICL agreed that the mother should communicate with the children by electronic means, but they disagreed on the frequency and the scaffolding needed to facilitate these communications. Additionally, there was a dispute over whether the mother should bear the costs of the supervision agency or if these costs should be shared equally between the parties.

The court reasoned that while the ICL played a valuable role in the litigation, the financial circumstances of both parents and the ongoing costs associated with maintaining the mother-child relationship warranted a careful consideration of the costs application. The court found that neither parent had the financial resources to support an order for the other to bear the full cost of the supervision agency. Therefore, the court ordered that the costs of the supervision agency be shared equally between the parties. Furthermore, the court decided that the mother should communicate with the children electronically for one hour each week and on special occasions, with the father facilitating these communications. The court also dismissed the ICL’s application for costs, concluding that the circumstances did not justify making such an order against either parent.

In summary, the court made orders for the parties to share the cost of the supervision agency equally, for the mother to communicate electronically with the children for one hour each week and on special occasions, and for the father to facilitate such communications. The ICL’s application for costs was dismissed, and all other applications and responses were dismissed, except as provided for in the orders. This decision ensures that the children maintain a meaningful relationship with their mother under supervised conditions, while also considering the financial constraints of both parents.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.