AYOUBI & TAWAKOL

[2015] FamCA 117

FAMILY COURT OF AUSTRALIA

AYOUBI & TAWAKOL [2015] FamCA 117

FAMILY LAW – CHILDREN – With whom the children live – with whom the children spend time – orders sought with respect to the two youngest children – mother’s application for a change of residence – where the father seeks that all five children continue to live with him and that he have sole parental responsibility – best interests – separation of siblings – where unable to make final orders – interim change of residence – interim order for sole parental responsibility – father’s interim time to be supervised.

Family Law Act 1975 (Cth)

McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Ayoubi

RESPONDENT: Mr Tawakol

INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

FILE NUMBER: MLC 3196 of 2012

DATE DELIVERED: 20 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: 18 & 19 September, 29 October, 27 November, 12 & 19 December 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lampe, Lampe Family Lawyers

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraph 1 of the consent orders made 11 September 2012, paragraphs 3 and 6 of the orders made 6 August 2013 and paragraphs 1 and 2 of the orders made 19 September 2014 be and are hereby discharged.

2. The father have sole parental responsibility for the long term care, welfare and development of the children B born … 1998 (“B”), C born … 2000 (“C”) and D born … 2002 (“D”).

3. B, C and D live with the father.

4. The mother have sole parental responsibility for the long term care, welfare and development of the children E born … 2005 (“E”) and F born … 2008 (“F”).

5. E and F live with the mother.

6. The father be and is hereby restrained by himself, his servants and/or agents from communicating directly or indirectly, approaching or removing or attempting to remove E and F from the mother’s care or the care of any other person with whom she has placed them save to exercise time with E and F pursuant to these orders or with the prior written consent of the mother.

7. The mother and father forthwith do all acts and things necessary to utilise the services of either G Contact Centre or H Contact Centre (‘the contact centre’) in providing supervision of the time between E and F and the father.

8. Upon the contact centre becoming available to supervise time, the father spend time with E and F on days and at times nominated by the contact centre and if it can be accommodated to be on a weekly basis and B, C and D be permitted to accompany the father.

9. The father pay the cost of supervision at the contact centre.

10. The Independent Children’s Lawyer obtain a report as to the progress of the time between the father and E and F from the contact centre AND IT IS REQUESTED by the parties that Victoria Legal Aid fund the cost of that report.

11. The Independent Children’s Lawyer be at liberty to:

a)   liaise with the contact centre from time to time as to the progress of the supervised time;

b)     provide to the contact centre a copy of the reasons for judgment of Justice Macmillan dated 20 February 2015, the family reports prepared by Ms I in this matter, and a copy of the orders dated 20 February 2015; and

c)     provide a copy of any report from the contact centre to the family consultant.

12. The Independent Children’s Lawyer be at liberty to provide to the Department of Human Services a copy of the reasons for judgment of Justice Macmillan dated 20 February 2015 and the family reports prepared by Ms I in this matter.

13. The father and mother do all acts and things necessary and bear such costs to ensure that the children in their respective care attend such counselling or therapy as may be recommended by the Independent Children’s Lawyer in consultation with the family consultant and the Independent Children’s Lawyer be at liberty to provide such counsellor or therapist with a copy of the reasons for judgment of Justice Macmillan dated 20 February 2015 and the family reports prepared by Ms I in this matter.  

IT IS FURTHER ORDERED THAT

14. It is requested that the family consultant or her nominee in Child Dispute Services in this Registry meet with E and F and explain to them the effect of the orders made this day prior to releasing them into the care of the mother.

15. The mother liaise with the Manager of Child Dispute Services in this Registry as to the time she may collect E and F from the child minding room following the pronouncement of these orders and the family consultant or her nominee meeting with E and F to explain to them the effect of the orders.

16.

The matter be otherwise adjourned for mention before Justice Macmillan at

9.00 am on 18 August 2015.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ayoubi & Tawakol has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3196 of 2012

Ms Ayoubi

Applicant

And

Mr Tawakol

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 8 February 2012 the police were called to the former matrimonial home where the mother was living with at least four of the five children of the marriage. Following which, the police applied for and obtained a family violence order against the mother naming all five children, B who is now 16 years of age, C who is 14 years of age, D who is 12 years of age, E who is nine years of age and F who is seven years of age as persons protected by that order. It is not disputed that the children have lived with the father since that date.

2. In April 2012 the mother commenced proceedings in what was then the Federal Magistrates Court. The mother was at that time seeking orders for sole parental responsibility for all five children and that the children live with her.

3. On 14 May 2013 the matter was listed for interim hearing regarding the mother’s application to spend time with the children and set down for final hearing, estimated to take two days commencing on 18 November 2013. 

4. On 6 August 2013, the date of the interim hearing of the matter, orders were made by consent vacating the date fixed for the final hearing, transferring the matter to this Court, and providing initially that the two youngest children E and F spend time with the mother each Saturday from 10.00 am until 2.00 pm increasing as and from 7 December 2013 to 10.00 am until 6.00 pm and any other times as agreed between the parties in writing. Interim orders were made by consent for the elder children B, C and D to spend time with the mother as agreed between the parties in writing and in accordance with the children’s wishes. The mother was also ordered to undertake supervised drug screens within 48 hours of being requested to do so by the Independent Children’s Lawyer.

5. In July 2014, in anticipation of this matter being listed for a first day of hearing, the mother filed an amended initiating application in which she sought orders that she and the father have equal shared parental responsibility for all five children, that the children live with the father, and that the three youngest children D, E and F spend time with her every Friday from after school until 6.00 pm on Saturday, on each of the children’s birthdays as agreed between the parties and failing agreement for a minimum of four hours, from 10.00 am until 6.00 pm on Mother’s Day, and any other times as agreed between the parties in writing. The mother proposed that the eldest children B and C spend time with her as agreed between the parties in writing and in accordance with the children’s wishes.

6. This amended application reflected the significant deterioration in the children’s relationship with the mother, in particular the relationship between the mother and the two eldest children B and C and the impact of that relationship upon the other children.

7. The Court in this case has had the benefit of three reports prepared by Ms I, a family consultant employed by this Court, and Ms I gave oral evidence on three occasions during the case. The most recent of those reports was dated 4 August 2014. It was Ms I’s assessment, following her interviews with the father, the mother and the two youngest children for the purposes of that report, that ‘[E] and [F] have been subject to significant emotional pressure to reject their mother, which they have continued to resist, causing them despair and anguish.’ Ms I was ultimately so concerned about the welfare of the two youngest children that she made a notification to the Department of Human Services.

8. Following the release of Ms I’s report to the parties on 15  August 2014 the mother filed a further amended initiating application in which she sought orders for sole parental responsibility for E and F and that they live with her, that the parties have equal shared parental responsibility for B, C and D, that D spend time and communicate with the mother every Friday from after school until 6.00 pm Saturday, on D’s birthday as agreed between the parties and failing agreement for a minimum of four hours, on Mother’s Day from 10.00 am until 6.00 pm, and at other times as agreed between the parties in writing, and that the two oldest children B and C spend time with the mother as agreed between the parties in writing and in accordance with the children’s wishes.

9. In that further amended application, the mother additionally sought orders that each party facilitate the children contacting the other parent by telephone should they express a wish to do so, that the parties inform each other as soon as practicable of any serious injury or illness affecting any child whilst in their respective care, that the father advise the mother of the medical clinic where the children attend and shall authorise the clinic to communicate with the mother regarding the children’s health, orders regarding interstate travel with the children, the provision of school documentation to the mother and inclusion of her as a contact person on the children’s school records, that the parties keep each other advised of any extracurricular activities and the like in which the children are involved and permit the other to attend such functions, that the parties keep each other informed of contact details including their residential address, and an order restraining the parties from denigrating each other and discussing these proceedings with the children or in their presence and/or hearing.

10. What is clear in this case is that there has been a significant breakdown in the relationship between the mother and the two eldest children B and C and to a lesser degree the middle child D and there seems little prospect, at least in the short-term, of those relationships improving whatever the long-term implications may be for those children’s welfare. It is equally clear however that the two youngest children E and F wish to have a relationship with the mother and this Court must determine how that may best be achieved.

BACKGROUND

1. The mother was born in 1969 and is now 46 years of age. She is currently unemployed.  Although the mother deposes in her affidavit that she is in good health, it was her evidence during the hearing that she periodically suffers back pain such that at times her ability to perform day-to-day activities is significantly curtailed.

2. The father was born in 1960 and is 54 years of age. He is currently unemployed. He is in good health and has the full-time care of the five children of the marriage.

3. The mother and father were married in Country J in 1996. There is some disagreement over the date on which the parties finally separated. The mother in her affidavit filed 25 August 2014 says that the parties separated in 2008 but during cross-examination said that she was not certain of the actual month and suggested March or April that year. The father in his evidence puts the date of separation at 18 December 2011. Neither of the parties has re-partnered. I will refer to this issue of the date of separation later in these reasons.

4. There are five children of the marriage, B born in 1998 aged 16 years, C born in 2000 aged 14 years, D born in 2002 aged 12 years, E born in 2005 aged nine years and F born in 2008 aged seven years.

5. The mother has been married on two previous occasions. She has three adult children from those marriages, Ms K aged 28 years, Ms L aged 26 years and Mr M aged 19 years. The mother’s two eldest daughters Ms K and Ms L both have children of their own. It was the mother’s evidence that she has a close relationship with her eldest daughter Ms K and with her son Mr M, but that her relationship with her second daughter has deteriorated and she has subsequently not seen Ms L for some four to five months.

6. At the commencement of the case the father described Ms K as “the link between” he and the mother. It was noted in the family report dated 4 August 2014 that ‘the father enjoys a close relationship with [the mother’s] oldest two daughters’ and at the commencement of the case the Independent Children’s lawyer proposed that Ms K supervise the father’s time when he is with E and F. However, it is now clear from the evidence of both the father and Ms I that the father’s relationship with Ms K has broken down.

7. Both prior to and after 2008 the father travelled regularly to Country J, staying each time for a period of approximately nine weeks.  Prior to 2009 he undertook this travel every second year and thereafter made annual trips in 2009, 2010 and 2011. He returned from the last of these holidays in August 2011. On each of these occasions, the children were in the mother’s care.

8. The mother also travelled overseas, spending from March to June 2010, March to May 2011 and August to December 2011 in Country N. The children accompanied the mother on her 2010 visit to Country N, but also spent time with the father who was in Country J during this time. The mother’s evidence was that the father cared for the children in Australia during her subsequent visits to Country N.

9. The children have lived with the father since February 2012. In September 2012 the mother and father entered into interim consent orders providing for the children to live with the father and spend time with the mother each alternate Saturday from 1.00 pm to 5.00 pm and each alternate Sunday from 1.00 pm until 5.00 pm  supervised by the mother’s eldest daughter Ms K. The mother spent time with the children pursuant to these interim orders until January 2013 when it was stopped by the father on the basis of what he said were his concerns for the children in the mother’s care.

10. It is agreed that the mother did not spend time with the children from January 2013 for a period of some seven months.  The mother’s time with E and F recommenced on 17 August 2013 pursuant to the orders made 6 August 2013. The August 2013 orders provided for E and F to spend time with the mother for a period of eight hours each Saturday, with her time with the three elder children to be as agreed and in accordance with their wishes. The mother deposes that she has spent minimal time with B, C and D since those orders were made.

11. It is the father’s evidence that the mother has not availed herself of the time provided by the August 2013 orders and that E and F have not seen the mother on a regular basis. During the course of the hearing before me the mother conceded that the time she has spent with the children “hasn’t been frequent”. I will also address this issue in more detail later in these reasons.

History of Involvement of Victoria Police and the Department of Human Services

1. In her report dated 17 April 2013, Ms I summarised the involvement of both Victoria Police and the Department of Human Services. This was confirmed by the s 69ZW report provided by the Department pursuant to the order of 27 November 2014. Those police reports and notifications to the Department are as follows:

   ·   On 3 September 2010 a report was received by the Department in relation to the mother’s son Mr M and the children of the marriage B, C, D, E and F, in relation to family violence between Mr M and the mother who was refusing to have Mr M returned to her care. Arrangements were made for a maternal uncle to care for Mr M however Mr M returned to the family home.

   ·   On 26 September 2010 there was a further report to the Department with respect to violence between the mother and Mr M. The mother reported Mr M being violent to her and expressed concerns about the younger children being exposed to his violence and his marijuana use. Mr M was placed outside the family home.

   ·   A report was made to the Department on 21 December 2011 raising concerns about the mother not meeting the children’s day-to-day needs, not adequately feeding the children, and the children being absent from school and the mother abusing prescription medication. It was further reported that the mother had shoplifted, had resorted to kicking and punching the children to discipline them, and had left them unsupervised. When followed up by the Department the mother admitted to previously using Valium ‘unnecessarily’ but that she had been off it for the past six months. The reported information was assessed by the Department as not being enough to suggest that the children were at a significant risk of harm. The report was classified as a ‘Child Well Being Report’ and the file was closed.

   ·   On 18 January 2012 B contacted the police requesting assistance following the mother reportedly yelling at her as a result of her picking on one of her younger sisters. According to Ms I, upon police attendance it became clear that B did not wish to obey the mother’s rules and was encouraging C to similarly rebel against the mother. There were no threats or violence reported.

   ·   On 20 January 2012 C telephoned the police as a result of the mother allegedly standing on her while she was watching television. The police reported that when they attended it was clear that C did not want to live with the mother and wanted to live with the father and was refusing to accept her mother’s rules. There were no concerns reported for her safety.

   ·   The police were called to a minor verbal argument between the father and the mother on 8 February 2012 regarding the reported attitude of the children and the father seeking to collect his clothes from the former matrimonial home. On this date, the children expressed their desire to live with the father and the mother agreed.

   ·   Although the police reported that there was no report of assault or violence on 8 February 2012, the Department had by this time opened a file in response to a notification that there were two incidents when the children reported being hit by the mother. The older children provided the Department with a short video clip of their mother harming F and photos of bruising to the older children. It was also reported that F was left unsupervised in the mornings because the mother was still sleeping and that she was hungry when the older children returned from school.

   ·   The s 69ZW report refers to the mother reportedly hitting the eldest child with a metal handle and shoe. The mother denied assaulting the children. The children being in the care of the father they were considered not to be at risk and the file was closed.

   ·   The Sexual Offences and Child Abuse Investigation Team (SOCIT) received a notification in relation to C on 9 February 2012. They attended and observed bruising to C’s arm.

   ·   In March 2013 the Department received a report that the father had been caught stealing socks and shoes for the children. The father received a caution from the police in relation to this incident. The report was classified as a ‘Child Well Being Report’ and the file was closed.

   ·   On 28 July 2014 a report was received by the Department in relation to the children in the father’s care. It was assessed that there was no role for Child Protection and that the father and the children would benefit from a referral to Child First.

   ·   On 11 August 2014 a notification was made to the Department that the father has used physical discipline in the past and verbally and emotionally abused E and F, and that he speaks negatively about the mother and gets angry with the children if they speak positively about her. The Department contacted Child First and discussed the report with them and Child First were of the opinion that they could address these concerns with the father and provide him with parenting education relating to appropriate methods of disciplining the children, reducing the negativity in the home, and allowing the children to speak about their mother.

   ·   On 8 September 2014 the Department reports consulting with Child First and Child First’s advice that the father was demonstrating the ability to attend to the children’s emotional needs and was committed to seeking ongoing professional assistance.

1. I will discuss the two further notifications made to the Department since the commencement of the hearing in more detail later in these reasons.

THE PROCEEDINGS AND THE EVIDENCE

1. The hearing of this matter was conducted over five days. The matter proceeded as listed on 18 and 19 September 2014. On 19 September 2014, it was adjourned part-heard for further hearing on 29 October 2014 to enable the family consultant Ms I to interview the child D. The matter did not proceed on 29 October 2014 due to the unavailability of a Country J interpreter for the father and was further adjourned part-heard to 27 November 2014. The matter was further listed for mention before me on 12 December 2014 following the order made on 27 November 2014 requesting the Department provide a s 69ZW report in relation to the most recent allegations of physical abuse of the children.

2. The mother relied upon the following documents for the purposes of the final hearing:

   ·   her further amended application filed 25 August 2014;

   ·   her affidavit filed 25 August 2014; and

   ·   her outline of case filed 16 September 2014.

3. In anticipation of the hearing of the matter on 6 May 2014, when the matter was set down for a first day of hearing, the father filed an amended response to initiating application as ordered and, although he was not required to do so, an affidavit in support of that amended response. He also filed a summary of issues for the hearing that day. Although on 6 May 2014 I made orders for the filing of affidavits of evidence in chief, the father did not file any further affidavit material for the purposes of the final hearing and sought to rely upon his affidavit filed 1 May 2014.

4. These are child-related proceedings and are to be conducted in accordance with the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”). That being the case the Court must give effect to the principles in s 69ZN of the Act including, but not limited to, considering the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings (s 69ZN(3)), that the Court is to actively direct, control and manage the conduct of the proceedings (s 69ZN(4)), and that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible (s 69ZN(7)).

5. Both the father and the mother are unrepresented. They each required the assistance of an interpreter. Mindful of the issues raised by the family report writer in relation to the welfare of the children, the need for the children’s sake to have the matter determined without further delay, there being no objection by either the mother or the Independent Children’s Lawyer, and being satisfied it was appropriate to do so, I granted the father leave to rely upon his affidavit filed 1 May 2014.

6. On the first day of the hearing before me on 18 September 2014 the father also sought leave to rely upon a 2.05 minute audio recording of an altercation between the mother and the two eldest children B and C recorded on a phone by one of those children and a 0.05 minute video recording, similarly recorded on a telephone, of the mother and the children.

7. Both of the incidents which were recorded took place in 2012 and would appear to be the same evidence which was provided to the police and the Department. Notwithstanding that the father had not disclosed this evidence prior to the first day of the hearing and the limited relevance and probity of that evidence ultimately neither the mother nor the Independent Children’s Lawyer objected to the father being permitted to rely upon the two recordings as part of his case. It was submitted by the Independent Children’s Lawyer, and I agree, that it is ultimately a question of what weight should be given to that evidence.

8. The father not having filed an affidavit in response to the mother’s trial affidavit, it was necessary as a matter of procedural fairness for the mother to know what the father’s evidence would have been had he complied with the orders for the filing of affidavits before being required to give her evidence and be cross-examined. On that basis, the father was given the opportunity, with the assistance of his interpreter, to prepare and read his response to the mother’s evidence prior to cross-examination of the mother.

9. At the conclusion of the parties’ evidence, Ms I the family consultant was called to give evidence and be cross-examined. Ms I was asked a number of questions by counsel for the Independent Children’s Lawyer in relation to the likely effect of orders separating E and F from the other children, in particular separating them from D, and her views about D spending time with the mother in the event orders were made that E and F live with the mother. The Independent Children’s Lawyer’s preliminary view at the commencement of the hearing was that an order be made that D spend time with the mother from Friday to Monday on alternate weekends and that he otherwise live with the father. Ms I gave evidence that she had not interviewed D for the purposes of her most recent report and that, accordingly, she was not in a position to give evidence in relation to those issues.

10. At the conclusion of the matter on 19 September 2014 the parties entered into interim consent orders varying the August 2013 orders to provide for E and F to spend overnight time with the mother from 5.00 pm on Friday until 5.00 pm Saturday commencing on 26 September 2014. It was further ordered by consent that the children not be brought into contact with the mother’s son Mr M when they are in her care. The matter was then adjourned part-heard to 29 October 2014 and the father was ordered to deliver D to Child Dispute Services for the purposes of him being interviewed by Ms I.

11. Prior to the further hearing on 29 October 2014 the father filed an application for contravention of the interim orders made by consent on 19 September 2014 and in particular the order restraining the mother from permitting her son Mr M coming into contact with E and F. The father’s application for contravention was adjourned for hearing before Justice Johns on 21 November 2014. On 21 November 2014 the father withdrew his application for contravention but sought to rely upon the affidavit filed in support of that application for the purposes of the part-heard hearing before me. The mother and counsel for the Independent Children’s Lawyer did not object to the father relying upon his affidavit and, subject to the mother being permitted to give evidence by way of reply and cross-examination of the father, he was granted leave to do so.

12. At the commencement of the hearing on 27 November 2014 the father sought an adjournment of the proceedings, he said, to enable him to obtain legal assistance. The father having had ample time to pursue a grant of legal aid and where even on his own case it was unlikely that he would be granted aid in circumstances where he has previously lodged three applications for aid, I found that it was in the best interests of the children to have these proceedings concluded and I did not accede to his application for an adjournment. The matter thereafter proceeded on that day.

13. In the course of the further hearing on 27 November 2014 the mother sought to rely upon a recording that her daughter Ms K had made of the mother and E and F talking about the father. As with the audio and video recordings relied upon by the father, only part of the recording was in English. The mother said that this was the first time she had recorded the children. The father having been given leave to tender the video and audio recordings to which I have referred, the mother was also given leave to rely upon the recording of her discussions with E and F, it ultimately being a matter for the Court as to what weight should be afforded to that evidence.

14. The parties made closing submissions at the conclusion of the hearing on 27 November 2014 however the matter was listed for mention before me on 12 December 2014 for the release of the s 69ZW report, with the parties at liberty to make any further submissions in relation to that report on that date. On 12 December 2014 the s 69ZW report was read to the parties by their respective interpreters and I made orders that E and F again attend upon Ms I at Child Dispute Services for the purposes of her updating her family report in light of the matters contained in the s 69ZW report. The matter was adjourned for further hearing before me on 19 December 2014.

15. On 19 December 2014, Ms I gave further evidence and orders were made that E and F be delivered to Child Dispute Services on the date that judgment is delivered and judgment was otherwise reserved.

16. The Independent Children’s Lawyer relied upon the following documents:

    ·   the family report of Ms I dated 17 April 2013;

    ·   the addendum to that report of Ms I dated 24 July 2013;

    ·   the family report of Ms I dated 4 August 2014;

    ·   the psychiatric assessments of the father and the mother by Professor O dated 31 March 2013; and

    ·   the Independent Children’s Lawyer’s outline of case filed 17 September 2014.

17. The standard of proof in this case is the balance of probabilities. Pursuant to  s 140 of the Evidence Act 1995 (Cth) in applying the relevant standard of proof the Court must take into account:

    (a)the nature of the cause of action or defence; and

    (b)the nature of the subject-matter of the proceeding; and

    (c)the gravity of the matters alleged.

18. I have had the benefit of both listening to the evidence and observing the father and the mother whilst they each gave their evidence. I have considered their evidence carefully and I make my findings to the requisite standard having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations, the matters which I must consider and the consequences that flow from my findings.

19. As a general proposition, I prefer the evidence of the mother over that of the father. That being said, there were aspects of both the evidence of the father and the mother which suggested that they lacked insight into the needs of the children. However, beyond what might be described as the father’s lack of insight and his attitudes, in particular his dismissive attitude to and about the mother, I also found the father to be at times both evasive and somewhat disingenuous. This was evidenced by his willingness to accept without analysis anything that he said the children had to say about the mother. The mother, on the other hand, presented as truthful even when that evidence might be seen as detrimental to her case. One example was her evidence in relation to her son Mr M coming into contact with E and F, albeit briefly, subsequent to the September 2014 orders being made that she not permit him to come into contact with the children during the time they spend in her care.

20. There were also occasions when there were conflicts in the parties' evidence which were more a matter of their interpretation or understanding rather than an attempt to deliberately mislead. One clear example was the evidence in relation to their separation. Although the father deposes that separation had occurred in December 2011, he conceded during cross-examination that it had in fact occurred in 2008 albeit that it was his evidence that he continued to have daily involvement in the children’s lives and cared for the children in the mother’s home during her absences overseas. The father explained the discrepancy in his evidence on the basis that he still considered that they were married notwithstanding that they were not living together. I am satisfied that the father and the mother lived separately from 2008 onwards.

21. The family consultant Ms I gave evidence and was cross-examined on 19 September 2014, 27 November 2014 and 19 December 2014. Her evidence was thoughtful and considered and she had clearly reflected upon many of the underlying issues – including what she described as the cultural issues – in this case. Ms I has had the benefit of a lengthy involvement in this matter, having prepared three reports over a period of approximately 18 months, and she was able to reflect upon these children’s welfare over that period.

22. The father was critical of Ms I, suggesting that her opinion of him and her recommendations based upon those opinions were biased. The father put this suggestion to Ms I at the hearing on 27 November 2014 and he reiterated this submission at the hearing before me on 19 December 2014. I observed no bias on Ms I’s part and a clear example to the contrary was her evidence at the hearing on 19 December 2014 about the improvement in what she observed of the relationship between E and F and the father from her observation sessions for the purposes of her report dated in August 2014.  Insofar as there is a dispute between her evidence and that of the father, I accept Ms I’s evidence.

THE PARTIES’ PROPOSALS

1. At the conclusion of the evidence counsel for the Independent Children’s Lawyer proposed that orders should be made on an interim basis that the mother have sole parental responsibility for E and F and that they live with her. Counsel further proposed that E and F spend supervised time with the father at either the G or H Contact Centres, depending on availability. Counsel for the Independent Children’s Lawyer submitted that it would not be in the children’s best interests to make final orders at this time.

2. At the commencement of the case the Independent Children’s Lawyer’s preliminary position was that orders should be made for D to spend time with the mother and E and F, and that this should take place each alternate weekend from the conclusion of school on Friday until before school on Monday. However, based upon Ms I’s evidence subsequent to her interview with D, counsel for the Independent Children’s Lawyer proposed that no orders should be made with respect to D spending time with the mother.

3. Although the mother in her further amended initiating application sought orders with respect to D spending time with her, she ultimately adopted the submissions and proposals made by counsel for the Independent Children’s Lawyer. I will refer to the child D in more detail later in these reasons.

4. At the commencement of the case the father proposed that the mother continue to spend time with the E and F according to the then current orders, being each Saturday for a period of eight hours, and that that time continue to be supervised by Ms K. When asked by counsel for the Independent Children’s Lawyer what he thought a possible increase to that time might be moving forward, the father proposed an increase to include a Friday evening. When further questioned as to his position in the event that the children want to spend more time with the mother, the father’s proposal was that time could increase gradually to one overnight time per week, that time to commence on Friday evening and conclude the following Saturday evening.

5. As a result of the father’s evidence, and as I have already mentioned, at the conclusion of the first two days of hearing I made interim orders by consent for E and F to spend overnight time with the mother from after school on Friday until 5.00 pm on Saturday, commencing on 26 September 2014. At the conclusion of the hearing the father proposed that the children could continue to spend time with the mother overnight each weekend in accordance with those interim orders made on 19 September 2014. When asked what time the father submitted he should spend with E and F if they were to live with the mother, he proposed that they spend half of each week, excluding weekends, with him.

6. The father also submitted at the conclusion of the final day of hearing that the children should not be separated and that the mother could see them whenever she wanted.

LEGAL PRINCIPLES

1. The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to children are set out in s 60B(1) of the Act as follows:

   The objects of this Part are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).

4. The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

5. I will first consider the primary considerations under s 60CC(2).

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

6. The Full Court, in reference to the interpretation of this provision, said in McCall & Clark (2009) FLC 93-405 at 83,476 as follows:

   … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is the “prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant …

   … we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. Ms I described E and F’s relationship with the mother in her most recent report in positive terms. Both girls were observed by Ms I to become overly excited when the mother entered the playroom, ceasing their activities and running to embrace her. They were both physically affectionate and their affection was reciprocated by the mother with hugs and kisses. Throughout the session ‘both children repeatedly interacted with their mother in an affectionate manner … The girls were obviously disappointed when their mother left and again they gave each other an affectionate warm hug before leaving.’ Even when the mother was observed with the children by Ms I for the purposes of the addendum to her first report and described by the children in negative terms, Ms I concluded, in relation to E and F, that it was because they were coached by the father and their older siblings to do so. She observed that E and F nonetheless engaged happily and warmly with the mother, and even B, C and D showed a ‘comfortable unity’ whilst sharing lunch with her. Ms I described E and F at the conclusion of the observation session as enquiring when they would be able to spend time with the mother again and reinforcing they would like to do so soon. Ms I noted that the unity demonstrated during the session was ‘in stark contrast to [the] extremely negative views the children had previous (sic) expressed regarding their mother during their interviews during the previous assessment.’

1. Although Ms I did not complete formal family observations for the preparation of her first report in April 2013 as the mother did not attend for her interview that day, she noted based upon her brief casual observations between the father and the children that ‘the children appeared to share a positive relationship with their father.’ Ms I’s observations of E and F with the father for the purposes of the preparation of her most recent report in August 2014 was that their time with the father:

   … was more reserved. They greeted him warmly with a hug and then return to their activities. [The father] initially appeared uncomfortable within the room and floated between watching the children engaged in activities and interacting with the family consultant. There was limited interaction between [the father] and the children [E and F], however the majority of this was observed to be respectful and positive.

2. On 19 December 2014 Ms I gave evidence that she observed the father, the mother and E and F in the reception area of Child Dispute Services on 15 December 2014 and that “both girls seemed to flow quite naturally between their parents”. Although this demonstrated some improvement, particularly in the relationship between the father and E and F, I have also had regard to the fact that Ms I said the children had reported that they had been given new dresses and bikes by the father the day before the interviews with her. 

3. I am satisfied that notwithstanding what appears to be the significant pressure placed upon E and F with respect to their relationship with the mother, that they have, at least until recently, been able to maintain a meaningful relationship with both of their parents. I cannot however be confident that this will be the case if the children continue to be exposed on an ongoing basis to the extremely negative views of the mother held by the father and the older children and subjected to pressure to conform to those views. 

4. Whilst I am satisfied that it would be to E and F’s benefit to have a meaningful relationship with both of their parents, I am satisfied that that should not be in circumstances which place them at risk of physical, psychological or emotional abuse and any orders must be crafted to give them the necessary protection from abuse and, in particular in this case, the risk of emotional and psychological abuse.

   (a)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

5. Although repeatedly referred to by the father during the proceedings, the historical allegations of the alleged physical abuse of the children by the mother and the allegations of family violence involving the parties that is summarised in detail in Ms I’s first report were not ultimately the subject of either the parties’ evidence in chief or cross-examination before me in anything other than a general sense.

6. However, the more recent allegations assume some significance, particularly having regard to the history of this matter, and have significant ramifications for the purposes of the determination the Court must make in these proceedings. They include E’s report to Ms I at her interview in July 2014 for the addendum report that she has a poor relationship with the father and that ‘she is fearful of her father, yelling at her, screaming in her face and getting very angry if she says anything positive about her mother.’ Ms I reported that, in exploring E’s fear of her father, E said ‘that her father regularly yelled at her and hit her, previously resulting in bruising on her arm.’ E also said that the father ‘says bad things about her mother, “using the F word” and she also feels as if she is pressured to say bad things about her mother, to prevent her father from becoming aggressive with her.’ F provided similar examples and descriptions of the father’s behaviour.

7. Although the father denied either physically abusing E or F or behaving as they each described and said they were lying, Ms I was concerned not just by what the children said but also by their presentation, so much so that, as I have already referred to, she notified the Department. It was the change in the children’s presentation since her previous interviews and the level of their hatred and anger towards the father and their older siblings which she found particularly disturbing. The children’s excitement when they saw their mother at the interviews in July 2014 for the most recent report was in stark contrast to the views they expressed about their father and their older siblings, albeit that they greeted the father warmly at the commencement of his session with them, and similarly in stark contrast to the quality of their relationship with the mother as described by the father.

8. As previously discussed, between the hearing of the matter in September 2014 and the matter being adjourned to enable Ms I to interview D, there was a further notification to the Department as a result of which the children were interviewed by SOCIT. According to the s 69ZW report prepared pursuant to the order made on 27 November 2014, a report was received in regards to concerns that F had allegedly sustained injuries as a result of the mother assaulting her with a broomstick. It was reported that F had disclosed that the mother ‘hit her with a stick to her chest and that [the] mother scratched F to her skin with her nail (sic). It was also reported that [the] mother was yelling, swearing and “always taking tablet.”’

9. The s 69ZW report went on to say as follows:

   Further assessment concluded this reported incident contained various elements of inconsistent and contradictory information from all parties, and thus it was unable to be determined how [F] sustained a bruise to her chest.

   Support services engaged with the family did note that [F] had presented with scratches to the arm and [F] speaking of mother smoking inside the house, being neglectful for example not playing with the children and hitting the children, however specific incidents were not discussed.

   In consultation with police (SOCIT), it was agreed there was no role for either Child Protection or police in relation to this report, and the report was closed at this time.  Police advised that three of the children were interviewed ([F], [B] and [E]) however the information between the three children was inconsistent.

   [F] had stated that she had been at her grandmother’s house and her mother hit her with a stick and she had a scratch to her right hand.  No visible injuries could be sighted by police except a scratch above the right elbow which appeared to be an old scratch given the scab was coming off.   [B] however stated that [F] had told her that her chest hurt and had sighted an oval shape bruise to [F’s] (sic) chest.

   [E] said that there was an incident at the grandmother’s home and said both she and her [F] (sic) were hit by their mother in the head and leg. No injuries were observed.

   Police had also spoken with the general practitioner who examined the girls and advised that F had a reddish mark to the chest however the general practitioner was not convinced the injury was caused as the parties explained.

   As a result of insufficient evidence to suggest [F] or her siblings were at immediate risk of harm together with the fact that the children were engaged with relevant support services, the department (sic) did not have any further child protection involvement.

10. As previously discussed, although counsel for the Independent Children’s Lawyer had informed the Court of the outcome of this notification, the matter was adjourned to enable the evidence to be before the Court and listed for mention on 11 December 2014 to allow for the parties to make any further submissions with respect to that evidence. However, rather than just confirming the information provided to the Court by counsel for the Independent Children’s Lawyer, the s 69ZW report raised new issues. It was reported that on 28 November 2014 a further report was received that E had disclosed that the mother hits her and F with a stick. E is reported to have said that when she was six years old, “I went to the hospital because she [the mother] put a knife to my neck, but she said it was a friend” and “I want to kill my mum.” E is reported to have said that ‘she is scared when staying with her mother on Fridays’. The police were contacted and spoke to the father, and E and F who advised the police that ‘the mother has been hitting them’. The police were reported to have said that they were aware that the parents were involved in proceedings in this Court and they did not consider that they had a further role in the matter at that time.

11. Although the file remains open with the Suburb P intake office, the Department considers that the appropriate venue for the parents to determine the parenting arrangements for the children is the proceedings before this Court and that it was intended that the file be closed with no further role for child protection.

12. In the s 69ZW report, the “Protective Assessment” of the matter by the Department was as follows:

    Child Protection has had a significant history of receiving reports with the family primarily in relation to both parent’s (sic) capacity to provide adequate care of the children. Many of the reports have pertained to allegations that the mother has behaved in a physically abusive manner to the children, and both parents have been unable to meet the children’s basic care needs. The children have lived in both parents’ sole care at different points in time, and both parents appear to want all the children in their primary care. It is acknowledged that it is likely the children have been emotionally and psychologically impacted by the ongoing parental acrimony and family law proceedings, however to date protective concerns have not required significant child protection intervention as support services have been referred to the family.

    The initial report received in 2010 regarding family violence between the mother and an older half sibling has been the exception, given the physical and emotional risks present to the children.

13. As what E and F were reported to have said appeared to contradict what they had previously reported to Ms I, a further appointment was made for Ms I to speak to the children and, if possible, to observe them with the father and mother. As I have already referred to, on 15 December 2014 Ms I interviewed E and F and observed them briefly and informally in the waiting room with both the mother and the father. Ms I gave evidence in relation to those interviews at the further hearing before me on 19 December 2014.

14. Ms I reported that F was “quite shocked” and appeared to know nothing of the alleged knife incident and told Ms I that she had “a new plan going forward”, which was to spend nine nights with the mother and nine nights with the father. Ms I said that it had been difficult to interview E and that in any future interview she would require the use of an interpreter. It was her evidence that although E understood concepts such as “good” and “bad”, she had difficulty understanding more complex concepts such as positive and negative and improved. E told Ms I that she remembered telling someone about the knife incident, but was unable to provide any information about the incident itself. She was described by Ms I as being quite anxious about what information she had provided and to whom, and the consequences of providing that information. E confirmed that she gave different information to different people and appeared confused and anxious about what information she should tell to whom and what would happen to that information, at one point asking Ms I “who would have this information, after this interview where does this information go?” Ms I concluded that E had reached a level of understanding where she knows if she tells people information then things are going to happen with that information.

15. Both E and F described the increased conflict between the father and Ms K, describing Ms K as now “mean” to the father, mean to them and a “bad mum”, in terms that Ms I said were similar to their earlier description of the mother. However, they also distinguished between Ms K being a bad mother at their father’s house, where they do not see her, but not at the mother’s house, where they do see her. Ms I noted the difference in the girls’ presentation from her previous assessment of them, describing E and F as “happy” and “buoyant”, particularly E even when recounting the alleged knife incident.

16. Neither the father nor the mother has witnessed the physical abuse that they say has occurred at the hands of the other, they each rely upon what they say they have been told by the children and, in the father’s case, the video and audio recordings, and they each deny the allegations made against them.  If, as it appears to be the case, the short video clip referred to in the s 69ZW report is the same video clip that the father relied upon in this case, I do not agree with the Department’s description of that video as showing the mother harming F. The video I viewed is very brief and, in my view, is consistent with the mother’s evidence that she was picking up F, not causing her some harm.

17. The audio recording of the incident between the mother and B and C, upon which the father relies, is similarly not particularly helpful, particularly in the circumstances of this case where the mother concedes the relationship between she and the two eldest children has broken down. The recording is in both English and Arabic – and the Arabic portions have since been translated and transcribed – and appears to be an ongoing argument between the mother and B and C, with C and/or B seemingly locking themselves in a room and refusing to come out at the mother’s repeated requests. When the recording was played in open court the mother conceded that the incident did happen but explained that she found B and C stressful and they had said very hurtful words to her. The recording is in my view consistent with the description of the conflict between the mother and B and C and is another example of what is described in the police reports as summarised by Ms I and the s 69ZW report as to their refusal to accept the mother’s rules.

18. Although, apart from the notifications with respect to Mr M, none of the children’s allegations of abuse by either the father or the mother have been substantiated by the Department, Ms I’s observations of the children’s behaviour and the conduct of their siblings during her interviews both for the addendum to her first report and her most recent report in August 2014, in my view, lend weight to what E and F say about the pressure placed upon them by the father and their older siblings.

19. I am not satisfied on the balance of probabilities that either E or F have been assaulted by the mother. These allegations are totally inconsistent both with what they reported to Ms I and more significantly Ms I’s observations of their presentation and their interaction with the mother. When interviewed separately by Ms I for the purposes of her most recent report, both E and F reported as follows:

    … that within their father’s care they are subject to extensive verbal and emotional abuse, described their father yelling in their faces, and incidents of physical discipline resulting in bruising. They recalled being exposed to [the father] degrading their mother in their presence, and expressed they are verbally and emotionally and chastised (sic) for making positive statements regarding her within the home. [E] and [F] reported that this behaviour is predominantly experienced from their father, but they also conveyed that these behaviours were endorsed by their older teenage sisters [B] and [C]. Furthermore, the children reported that they were pressured by their older sisters within the playroom to speak negatively about their mother to this family consultant during their last assessment …

20. What is of particular concern is that, as reported by Ms I, these repeated criticisms of the mother by the father and to a lesser extent B and C:

    … appear to have had a tremendously negative impact upon these relationships ... [E] is clearly feeling unsafe within her home which appears to be manifesting in high anxiety and fear. [E] pleaded to be able to live with her mother, which she views as safe (sic) and emotionally responsive environment.

    [F’s] presentation was more concerning than her older sister. It would appear that as a result of the reported verbal and emotional abuse, inclusive (sic) threatening behaviours she has experienced regarding the enforcement of the family’s predominantly negative view of her mother, she has violently rejected her family. She talks of “hating” her family and wanting to “kill” them. It is particularly extreme behaviour for a 6 year old child to have such violent thoughts and wishes for family members she primarily lives with and who meet her day to day needs.

    It is unlikely that such an extreme view has been encouraged in [F] by her mother as [F] indicated she has not expressed these desires with [the mother]. Furthermore, F suggested she wanted to kill her father to enable her to leave home (and live at the Family Court), not due to her strong desire to live primarily with her mother.

21. I am satisfied that E and F have been subjected to both emotional and psychological abuse, and possibly physical abuse, by the father and their older siblings and, in my view, it is much more likely that the children’s recent reports of physical abuse by the mother are a result of the emotional and psychological pressure placed upon them by the father and their siblings than any actual assaults by the mother. I am satisfied that this emotional and psychological abuse places these children at significant risk, as demonstrated by the behaviour of both E and F, their extreme views of their family, and the breakdown in their relationship with the father and their older siblings.   

22. I must now consider the additional considerations.

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

23. Although each of the parties asserts that the children express a negative view of the other parent and a preference to live with them, I accept the evidence of Ms I that, to the extent that both E and F were critical of the mother in the earlier interviews, they had been coached by both the father and their older siblings and, in particular, B and C and exposed to their negative views of the mother.

24. Whilst the views the children now express have changed significantly, I have already found that I am satisfied that the views they previously expressed were not consistent with their behaviour with the mother when observed by Ms I and are rather a result of the emotional and psychological pressure placed upon them and the influence of the father and their older siblings. I accept Ms I’s evidence that both E and F ‘have been subject to significant emotional pressure to reject their mother, which they have continued to resist, causing them despair and anguish.’

25. I am satisfied that the children are now expressing a more negative view of the father and those in his household, perceiving the mother as offering them a safe environment away from that pressure, as a direct result of the pressure placed upon them by the father and their older siblings. Ms I in her most recent report describes, and I accept her evidence, that the children are expressing a view about not wanting to live with the father and not just a preference for living with the mother. The weight to be given to the children’s views must be considered in this context.

    (b)the nature of the relationship of the child with:

    (i)     each of the child’s parents; and

    (ii)    other persons (including any grandparent or other relative of the child);

    (c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)     either of his or her parents; or

    (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Although there is no evidence other than the father’s general assertions as to the mother’s misuse of prescription medication that would suggest that the mother currently has a problems with drugs, her failure to comply in a timely manner with the Independent Children’s Lawyer’s request that she undertake a supervised drug screen and the positive result for opiates cannot be ignored. I am satisfied that these concerns can be addressed by continuing, at least in the short term, the requirement that the mother undertake supervised drug screens as requested by the Independent Children’s Lawyer.

2. Although, the mother’s evidence does give rise to some questions about her physical capacity to care for E and F, her evidence with respect to seeking assistance from both her own mother and her daughter Ms K, if necessary, is reassuring.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

3. Ms I gave evidence about what she said were the cultural factors in this case. In particular, it was her evidence that she thought it was unlikely that the older female children B and C would say anything negative about the father as the male head of their household, and that neither would Ms K as it would put her under emotional pressure from the father as well as her own husband. This accords with the evidence of the mother about Ms K supervising the father’s time, albeit that is no longer a viable option given the breakdown in the relationship between the father and Ms K. When counsel for the Independent Children’s Lawyer canvassed the suitability of Ms K acting as a supervisor with the mother in cross-examination it was clear that, although Ms K might be present, she would not be able to say something to the father or to remove the children from his care if he were to say or act inappropriately. This highlights the difficulty E and F would be likely to have, particularly as female children, on an ongoing basis either rejecting the pressure placed upon them by the father or reporting what has occurred. 

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

4. This is not a relevant consideration in this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

5. I have already dealt with this consideration in some detail. The father’s most significant failure as a parent is his failure to promote or facilitate the children’s relationship with the mother. However, he has also failed to keep the mother informed in relation to such matters as the children’s health and education.

6. Although I cannot predict with any certainty whether the mother would act responsibly vis-à-vis the father if E and F live with her, as I have already said I am somewhat reassured by the history of the father’s involvement with the children after the parties physically separated in 2008. 

   (j)any family violence involving the child or a member of the child’s family;

7. Although the mother alleges that the father was physically violent to her during the marriage, she gave only one specific example, which is denied by the father. The historical allegations of family violence by the father to the mother did not play a significant part in this case and there are no recent allegations.

8. There are, however, competing allegations relied upon by the parties on the basis of reports by the children of family violence and which I have already discussed in some detail in these reasons. Although I am not satisfied on the balance of probabilities that the mother has assaulted the children, as I have already discussed earlier in these reasons I have more serious concerns given the more recent reports by E and F about the father’s conduct. 

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

9. There are no current family violence orders. At the hearing before me on 19 September 2014 the Independent Children’s Lawyer tendered a then in force intervention order naming the father and all five children as protected persons which was made upon application by the police. That order was due to expire on 6 October 2014 unless otherwise extended or varied prior to that time. On the evidence before me it does not appear that that order was extended.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

10. In a perfect world the Court would make final orders in this case however, notwithstanding Ms I’s evidence as to the possible risk to E and F of remaining in the father’s care, the changes proposed are significant and there remain some questions about the mother’s capacity to care for the children on a full-time basis and the father’s capacity to maintain a relationship with the children without placing pressure upon them or attempting to influence them against the mother.

11. I have had significant regard to the fact that since the first day of the hearing the father has issued proceedings for contravention and there have been two further notifications to the Department alleging that the E and F have been assaulted by the mother. This does not bode well for the future whether E and F remain with the father or live with the mother and supports the need for the father to spend supervised time with the E and F at least in the interim. 

12. Although I have some reservations about not making final orders particularly given the number of times in this case that the children have been interviewed and how long these parties have been involved in proceedings in this Court, I am satisfied that it is appropriate to make interim orders and review the matter after a period of time, both with respect to them living with the mother and in relation to the time they spend with the father.

    (m)any other fact or circumstance that the court thinks is relevant.

13. There are no other relevant facts or circumstances.

14. I must also consider s 60CC(4).

    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a)has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child; and

    (b)has facilitated, or failed to facilitate, the other parent:

    (i)     participating in making decisions about major long-term issues in relation to the child; and

    (ii)    spending time with the child; and

    (iii)     communicating with the child; and

    (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

15. I have already discussed this issue in some detail in considering the primary and additional considerations.

16. Having discussed the fact that the father has not acted responsibly to involve the mother in decisions in relation to the children, I am also satisfied that the mother has not necessarily sought to actively participate in the decisions with respect to the children, including E and F. Although it is fairly easy to understand why the mother may have not sought to participate with respect to the older children, particularly B and C, it is somewhat harder to understand with respect to E and F. However, I have also had regard to what Ms I described as the cultural issues in this case and how the mother might perceive her role and I note that these issues, as well as the mother’s limited English, may offer some explanation for her failure to do so.  I do not want to otherwise repeat the matters I have addressed previously in these reasons.

D

1. Both the mother and the Independent Children’s Lawyer opened their cases on the basis of there being orders sought that D spend time with the mother.

2. However, when Ms I interviewed D on 13 October 2014 she said that he stated very clearly that he “didn’t want to see mum, didn’t want to speak to mum and that mum was a ‘bad mum’ and that she had done ‘bad things’”. Ms I reported D as saying “I will never forgive her for what she has done.”

3. Whilst D was able to explain how he may do bad things and that others may also do bad things and that he would be able to forgive them, it was his view that “he would be unable to forgive his mum because she had done really bad things.” Ms I expressed concern that such dogged thinking has led D to believe that if he does bad things he should not be forgiven either and that if you do something bad it is okay never to see them again and never be forgiven. Ms I described this as a concerning place for D to be and said it is going to create difficulties for him in the future and his emotional and social maturity is behind.

4. Although Ms I reported that both F and E spoke very highly of D when she interviewed them, she said that when she interviewed D in October 2014 he said that he did not spend much time with the younger girls, that he did not know what they liked and did not know what they were doing. It was Ms I’s evidence that the younger children were somewhat peripheral in his life. D reported spending most of his free time with his father, playing chess and soccer, and also spending time with cousins who live nearby. When asked by counsel for the Independent Children’s Lawyer whether there would be a significant impact on D if he did not spend time with his younger sisters it was Ms I’s evidence that this would not impact D and that she found this disappointing for E and F.

PARENTAL RESPONSIBILITY

1. Both the father and the mother seek orders for sole parental responsibility, albeit the mother’s application is with respect to E and F and not all five children. Parental responsibility is defined in s 61B of the Act as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’

2. There is a statutory presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds for believing that a parent has engaged in abuse of the child or family violence. ‘Abuse’, in relation to a child, is defined in s 4 of the Act as follows:

   (a)an assault, including a sexual assault, of the child; or

   (b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)serious neglect of the child.

3. The presumption may be rebutted if the Court is satisfied that it would not be in the child or children’s best interests for their parents to have equal shared parental responsibility.

4. Ms I’s observations of E and F for the purposes of the preparation of her most recent report dated 4 August 2014 and her recent interviews with the children raise significant concerns as to both their current and future welfare. I accept Ms I’s evidence with respect to her concerns about the children based upon which I am satisfied that the children have been exposed to and suffered “serious psychological harm” as a direct consequence of the father’s failure to facilitate and promote the children’s relationship with the mother.

5. In any event, I am satisfied that even absent that psychological harm it would not be in the children’s best interests for the father and the mother to have equal shared parental responsibility of the children who are in their primary care even on an interim basis. The father and the mother do not communicate and I am satisfied that they are unlikely to have the capacity to communicate in the future with respect to long-term issues in relation to the children or otherwise. In all of the circumstances, I am satisfied that it is in E and F’s best interests for the mother, with whom they will be living at least in the interim, to have sole parental responsibility for them. 

CONCLUSION

1. These children have been the subject of proceedings in this Court since early 2012. There has been significant conflict and turmoil in their young lives which I am satisfied has had an impact on their welfare. I am satisfied that, as submitted by counsel for the Independent Children’s Lawyer, the impact of that conflict and the ongoing proceedings is having upon them appears to be escalating.

2. I am satisfied that, notwithstanding the father’s closing submission that the mother can see E and F whenever she chooses, these children’s relationship with the mother will not be supported, either by the father or their older siblings, if they remain in the father’s care. I do not share the view expressed by Family First as reported by the Department that the father has the capacity with their assistance to address these issues. History appears to be repeating itself notwithstanding the father’s engagement with Family First.  I have, on the other hand, some confidence that if E and F live with the mother that she will promote and facilitate their relationship with the father albeit I am satisfied that circumstances require the time the father spends with E and F to be somewhat limited. There are some possible questions about the mother’s physical capacity to care for E and F given her current health issues and, although I accept her evidence that she can rely upon her daughter Ms K and her own mother for assistance, it is for this reason that I propose to make interim orders.

3. Although the father and the mother consented to interim orders on 19 September 2014 which restrained the mother from bringing the children into contact with her son Mr M there was no evidence before me other than references to Mr M in Department notes in 2010 and general assertions by the father as to his drug taking that would support the Court making an order in those terms on an ongoing basis. I accept the mother’s evidence that Mr M does not live with her and I am satisfied that if he were to present a risk to the children she would take the appropriate measures to protect them.  

4. I also propose to make interim orders that the father spend supervised time with E and F. This will protect E and F from any attempt by the father to undermine the mother’s care of them, whether intentional or unintentional. This will give the father the opportunity, should he chose to do so, to address some of the issues that have resulted in the Court making these orders and consider what he can do to ensure that E and F have a relationship with him and their older siblings that does not undermine their relationship with the mother and does not expose them to psychological harm.

5. In relation to the elder children B, C and D, I also propose to make interim orders that reflect the current arrangements – namely, that the father have sole parental responsibility for those children and that they live with him. The previous order for B, C and D to spend time with the mother as agreed between the parties in writing and in accordance with their wishes otherwise remains in full force and effect.

6. The previous order for the children’s names to be placed on the Airport Watch List also remains in full force and effect as neither the Independent Children’s Lawyer nor the parties addressed me on that issue. I am satisfied that these orders should not be discharged pending the further hearing of this matter.

7. There are also orders that restrain the father and the mother from denigrating each other or members of their respective families and from using profane or offensive language in the presence or hearing of the children. The mother is restrained from smoking indoors or in any motor vehicle whilst the children are in her care.  These orders were made by consent on 10 December 2012.  On 15 August 2014 I made an order restraining the father and the mother from discussing these proceedings with or in the presence or hearing of the children. Neither the father nor the mother nor the Independent Children’s Lawyer made submissions with respect to these orders, although I note that the mother in her further amended initiating application sought orders that the parties be restrained from denigrating each other or their families and from discussing these proceedings with the children or in their presence or hearing. I am satisfied that in the interim all of these orders should remain in force.

8. On 6 August 2013 when this matter was transferred to this court an order was made by consent that B, C, D, E and F continue to attend the Supporting Children After Separation Program at the Family Mediation and Counselling Victoria and that the Independent Children’s Lawyer be at liberty to provide the counsellors at that service with copies of the family reports prepared by Ms I dated 19 April 2013 and 24 July 2013. I am satisfied that the children have attended that program as ordered however, as the arrangements for the children pursuant to the orders I propose to make will have changed significantly, it may be that there are different arrangements for counselling and support which may be necessary. I propose in those circumstances to discharge paragraph 6 of the orders made 6 August 2013 and order in the interim that the children in the care of the father and the mother attend such counselling as may be recommended by the Independent Children’s Lawyer.

9. Counsel for the Independent Children’s Lawyer also sought an order permitting the Independent Children’s Lawyer to provide a copy of my reasons for judgment and a copy of Ms I’s three reports in this matter to the Department. I am satisfied given the frequent notifications to the Department that it is appropriate to make that order.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 20 February 2015.

Associate: 

Date:  20 February 2015