BARRY & KOMINE & ORS

[2012] FMCAfam 1137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY & KOMINE & ORS [2012] FMCAfam 1137

FAMILY LAW – Parenting – two children aged nine and seven years, who currently reside with maternal grandparents – wife incarcerated in 2010 for the attempted murder of husband and released on parole in April 2012 – husband has history of violence and substance abuse and has failed to undertake supervised drug screens since orders made in 2010 – children emotionally traumatised by father’s violence and mother’s incarceration and have required ongoing counselling since January 2011 – parties agree children should remaining living with maternal grandparents until wife’s parole expires in February 2014 – orders made for wife and maternal grandparents to have equal shared responsibility, for the children to live with the maternal grandparents until the expiration of the wife’s parole in February 2014, whereupon the wife have sole parental responsibility for children and the children live with her – orders made for husband to have supervised time with the children and leave granted to husband to seek unsupervised time in the event the husband satisfies certain preconditions, being to provide clean drug screens and regularly spend time with [X] and [Y] over a 12 month period.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Goode & Goode (2006) FLC 93-286

Applicant: MR BARRY

Respondent: MS KOMINE

Intervenors: MRS & MR K

File Number: MLC 3110 of 2010

Judgment of: Bender FM

Hearing dates: 26, 27 & 28 September 2012

Date of Last Submission: 28 September 2012

Delivered at: Melbourne

Delivered on: 2 October 2012

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent: Hogg & Reid

Counsel for the Intervenors: Ms Williams

Solicitors for the Intervenors: Berry Family Law

Counsel for the Independent Children’s Lawyer: Mr Kiernan

Solicitors for the Independent Children’s Lawyer: T J Mulvany & Co

ORDERS

1. The maternal grandparents and the wife have equal shared parental responsibility for the children [X] born 2003 (“[X]”) and [Y] born 2004 (“[Y]”).

2. Upon the maternal grandparents and the wife making decisions relating to such shared parental responsibility including but not limited to decisions relating to [X] and [Y]’s education and health or any proposal to relocate either or both of [X] and [Y] to such extent that [X] or [Y] would be required to change their school, the maternal grandparents and the wife shall advise the husband in writing as soon as practicable of such decision.

3. Until 11 February 2014, [X] and [Y] shall live with the maternal grandparents.

4. From 11 February 2014 and conditional upon:

   (a)the wife not having breached any conditions of her parole; and

   (b)save for any traffic offence, the wife not having experienced any further court event in the criminal jurisdiction;

   (c)the wife notifying the maternal grandparents of any proposed new address for residence of herself and the maternal grandparents consenting to such proposed new residence in writing; and

   (d)the wife not resuming the use of illicit substances;

   the wife have sole parental responsibility for [X] and [Y], and [X] and [Y] live with the wife.

5. For the purposes of order 4(d) herein, the wife shall undergo no less than three supervised urine drug screens in the nine months prior to

   
   

   11 February 2014 upon the written request to do so received from the Independent Children’s Lawyer and shall provide the

   
   

   Independent Children’s Lawyer and maternal grandparents with the results of such screens as soon as practicable after the receipt of the result of such screens.

6. For the purposes of order 5 herein, the Independent Children’s Lawyer shall request the wife undergo no less than three random drug screens in the nine months prior to 11 February 2014.

7. The husband spend time and communicate with [X] and [Y] as follows:

   (a)not more than fortnightly with such time to be supervised by
   [A] Community Services or such other independent contact service provider including a professional contact centre, at such venue and at such times as shall be agreed between the relevant supervisor, the husband, the wife and the maternal grandparents, with such supervision and any reporting in relation to such supervision to be at the cost of the husband; and

   (b)as otherwise agreed between the husband, the maternal grandparents and the wife in writing.

8. When the husband spends time with [X] and [Y] pursuant to order 7(a) herein, the extended paternal family shall not be in attendance without the written consent of the maternal grandparents and the wife.

9. In the event that:

   (a)the husband undertakes for a period of 12 consecutive months supervised urine drug screens within 48 hours of a written request to do so received from the Independent Children’s Lawyer and upon discharge of the Independent Children’s Lawyer from the wife, that the results of such screens are clear of illicit substances and the husband provides the results of such screens to the Independent Children’s Lawyer, the wife and the maternal grandparents as soon as practicable after the results are received by the husband; and

   (b)the husband attends time with [X] and [Y] not less than once each month for 12 consecutive months; and

(c)the parties are unable to agree to the living arrangements for [X] and [Y] through family mediation;

the husband shall be at liberty to make application to the Court seeking orders that [X] and [Y] spend unsupervised time with him.

1. For the husband’s drug screens referred to in order 9(a) herein to be satisfactory, they must be clearly supervised, have an appropriate creatine level and the husband must provide photo identification to the collecting centre.

2. For the purposes of order 9(a) herein, the Independent Children’s Lawyer or the wife shall request the husband to undergo random supervised drug screens no less than once every two months.

3. If requested by the husband for the purposes of order 7(a) herein, the wife and the maternal grandparents do all things necessary and sign all such documents as may be required to secure a place at a supervised contact centre.

4. The maternal grandparents and the wife do all things necessary to ensure that [X] and [Y] continue to attend upon their counsellor Ms S with such frequency and for as long as recommended by Ms S or with such other counsellor as recommended by Ms S.

5. The maternal grandparents shall ensure that the Principal of any school from time to time attended by either [X] or [Y] or both of them, any medical practitioner attended by either [X] or [Y] or both of them and any allied health professional attended by either [X] or [Y] or both of them is in receipt of:

   (a)a copy of this order; and

   (b)a copy of any Reasons of Decision furnished by the Court in this matter.

6. The mother shall comply with all conditions from time to time imposed upon her as a consequence of her parole.

1. The maternal grandparents and the wife provide (and not revoke) an authority and direction to [X] and [Y]’s school, medical practitioners and counsellors, to promptly forward to the husband, at the husband’s request and expense, copies of all reports, newsletters, correspondence and notices and the husband be at liberty to contact [X] and [Y]’s school, medical practitioner and counsellors to discuss [X] and [Y]’s progress.

2. The maternal grandparents and the wife keep the husband informed, as soon as practicable, of:

   (a)any change in [X] and [Y]’s residential address and/or telephone number;

   (b)the details of [X] and [Y]’s treating medical practitioner;

   (c)the details of [X] and [Y]’s school, including but not limited to name, address and teacher; and

   (d)any incident or illness requiring either of [X] or [Y] to have medical treatment, other than treatment of a minor and routine nature.

3. The appointment of the Independent Children’s Lawyer be extended to 28 February 2014 and IT IS REQUESTED that in the particular circumstances of this matter, Victoria Legal Aid fund same.

AND THE COURT NOTES THAT:

A.The wife advised the Court that she is currently residing with the maternal grandparents and intends to remain living with the maternal grandparents until at least 11 February 2014.

B.For the purposes of order 8 herein, the parties shall be guided by [X] and [Y]’s counsellor as to when the extended paternal family shall be invited to spend time with [X] and [Y].

C.

Any further application made in this matter be listed before

Federal Magistrate Bender, if possible.

IT IS NOTED that publication of this judgment under the pseudonym Barry & Komine & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 3110 of 2010

MR BARRY

Applicant

And

MS KOMINE

Respondent

And

MRS & MR K

Intervenors

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter relates to the living arrangements for the children,

   
   

   [X] born 2003 (“[X]”) and [Y] born 2004 (“[Y]”). 

2. When [X] and [Y]’s parents separated in or around June 2009, [X] and [Y] remained living in the wife’s primary care and spent no time with the husband. 

3. The husband commenced these proceedings in April 2010 seeking orders that [X] and [Y] live week-about with each of their parents. 

4. On 29 June 2010 orders were made that [X] and [Y] to live with the wife and spend time with the husband, supervised by [A] Family Services at the husband’s expense.

5. After separation, the wife sought assistance to have the husband hurt or killed.  The people she approached told the husband who then reported her threats to the police.  Police set up a covert operation, during which the wife reiterated her wish to have the husband killed.  

6. In September 2010 the wife was taken into custody on charges of incitement to cause injury, incitement to murder, obtaining property by deception, theft and possession of a drug of dependence.

7. On 29 September 2010 orders were made that provided for [X] and [Y] to live with the maternal grandparents, who are the intervenors in these proceedings, and for [X] and [Y] to continue to spend time with the husband supervised by [A] Family Services. 

8. On 1 June 2011, having entered a plea of guilty to the charges, the wife was sentenced to a maximum period of imprisonment of three years and five months with a non-parole period of one year and seven months. 

9. The proceedings in relation to the living arrangements for [X] and [Y] before this Court were adjourned by the consent of all parties during the period of the wife’s incarceration.  The parties also consented to orders that the maternal grandparents have sole parental responsibility for [X] and [Y], that [X] and [Y] continue to live with the maternal grandparents and spend time with the husband supervised by [A] Family Services. 

10. The wife was released from the [omitted] Centre on 13 April 2012 and she has been living with the maternal grandparents, [X] and [Y] since that time.  The wife’s parole expires on 11 February 2014 and the wife advises the Court that she intends to continue to live with the maternal grandparents at least until her parole expires. 

1. The maternal grandparents and the wife are now seeking orders as follows:

   (1)the maternal grandparents and the wife share equal parental responsibility for [X] and [Y];

   (2)    that [X] and [Y] live with the maternal grandparents;

   (3)as from 11 February 2014 and subject to the wife not breaching any of the conditions of her parole and not coming to the attention of the police, that the wife have sole parental responsibility for [X] and [Y] and they live with her;

   (4)that [X] and [Y] spend time and communicate with the husband not more than fortnightly, supervised by [A] Family Services or such other professional contact service, including a contact centre at the husband’s expense; and

   (5) that in the event the husband has

   (a)undergone supervised urine drug screens within 24 hours of being requested to do so by the Independent Children's Lawyer, upon discharge of the Independent Children's Lawyer at the request of the wife, and the results of such screens are clear of illicit substances for a period of

   
   

   12 consecutive months; and

   (b) the husband has spent supervised time with [X] and [Y] not less than once per month for 12 consecutive months,

   then the husband be at liberty to seek orders that [X] and [Y] spend unsupervised time with him.

1. The Independent Children's Lawyer supports the application of the wife and maternal grandparents, save that he proposes that upon the husband satisfying the pre-conditions of 12 months of clean drug screens and 12 months of monthly supervised visits, the husband’s time with [X] and [Y] be unsupervised for four hours each alternate weekend and, in the event that [X] and [Y]’s counsellor at the Victorian Association for the Care and Resettlement of Offenders (“VACRO”) is of the view that it would be inappropriate for the husband’s time to be unsupervised, the wife and/or maternal grandparents have liberty to apply to seek orders that the husband’s time with [X] and [Y] continue to be supervised.

2. The husband agrees that orders be made for the wife and maternal grandparents to have shared parental responsibility for [X] and [Y], and for [X] and [Y] to live with the maternal grandparents until 11 February 2014. 

3. The husband however seeks orders that until 11 February 2014, [X] and [Y] spend unsupervised time with him each Friday for four hours after school.  The husband proposes that such unsupervised time start with the assistance of [A] Family Services whereby they explain the move to unsupervised time to [X] and [Y] and monitor [X] and [Y] for any discomfort. 

4. The husband seeks orders that from 11 February 2014 he and the wife have equal shared parental responsibility for [X] and [Y], and that [X] and [Y] live with each of he and the wife on a week-about basis. 

5. By way of further brief background, the husband was born [in] 1976 and is 36 years of age.  He was born in [omitted], moving to Australia when he was seven. 

6. The husband is self-employed [occupation omitted] but at this time is dependent on Newstart Allowance. 

7. The husband currently resides in his rented factory premises, having converted the small factory kitchen into what I would describe as a bed-sit.  There is a toilet but no bathroom.

1. The wife was born [in] 1978 and is 34 years of age.  As noted previously, since being released on parole in April 2012 the wife is living with her parents and [X] and [Y] in the maternal grandparents’ home.  The wife is currently engaged in home duties. 

2. The maternal grandfather was born [in] 1946 and he is 65 years of age.  He is employed as a [omitted] working five days a week from 11.00 pm to 7.00 am. 

3. The maternal grandmother was born [in] 1955 and is 56 years of age.  She is employed as a [omitted].  She works 14 days in each month on a roster that makes provision for approximately two or three days on and two days off.  She works from 7.00am to 8.00pm.

4. The maternal grandparents are of [omitted] background.

5. The husband and wife commenced cohabitation in 2001 and married [in] 2003. 

6. It would appear that both parents used illicit substances, including marijuana, cocaine and amphetamines, during their relationship and also consumed alcohol to excess. 

7. It is the wife’s evidence that she discontinued her drug use when pregnant with the children but resumed her use of illicit substances in 2008. 

8. The parties agree that their relationship was volatile with many heated arguments, often in front of [X] and [Y]. 

9. It is the wife’s evidence that she was subjected to ongoing domestic violence at the hands of the husband during the course of the relationship to which the children were exposed.  It is the wife’s evidence that she suffered injuries at the hands of the husband and that she was required her to attend hospital for treatment on at least two occasions. 

10. The husband denies that he was ever violent to the wife or the children and that the wife’s injuries were as a result of her falling when alcohol or drug affected.

1. The parties separated in June 2009.  The husband returned to the former matrimonial home in July 2009 but the parties did not reconcile. 

2. Even though separated, the husband, the wife and [X] and [Y] went on a family holiday to [omitted] in October 2009 during which the wife reports she was subjected to further violence at the hands of the husband. 

3. In November 2009 the husband returned to the former matrimonial home late at night, after returning from a trip to [omitted].  It is the wife’s evidence that the husband assaulted her and then went to the maternal grandmother’s home where [X] and [Y] were having a sleepover.  The husband pushed and verbally abused [X] and [Y]’s great-grandmother who had answered the door to the husband.  The police were called to the maternal grandparent’s home at this time. 

4. As a result of that incident, both the wife and the maternal

   
   

   great-grandmother obtained intervention orders against the husband; these orders included [X] and [Y].

5. Following the November 2009 incident, the husband did not spend time with [X] and [Y] until orders were made for supervised time in June 2010. 

6. What thereafter ensued in this family has already been set out previously in this judgment.

7. After the wife’s incarceration, [X] and [Y] commenced counselling with Ms S through VACRO on 7 January 2011.  Their counselling has been ongoing since that time and will continue until at least the end of 2014.

The Evidence

The husband 

1. The husband relies on his affidavits filed in these proceedings on

   
   

   12 March 2010, 28 May 2010, 18 September 2012 and

   
   

   24 September 2012. 

2. It is the husband’s evidence that [X] and [Y] thoroughly enjoy their time with him, and that they are not afraid of him in any way. 

3. It is the husband’s evidence that [Y], in particular, would choose to spend more time with him and does not see why he is unable to see his father more often. 

4. It is the husband’s evidence that there has been a considerable downturn in his business due to changes in government policy and that he has been dependent on Newstart Allowance for most of this year.  As a result, he is currently in arrears with the rental on the factory premises he resides in.  This has also meant that the husband has only been able to afford to spend supervised time with [X] and [Y] every four to six weeks this year.

5. The husband provided the Court with a copy of the results of a supervised drug screen, dated 21 September 2012, which was clear of illicit substances.  The husband conceded that this is the first drug screen he had undertaken since orders were made that he and the wife undergo supervised drug screens in June 2010. 

6. The husband acknowledged that he had received multiple requests from the wife’s solicitors and the Independent Children's Lawyer that he undertake drug screens.  He also agreed that on 20 September 2010 he appeared in person in Court and was directed by me to undergo a supervised drug screen within 48 hours and that I explained on that occasion that if he failed to do so the Court would conclude he was continuing to use illicit substances.  The husband agreed that, save for the test on 21 September 2012, he has failed to undertake any of the drug screens he has been requested to and as ordered by me. 

7. The husband’s evidence to the Court was that, whilst he has been under enormous emotional and financial pressure in the last two years, he had no reasonable excuse or explanation as to why he had failed to comply with the Court’s orders and undertake supervised drug screens as directed.  The husband indicated a willingness to undertake weekly or daily drug screens into the future if the Court required him to do so in order to see [X] and [Y].

1. The husband agreed that he has used illicit substances, including marijuana, speed, cocaine, heroin and amphetamines.  The husband’s evidence as to when he last used these drugs was unclear, with the husband intimating it was probably some months ago. 

2. The husband denied that he was ever violent to the wife or the children during their relationship.  It is the husband’s evidence that the wife’s behaviour was severely impacted by excessive alcohol and drug use and that any bruising or injuries the wife may have suffered was as a result of falls she had when she was under their influence. 

3. The husband was cross-examined at length on the many instances of domestic violence he allegedly perpetrated on the wife during their relationship, as detailed in the wife’s affidavit filed on 17 May 2010. 

4. The husband’s response to each allegation was he could not recall, followed by a blanket denial that he had ever been violent towards the wife or [X] and [Y].  The husband indicated that he does have some problems with his memory and was open to the suggestion that this may, in part, be because of his past drug use. 

5. Interestingly, the husband was able to recall instances with precision where he alleged the wife was violent towards him and the husband had needed to restrain her.  

6. It is the husband’s evidence that the wife was a wonderful person but when under the influence of drugs or alcohol, like most people, the wife would change and become violent.  When asked if “like most people” the husband also behaved differently when he drinks or is drug-affected, the husband replied, “No”.

7. The husband agreed that during the relationship he and the wife had heated arguments to which the children had been exposed. 

8. It is the husband’s evidence that the last two years have caused him to be extremely emotionally upset, even emotionally unbalanced.  During this time his marriage has broken down and he has only spent limited time with his children, his former wife was gaoled for his attempted murder, his brother died from an alcohol-related illness, his sister is extremely ill also with an alcohol-related illness and his business has incurred serious financial difficulties, placing him in a precarious financial position.  It was apparent from the husband’s evidence that the husband sees himself as very much a victim at this time.

9. The husband was particularly scathing of the maternal grandparents, the maternal grandmother in particular.  Whilst acknowledging that the maternal grandparents had looked after [X] and [Y], in paragraph 11 of his affidavit, filed 24 September 2012, he deposes:

   I will continue to allege that Mrs K has a questionable character, also a person of no Morals.

10. The husband’s evidence was most unsatisfactory.  The husband’s denial of violence had no credibility.  The husband’s protestations that the wife was responsible for her injuries because she fell whilst drug or alcohol affected is not credible, as is his evidence that whilst the wife behaved badly when drug and alcohol affected, his behaviour was unremarkable when similarly affected.

The wife

1. The wife relied on her affidavits filed 17 May 2010, 3 July 2012 and 12 September 2012. 

2. It is the wife’s evidence that her relationship with the husband was marked by violence, arguments and excessive drug and alcohol consumption, to which [X] and [Y] were exposed. 

3. The wife acknowledges that in the two years leading up to her incarceration, the wife was using illicit substances and drinking alcohol to excess. 

1. It is the wife’s evidence that she is now drug free and that she has undergone all drug screens requested of her in these proceedings, even when in gaol, and that all drug screens were negative for illicit substances.

2. It is the wife’s evidence that as a condition of her parole, she was required to attend upon a drug and alcohol counsellor. This counselling has now ceased on the recommendation of the counsellor, who advised it is no longer needed. 

3. It is the wife’s evidence she continues to attend her psychologist,

   
   

   Mr W, fortnightly. 

4. It is the wife’s evidence that she intends to live with the

   
   

   maternal grandparents, at least until her period of parole ceases in

   
   

   February 2014. 

5. The wife supports [X] and [Y]’s relationship with the husband but only in circumstances when [X] and [Y] will be safe.  The wife is concerned that the husband continues to use illicit substances, especially given his failure to undergo drug screens. 

6. The wife indicated to the Court that she would continue to be guided by Ms S, [X] and [Y]’s counsellor, in relation to how [X] and [Y] are progressing in their relationship with the husband and their capacity to manage unsupervised time with him, given the emotional trauma suffered by them, and especially [X], arising from their exposure to the violence in the parental relationship and the loss of their mother when gaoled.

The maternal grandparents

The maternal grandmother

1. The maternal grandmother relied on her affidavits filed

   
   

   16 September 2010 and 21 September 2012. 

2. It is the maternal grandmother’s evidence that she and her husband have been closely involved with [X] and [Y] since birth, as the parents lived [near] their home. 

1. It is the maternal grandmother’s evidence that whilst she has supported and will continue to support the wife, she does not seek to justify the wife’s criminal activities and is very disappointed in the wife’s drug use and the distress and upheaval the wife’s behaviours have caused her family, and [X] and [Y] in particular. 

2. It is the maternal grandmother’s evidence that she wants [X] and [Y] to have a relationship with the husband. 

3. It is the maternal grandmother’s evidence that when [X] and [Y] initially commenced supervised time with the husband, [Y] was delighted to attend but [X] was most reluctant, ending up in the sick bay at school and complaining of stomach aches. 

4. It is maternal grandmother’s evidence that five to six months after commencing spending time with the husband, [X], with the assistance of her counsellor and school, became much happier to spend time with the husband and that both children are now excited to go to the husband and happily report their activities with the husband when they return.

5. The maternal grandmother was cross-examined in relation to concerns raised by Ms A, the contact supervisor, that the maternal grandmother had insisted [X] know everything about the Court proceedings. 

6. It is the maternal grandmother’s evidence that she has never discussed Court matters in front of [X]. However, it is the maternal grandmother’s evidence that if [X] asks her specific questions, then she answers them.  This was especially so in relation to the wife’s criminal matters.  It is the maternal grandmother’s evidence that given the coverage in the papers at the time and the comments being made at school, the maternal grandmother felt it was much better that [X] was told sensibly by her family what was happening, rather than hearing it from the rumours and chatter in the school yard.

7. The maternal grandmother impressed as a loving and caring grandparent, who, with her husband, has provided [X] and [Y] with a stable, secure and loving home in extremely difficult circumstances. 

8. The maternal grandmother clearly supports [X] and [Y] having a positive relationship with both parents, but remains concerned that until the husband complies with Court orders that satisfy the husband is drug free and [X]’s counsellor confirms [X]’s readiness to do so, such time with the husband remain supervised. 

The maternal grandfather

1. The maternal grandfather relied on his affidavit filed 24 September 2012. 

2. The maternal grandfather, as did his wife, impressed as a loving, caring grandparent who wants only what is in the best interests of [X] and [Y].

Ms A

1. Ms A is the proprietor of [A] Community Services and has been supervising the husband’s time with [X] and [Y] since June 2010. 

2. An affidavit sworn by Ms A on 25 September 2012 was filed by the Independent Children’s Lawyer on that day. 

3. Ms A also gave viva voce evidence at the hearing of this matter and provided the Court and the parties with a further report, dated

   
   

   24 September 2012. 

4. In her report dated 24 September 2012, which relates to the time [X] and [Y] have spent with the husband between February and September 2012, Ms A sets out the following:

   ·There have been 7 periods of Time Spent each of approximately 2 hours.

   ·There has been approximately 4 to 5 weeks between each occasion.

   ·Time Spent has continued to be very positive.

   ·Both children appear to be very happy and comfortable. 

   ·On most occasions, both children run up and greet there father.

   ·[Mr Barry] always greets them positively and affectionately and has lots of encouragement and praises for both children… there are lots of kisses and cuddles. 

   ·There is a lot of laughing and playful banter. 

   ·The children’s grandmother [Mrs K] (sic) has always been very positive at handover.  The children always appear happy and excited about spending time with their father. 

   ·I have observed on the last few occasions when their mum [Ms Komine] (sic) has been home and getting the children ready to spend time with their father, they appear very serious and reserved; no smiles or chatter.

5. In her report of 24 September 2012, Ms A sets out the circumstances of a visit between the husband with [X] and [Y] on 9 February 2012. 

6. On that occasion, the paternal grandmother and two of [X] and [Y]’s paternal cousins arrived at the husband’s home unannounced whilst [X] and [Y] were spending supervised time with the husband. 

7. I note that the attendance of the husband’s extended family has been a vexed issue for some time.  The existing orders are silent on this issue.  The husband wants [X] and [Y] to be able to spend time with the extended paternal family.  This was especially so when the husband’s brother was terminally ill in hospital.  There has been no agreement reached between the husband and the maternal grandparents that this could occur, as [X], in particular, is most resistant to spending time with the extended paternal family.

8. It is Ms A’s evidence that on the February date when the paternal grandmother arrived, [X] screamed and yelled, “I don’t want to see them.  I hate everyone in dad’s family”.  [X] ran and hid in the toilet and refused to come out until Ms A was able to persuade the paternal grandmother to leave. 

9. It is Ms A’s evidence that the husband became very upset and angry after this incident and that the husband badgered Ms A to the extent that she ended up in tears.  It was Ms A’s evidence that this did not occur in front of [X] and [Y], but that when [X] saw that Ms A had been crying, it was [X] who comforted her.  Ms A notes the husband subsequently apologised to her for his behaviour on this occasion.

10. Ms A gave evidence of a conversation with the husband whereby the husband indicated to Ms A that he was aware the Independent Children’s Lawyer wanted him to undergo drug screens and that whilst the husband was off the drugs, the husband was just waiting to undergo the screen. 

11. Ms A also gave evidence that the husband told her that “lots of people take drugs”, that drugs “don’t affect the brain” and, therefore, the husband could not see that it was a problem for him or that drug use affected his life. 

12. In the conclusion of her report of 24 September 2012, Ms A states as follows:

    From my observations both children appear happy and comfortable when spending time with their father.

    The father has always been very sensitive to the situation, and has never made any negative remarks to the children about their mother or grandmother.  

    I have spoken to [Mrs K] (sic) and stated how much the children both love being there, and that [X] also appears very comfortable with her father. 

    [Mrs K] (sic) said she can see they love going there and come back happy.  She knows it is very important they continue to spend time with their father.

Dr O

1. Dr O is a clinical and forensic psychologist and a Regulation 7 Family Consultant with the Federal Magistrates Court.  Dr O prepared a Family Report in this matter, dated 20 August 2012.  Dr O also gave viva voce evidence at the final hearing. 

2. In her Report, Dr O reports the wife as understanding the impact of the past few years on [X] and [Y].  The wife states that [X] and [Y] continue to have a fear of sleepovers, fear of being taken from the school and of being taken by the husband. 

3. In relation to the husband, at paragraph 44 of her Report Dr O states:

   Mr Barry did appear evasive at times during interview and appeared to attempt to evade directly answering many questions by providing superfluous information.  Mr Barry appeared verbose but not articulate.

4. In paragraph 45 of her Report, Dr O states:

   Mr Barry denied any violence within the relationship with

   
   

   Ms Komine.  He said that while he would raise his voice on occasion, he was never physically abusive.  He claimed that rather he felt helpless and the children saw his distress as the children were suffering.  Mr Barry said that he came from

   
   

   “a similar environment” and that he did not want the same for the children. 

5. In paragraphs 52 to 54 of her Report, Dr O further states as follows:

   52)Mr Barry was apparently at a loss to explain the children’s reports of his behaviour or their reported fear of him saying that the whole situation placed too much focus on him and diverted the line of questioning.

   53) Mr Barry admitted that he had not completed requested drug screens.  He appeared to suggest (his answer was difficult to follow) that he had an opposition to drug testing as he had never denied drinking binges in his 20’s but he had “stopped all that stuff 15 years ago”.

54)Mr Barry said that he understands that the children are fearful especially of their cousins although he dismisses this as being genuine fear of the children.  He said that he maintains that he wishes to participate in the children’s lives, picking them up from school and having shared care of the children with Ms Komine. 

1. In paragraph 55 of her Report, Dr O describes the

   
   

   maternal grandparents as follows:

   Mr and Mrs K are the maternal grandparents of [X] and [Y].  Both grandparents appear to be extremely balanced and reasonable people.  Discussion with them with respect to their care and views of the children suggest they are sensitive, loving, responsive and affectionate grandparents.  It appears they are focused on providing a secure relationships and stability for the children with the intent of engendering healthy self-esteem, self-confidence, and to enhance the children’s learning in school and good relationships with others. 

2. Dr O describes [X] in paragraph 63 of her Report as follows:

   [X] was aged 9 years and 3 months at time of assessment.  She presented as an extremely confident and outgoing young girl.  She presented as a very bright and cheerful child with a great deal of confidence.  [X] was observed to be very protective and vigilant with respect to [Y]. 

3. In relation to [X]’s views of the husband, Dr O sets out the following in paragraphs 66 to 70 of her Report:

   66)[X] is firmly of the belief that Mr Barry has a bad temper and is very careful in information provided to him; she is frightened of the potential for Mr Barry to become angry at what she says. 

   67)It appears from Ms S’s report that [X] remains highly conflicted with respect to Mr Barry.  She recalls violence perpetrated by him and believed that he was taking drugs and was responsible for a break-in at their home.  [X] says she does not like Mr Barry but gets angry with herself when with him as she feels happy. 

68)[X] is reported to have not wanted extended paternal family members to attend during her time with Mr Barry.  It appears this is in part due to embarrassment she feels relating to her family situation and her mother’s incarceration.  In addition she reported that she recalls her aunts and uncles fighting and believes that her cousins are bad.  [X] appears to hold ongoing concerns about Mr Barry being violent towards herself and her mother.  [X] also remains concerned that her father will come to their home when Ms Komine is released from prison and hurt her mother. 

69)[X] is also reported to refuse to attend school excursions for fear that her father will find her and take her away.  Similarly, she is fearful that he will come to school and take her away. 

70)A more recent report from Ms S dated 15^th June, 2012 noted that [X] continued to express a desire to live with her mother and maternal grandmother.  She reported that she would prefer not to see her father until she was 18 years of age.

1. Dr O indicates that [X] refused to be seen with her father during the report preparation process. 

2. In her Report, Dr O describes [Y] as a bright young man, apparently developing within normal developmental stages. 

3. Dr O confirms that [Y] wishes to spend more time with the husband and that whilst [Y] recalls instances of violence by his father against his mother and being exposed to his parents fighting, [Y] wants to live half time with his dad and half time with his mum. 

4. Under the heading ‘Evaluation’, Dr O states as follows:

   78)There has been a disturbing history of family violence and drug and alcohol abuse within the relationship which the children [X] and [Y] have been exposed to. 

   80)With respect, determination of the veracity of the evidence provided by the parties remains the domain of the Court.  Nonetheless it appears to the writer that Mr Barry’s presentation was improbable and his account of the history of the relationship implausible.  Mr Barry is verbally skilled and quite able to present a coherent and believable account of his past however, the detail appears completely at odds with the documented history.  While Mr Barry denies any prior physical violence within the relationship there would appear to be compelling evidence provided by [X] and [Y] in the course of counselling that suggests physical violence perpetrated by Mr Barry and between Mr Barry and Ms Komine.

   81)Mr Barry appears to use his verbal skills to present façade of a caring and compassionate father but was unable to provide any significant detail of the children.  In fairness he has had limited time with the children in recent years.  Nonetheless, his talk of the children and his desire for contact with them appeared more focused on his need than those of the children.  In addition, his proposal appears highly unrealistic given the limitations of contact with the children his current living circumstances which are grossly inappropriate to facilitate shared care. 

   83)In addition it appears that the charges and conviction against Ms Komine have permitted Mr Barry to adopt the position of victim in this case which he appears to use to attempt to divert attention from primary cause of breakdown of the relationship and the stress and anxiety experienced by [X] and [Y], namely his extensive use of verbal and physical aggression and threats and intimidation within the family unit and witnessed by the children.

   85)The relationship with the paternal (sic) grandparents is well established.  It is evident that Mr and Mrs K have provided their grandchildren with stability and security.  It is evident that they are motivated by love of their daughter and grandchildren and appear to be operating from having the grandchildren’s best interests at heart.  It appears from contact with [Y] and [X] that they derive a great sense of safety from their grandparents.

   86)Mr and Mrs K present as a remarkable couple who remain supportive of Ms Komine yet objective in their views of her behaviour.  Mrs K has said “whatever she did she is my daughter, I do not defend what she did”.  They present as singularly focused on the best interests of the children and repeatedly referred to wanting the children to be safe and happy.

1. At the conclusion of her Report, Dr O makes the following recommendations:

   111)With respect it is recommended that Mr and Mrs K and Ms Komine have shared parental responsibility for [X] and [Y]’s long-term welfare and development. 

   112)Mr and Mrs K, Mr Barry and Ms Komine should retain responsibility for [Y] and [X]’s daily needs when in their respective care. 

   113)With respect it is recommended that [X] and [Y] be permitted to live with Mr and Mrs K. 

   114)It is respectfully recommend that at such time that Ms Komine has successfully completed her parole on

   
   

   11^th February, 2014 that parental responsibility for [Y] and [X] return to Ms Komine and that at that time they be permitted to live with Ms Komine in living arrangements she deems appropriate.

   115)With respect Mr Barry he should be permitted to remain fully informed of all [Y] and [X]’s activities, school events, illness and school attendance etc.  Mr Barry should be required to take responsibility for initiating obtaining such information and attendance. 

   116)It is respectfully recommended that Mr Barry should be permitted to spend time with and communicate with the children as per the Parenting Orders dated 14^th May, 2011 on such occasions and at such times as shall be arranged and facilitated by [A] Community Services.  Alternatively, given apparent financial issues it is respectfully recommended that Mr Barry should be at liberty to seek alternative arrangements at a supervised contact centre.

   117)It is respectfully recommended that the children continue to engage in counselling, preferably, with the established counselling relationship with Ms S, VACRO.  It is recommended that no changes to the supervision arrangements for Mr Barry’s time with [X] and [Y] be made without:

   (a) the express support of Ms S or the designated counsellor.

   (b) at such time that Mr Barry has provided a series of six random clear supervised drug screens.

2. Dr O was questioned as to the apparent discrepancy between the observations made by Ms A of the warm and loving relationship between [X] and the husband and the reluctance and reservations [X] expresses to her counsellor, Ms S, about spending time with him. 

3. It is Dr O’s evidence that these apparent contradictions are understandable. 

4. It is Dr O’s evidence that the degree of comfort observed by

   
   

   Ms A when [X] is with the husband is in part because the supervisor is present and also because [X] is quite good at checking her responses to the husband to ensure that she keeps him happy.

5. It is Dr O’s evidence that given [X]’s age and the complexity of the issues she has been exposed to, she will need time to work through those issues and that this is best achieved by [X] continuing to engage in a long term counselling relationship. 

6. In relation to [X] and [Y] spending time with the extended paternal family, Dr O conceded there were limitations on her recommendations as she had not seen or met the extended paternal family. 

7. Dr O expresses the view that the person best placed to provide advice on the time between [X] and [Y] and the extended paternal family was Ms S, given Ms S’s relationship with [X] and [Y].

8. Dr O also gave evidence that the primary focus for [X] and [Y] should be on settling and establishing the child-father relationship, especially for [X], and that it would not be in [X]’s best interest to push the relationship with the extended paternal family too far or too quickly. 

1. Dr O notes that more frequent and more regular time between the husband and [X] and [Y] would assist the establishment of their relationship.  Dr O understands however that the husband’s financial difficulties impact on his capacity to spend time with [X] and [Y].

2. Dr O was asked to consider the parties and the Independent Children’s Lawyer’s respective proposals in relation to the living arrangements for [X] and [Y]. 

3. In relation to the husband’s proposal for unsupervised time with [X] and [Y], it was Dr O’s evidence that she does not support such a proposal, given it is not consistent with the recommendations of [X] and [Y]’s counsellor, Ms S, and given the husband’s significant history of drug use and violence. 

4. It is Dr O’s view that until there is a recommendation from [X] and [Y]’s long term counsellor that [X] and [Y] are ready for unsupervised time and there are a series of clear drug screens from the husband, consideration should not be given to [X] and [Y] spending unsupervised time with the husband.

5. It is the evidence of Dr O that the proposals of the wife and maternal grandparents were very sensible. 

6. Dr O does not support the Independent Children’s Lawyer that there be orders that automatically introduce unsupervised time between [X] and [Y] and the husband on the basis it was impossible to predict when [X], in particular, would be ready for such unsupervised time. 

7. It is Dr O’s evidence that regularity of time between [X] and [Y] and the husband will be a big factor in them moving to unsupervised time. 

8. It is Dr O’s evidence that the current circumstances where that time is six weeks apart means that [X] and [Y] are starting over again each time they see the husband and this must slow the pace at which [X], in particular, will be able to resolve the underlying issues in her relationship and move to unsupervised time with the husband.

Ms S

1. Ms S is a counsellor with VACRO and has been counselling [X] and [Y] on a weekly or fortnightly basis since January 2011.  Ms S swore an affidavit on 24 September 2012 annexing her reports of 7 June 2011 and 15 June 2012.  Ms S also gave viva voce evidence at the final hearing of the matter.

2. In her report of 7 June 2011, Ms S reports:

   …on 1/2/11 [Y] reported that he had been having nightmares about his parents fighting and that he remembers one fight which was so loud that he had to yell “stop”. 

   In our most recent session on 1/6/11 [X] reported that she remembers violence perpetrated by her father towards her mother and that she would like to reduce the frequency of visits with her dad to monthly.  My observations are that each time she talks about her dad tears form in her eyes.  She appears to have needed the months to build trust in the counselling setting and is now speaking more openly than before.  She demonstrates awareness that her views are different to her brothers and describes many fears stemming from her memories of her parents violent fighting. 

   [Y] tends to be less expressive in my sessions with him.  He will speak or draw briefly in relation to his feelings and then moves on to general play.  [Y] has not articulated that he has fears yet he has nightmares at times that may indicate more going on for him.  He talks about his sadness about his mum being away and that he remembers the police coming to take her.

3. In her report of 15 June 2012, Ms S sets out the following:

   On 15/6/11 when speaking with [X], she raised her concern about her father coming to her home once her mother returned after being released from prison.  

   In counselling on 27/7/11… she began to talk about her parents and [Y] reported that he remembered when they fought and his dad punched his mum in the nose.  He stated he also remembers that his mum punched his dad “in the privates”.  Counsellor asked clients how it makes them feel when they talk about these fights.  [Y] stated that he feels sick all over.  [X] asked [Y] whether he remembered the fight on the tiles.  Counsellor asked the clients what they used to do when their parents would fight (sic).  [Y] stated that he yelled “Be quiet” very loudly so the neighbours would hear him.  [X] reported that she told her parents to stop fighting.

   On 10/8/11 she informed counsellor that she did not want to ever have overnight access with her dad and also did not want her brother to have sleep-overs without her.  She explained that she was worried that her dad would kidnap her and/or her brother and take them overseas to [omitted].

   14/10/11: [X] informed counsellor that she had seen her dad break her mum's leg. 

   14/10/11: [Y] informed counsellor that he remembers his parents fighting and that it was very loud.  He stated it was so loud that they woke him up with their fighting.  He stated “going through big scary things gives me a big headache”.

   7/2/12: [X] informed counsellor about the visit she had with her dad last Friday.  She explained her distress at seeing her cousins and grandmother and informed counsellor that she had told her dad that she was not ready to see them. 

   20/3/12: [X] informed counsellor that she was scared that her dad would come to her home and hurt her mum once her mum is released. 

   20/4/12: Client informed counsellor that she does not want to live with her dad and asked client to document the following: “I don't like my dad”, “When I see him it's horrible”, “If I act sad, dad starts nagging and it drives me nuts so I act happy”. 

   9/5/12: [Y] reported that he feels sad that he has not been able to see his dad in such a long time.  Counsellor asked him what he would ideally like to have happen and he reported that he would like to live half the time with his mum, and half the time with his dad. 

   9/5/12: Counselling with [X].  She used the St Lukes “Funky Fish Feelings cards” to choose cards to represent each family member.  She chose a card that she described as “happy” for herself and multiple cards that showed scary fish to represent her dad.  [X] also spoke with the counsellor about her dad and that she would happy if she did not have to see him again until she was 18.

1. Ms S set out in her 15 June 2012 report that counselling with [X] and [Y] is continuing with a new focus on the readjustment occurring now that the wife has been released from gaol.  In her report, Ms S states that much of the previous sessions, not documented in her report, focused on grief and loss as a result of the wife being in gaol and [Y]’s grief at his parents’ separation.

2. The husband raised with Ms S his concern that he had no input into the background information given to Ms S in relation to [X] and [Y]'s counselling and asked whether that had influenced or caused conflict in relation to the report prepared by Ms S. 

3. It is Ms S's evidence that her reports are primarily a record of what [X] and [Y] have said to her in counselling over a very long time, during which Ms S believes she has developed [X] and [Y]’s trust. It is Ms S’s evidence that she does not believe there is any conflict or bias in her report because she had not received input from the husband. 

4. It is Ms S's evidence that she has spoken to [X], in particular, about involving the husband in counselling, but that [X] is not ready for that at this time.  Ms S indicated that the husband’s involvement with [X] in the counselling process is a possibility in the future and that the husband’s involvement could assist [X]. Ms S was agreeable to speaking with the husband in relation to [X] and [Y]'s counselling. 

5. Ms S indicated that [X] and [Y]'s counselling is funded to the end of 2014 and could continue beyond that time if needed. Ms S indicated that she currently sees [X] or [Y] weekly or fortnightly at their school. 

Best interests of the child 

1. When exercising its jurisdiction in relation to children, the

   
   

   Federal Magistrates' Court is bound by the provisions of the

   
   Family Law Act 1975 (“the Act”). 

2. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B subsection (3) which deals with Aboriginals and Torres Strait Islanders):

   1.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 these objects are that (except when it is or would be contrary to a child’s best interests):

   (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. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

The Presumption of equal shared parental responsibility

1. In this matter, there is agreement between all parties that until

   
   

   February 2014 the maternal grandparents and the wife have equal shared parental responsibility for [X] and [Y]. 

2. That the maternal grandparents and mother have equal shared parental responsibility is entirely appropriate given the recent history of the parents and given that by agreement [X] and [Y] will be living with the maternal grandparents. 

3. After February 2014, when the wife's parole period expires, the maternal grandparents and the wife propose that the wife have sole parental responsibility for [Y] and [X].  The husband seeks orders that at that time he and the wife have equal shared parental responsibility. 

4. Section 61DA of the Act makes reference to there being a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility.

5. Section 61DA of the Act provides as follows:

   1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. In this matter, given the history of the parents' relationship, including the wife being convicted of attempted murder of the husband, the Court must have very real concern as to the ability of the husband and wife to communicate appropriately in relation to their children. 

7. Further, the parents' relationship was, I am satisfied, one where there was a high level of family violence perpetrated by the husband against the wife. 

8. I am satisfied therefore that the presumption of equal shared parental responsibility is rebutted and further that such an order is not in the best interests of [X] and [Y]. 

9. Accordingly, orders will be made for parental responsibility in accordance with the proposals of the wife, the maternal grandparents and the Independent Children's Lawyer, that is, the maternal grandparents and the wife have equal shared responsibility for [X] and [Y] and from 14 February 2014 the wife have sole parental responsibility.

1. This view is shared by Dr O, who, in paragraphs 89 and 90 of her Family Report, notes as follows:

   89)There appears clear evidence that [Y] and [X] have been exposed to family violence in the relationship between their parents.  The children report to their counsellor,

   
   

   Ms S, recollection of specific and significant events of violence perpetrated by Mr Barry.  Ms Komine has been incarcerated for threats of violence towards Mr Barry. 

   90)It appears that the history of the matter, the current circumstances and communication between the parties is insufficient for effective shared parental responsibility at this time.

2. Section 65DAA of the Act requires the Court to consider a child spending equal time or significant and substantial time with each of his or her parents where the Court has made orders for equal shared parental responsibility.

3. Even when such an order has not been made, the Full Court in the matter of Goode & Goode (2006) FLC 93-286 held that the Court must consider whether an order for equal time or significant and substantial time is in the child's best interests.

4. Neither of the parties seek orders for the husband to spend significant and substantial time with [X] and [Y] at this time.  The husband, however, proposes an equal time living arrangement for [X] and [Y] from February 2014.  The wife and maternal grandparents propose the husband spend limited supervised time with [X] and [Y] until such time as he has spent regular time with them and has provided clean drug screens for at least 12 months.

5. When determining what arrangements to put in place for children, the Act is clear that the orders the Court makes must be in the best interests of the children. In order to determine what is in the children's best interests, the Court must consider the matters set out under section 60CC subsections (2) and (3) of the Act.

1. Each of the matters set out in subsections (2) and (3) of section 60CC of the Act, where relevant, must be considered and assessed in the context of each of the parties' behaviours and proposals and a decision made as to which of those proposals or such other arrangement as the court determines is in the best interests of the children.

2. The Court is not bound to the parties' proposals as to the children's living arrangements and may make such other orders as it determines are in the children's best interests (see AMS v AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238).

3. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the children's best interests. They are as follows.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. [X] and [Y]'s lives relationship with both of their parents has been significantly negatively impacted as a result of the behaviours of both the husband and the wife.

2. The wife's incarceration and prior drug and alcohol issues have impacted on her relationship with [X] and [Y], and it is only now being re-established following the wife's release from gaol. 

3. [X] and [Y]'s relationship with the husband is also damaged due to the husband’s violence during the marriage and to the limited time [X] and [Y] have spent with the husband since separation. 

4. [X] in particular has been severely emotionally traumatised by the impact of the husband's violence and by the wife’s incarceration and is most reluctant to spend anything but the most limited supervised time with the husband at this moment.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This goes to the heart of this matter. 

2. I am satisfied during the relationship the wife was subjected to ongoing domestic violence and that [X] and [Y] were exposed to that violence. 

3. I am also satisfied that the parties' relationship was volatile with many loud and verbal arguments in part fuelled by the parties' use of illicit substances and excessive alcohol consumption.  [X] and [Y] were exposed to this volatility.

4. As a result of this, [X] in particular has suffered, and continues to suffer, extreme emotional distress. 

5. The husband's consistent failure to undergo supervised drug screens between June 2010 and September 2012 are also of the gravest concern.  The Court must and does draw the inference that his failure to do so, particularly without reasonable excuse, is indicative of an ongoing use of illicit substances. 

6. Therefore the Court cannot be satisfied that the husband would not pose a risk to [X] and [Y] if the husband were to have unsupervised time with [X] and [Y]. 

7. At paragraphs 94 to 97 of her Family Report, Dr O sets out her views in relation to this subsection and her conclusions confirm with my own views.  Dr O states as follows:

   94)The second primary consideration is the need to protect the children from physical or psychological harm or from being subjected to or exposed to neglect abuse or family violence.  It appears without question that [X] experiences considerable patterns of anxiety related to contact with Mr Barry. 

95)It is unlikely that the children would be exposed to abuse, neglect or family violence if they were to spend supervised time with Mr Barry.  To spend unsupervised time with

Mr Barry would continue in my opinion to expose and reinforce [X]’s psychological trauma.

96) In addition, in the absence of Mr Barry’s completion of requested drug screens, it cannot be assumed that he would not pose a risk to the children if he were to have unsupervised contact with the children. 

97)The father’s presentation provides, in the writer’s opinion, low confidence in increasing time or unsupervised time in the future.  Mr Barry showed little or no insight into his own behaviour, instead creating a range of justifications and sources of blame for his actions.  He may genuinely have little comprehension of the negative impact of his behaviour on others, particularly women or children.  His statements about refusing testing due to having ceased use some years ago seemed an immature response given that it continues to limit progress of time with the children.  It appears indicative of him having little concept of taking responsibility for himself.

1. Section 60CC subsection (3) of the Act sets out the additional considerations that the Court must look at when determining what is in the children’s best interest. Each will be considered where relevant.

Section 60CC(3)(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

1. [X] expresses to her counsellor, Ms S, a very real fear and reluctance to spend anything but limited supervised time with the husband. 

2. [Y] does not share his sister’s concerns and wishes for more time with the husband. 

3. Both [X] and [Y] are clear that they wish to remain living with the maternal grandparents.

1. The husband expresses concerns that [Y]’s views and wishes were being lost because of [X]’s emotional difficulties.  The husband did not ask either Dr O or Ms S how [Y]’s wishes to spend more time with him could be accommodated in the current circumstances. 

2. In paragraphs 105 to 109 of her Report, Dr O considers the views of [X] and [Y].  She states as follows:

   105)It appears to have been established in counselling with [X] that she continues to struggle with her feelings about Mr Barry.  While she tolerates supervised contact with him she remains concerned about being kidnapped, does not want to spend overnight or unsupervised time and is concerned about [Y]’s safety should he be with Mr Barry alone.  [Y] is reported to have a different view of Mr Barry.  He is reported to enjoy visits and would like opportunities to see extended family members.  [Y] is reported to be unconcerned about spending time with Mr Barry without [X].

   106)Neither [Y] nor [X] wants to live with Mr Barry.  Both enjoy living with their grandparents and want to continue living with them even after Ms Komine was released from prison. 

   107)While the children are both relatively young at age 9 and 8 respectively to express well-formed and abstract opinion, they are nonetheless relatively sophisticated in their understanding and expression of their emotions and wishes.  This degree of sophistication is most likely due to the extended period of counselling and the assistance they have received in processing their thoughts and feelings.

   108)On the basis of the information provided by their counsellor, Ms S, it appears that [X] and [Y]’s are well formed and articulated and have been consistent over an extended period of time. 

   109)Due to these factors and the addition to the exposure to domestic violence it is the writer’s opinion that significant weight should be placed upon their expressed wishes.

Section 60CC(3)(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)

1. [X] and [Y]’s relationship with each of their parents has already been canvassed at length in this judgment.  Suffice it to say, [X] and [Y]’s relationship with the husband and the wife is currently fractured as a result of the husband and the wife’s behaviours during the relationship and the very traumatic events post-separation. 

2. Fortunately for [X] and [Y] their maternal grandparents provide them with a loving, safe and nurturing haven, and I am satisfied that their relationship with [X] and [Y]’s grandparents is close and loving.

3. The husband makes allegations in his viva voce evidence that [X] and [Y] are scared of the maternal grandmother.  This is not the evidence of Ms A, Dr O or Ms S who all report that [X] and [Y] have a close and loving relationship with the maternal grandparents.  

4. The husband’s evidence in this regard seems to reflect the husband’s own negative views of the maternal grandmother and does not reflect [X] and [Y]’s experiences with their grandmother at all. I would suggest the husband’s evidence was self serving and did not reflect well on him. 

5. It is a source of real upset for the husband that at this time [X] and [Y] are not able to spend time with the extended paternal family. 

6. I am, however, guided by the evidence of Dr O and Ms S that at this time, at least for [X], those relationships are something she is not ready to pursue.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. In considering this factor, the Court must also take into account

   
   

   subsection 60CC(4) and (4A) which provide as follows:

   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.

   4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. Given the history of the parents’ relationship in this matter, both were surprisingly reticent to criticise the other, especially the husband of the wife. 

1. The husband wrote a lengthy letter to Her Honour Justice King of the Supreme Court of Victoria for the wife’s sentencing hearing.  In that letter he sought leniency on the wife’s behalf and indicated his belief her offences against him were as a result of post-natal depression and the impact of the wife’s alcohol and drug use.  The husband is reported to have visited the wife regularly in gaol and declined to cross-examine the wife at the final hearing of this matter on the basis that, the husband states:

   “she had already endured enough sufferance”

   and the husband did not feel the wife needed to go through

   
   

   cross-examination by him.  

2. The maternal grandparents have supported [X] and [Y]’s relationships with each of the wife and the husband, ensuring [X] and [Y] were taken regularly to see their mother while she was in gaol and encouraging and supporting [X] and [Y]’s time with their father. 

Section 60CC(3)(d) 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. At this time there is no proposal that [X] and [Y]’s circumstances are to change in the medium term as all parties agree that for at least the next 18 months [X] and [Y] will remain living with their maternal grandparents. 

2. The husband’s proposal that in February 2014 there be an introduction of a shared care living arrangement between himself and the wife, is not an order that the Court would contemplate, given the husband has spent very limited time with [X] and [Y] since separation in 2009 and that all such time has been supervised.

3. The husband’s lack of suitable accommodation for [X] and [Y] and the real possibility the husband is facing eviction from his current premises, the concerns about the husband’s ongoing drug use, the domestic violence perpetrated by him during the relationship and the parties’ inability to communicate, add to the a myriad of concerns about the appropriateness of the husband spending unsupervised time with [X] and [Y].

4. The husband’s proposal reflects the husband’s lack of insight into the needs of [X] and [Y] and the husband’s placing of his own needs ahead of the best interests and needs of [X] and [Y]. 

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The practical difficulty at this time, in relation to the arrangements for [X] and [Y], are as a result of the husband’s current financial circumstances which limit his ability to fund the independent supervisor and therefore spend regular time with [X] and [Y].

2. The husband’s evidence in relation to any improvement in his financial circumstances was not promising and this does cause some real concerns about the husband’s ability to spend the regular time with [X] and [Y] that Dr O identified as best assisting their relationship to move on and for unsupervised time to become a viable outcome. 

Section 60CC(3)(f) the capacity of:

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

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

to provide for the needs of the child, including emotional and intellectual needs

1. Neither of the husband or the wife have evidenced great capacity in recent times to meet [X] and [Y]’s needs. 

2. The parties’ use of illicit substances and excessive alcohol consumption during their relationship and after separation, the violence during the relationship to which [X] and [Y] were exposed and the wife’s criminal behaviours have caused [X] and [Y] serious emotional trauma and have resulted in neither parent being able to care for them.

3. The wife has embarked on the long road to recovery and, to the wife’s credit, she appears to be addressing the many issues that led to her being imprisoned. 

4. The husband’s evidence, his failure to acknowledge his violence and his failure to accept the need to address his drug and alcohol issues causes the Court real concern as to his capacity to meet [X] and [Y]’s physical and emotional needs into the future. 

5. Fortunately for [X] and [Y] the maternal grandparents have been and continue to support them.  The maternal grandparents have met and, I am satisfied, will continue to meet [X] and [Y]’s emotional and physical needs and provide [X] and [Y] with a safe, secure and loving home.

Section 60CC(3)(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

1. The drug and alcohol lifestyle of the parents has been canvassed at length in this judgment. 

2. Sadly, the husband’s family history is fraught with serious alcohol issues.  The husband’s parents are reported as having serious issues with alcohol, very sadly, the husband’s brother died from

   
   

   alcohol-related illness and the husband’s sister is currently very ill and, I understand, hospitalised as a result of her alcohol-related illness. 

Section 60CC(3)(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;

1. Subsection (h) is not applicable to this matter as the children are not of Aboriginal or Torres Strait Islander heritage. 

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Neither party has demonstrated a commitment to the responsibilities of parenthood given their use of illicit substances, excessive alcohol, their violence and their criminal behaviours. 

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. As set out in the judgment, the wife makes serious allegations of domestic violence perpetrated against her during the relationship.  Whilst the husband denies these allegations, his evidence was disingenuous in this regard.  The husband avoided direct questions on this issue from Dr O during the report preparation process and in cross-examination, he could not recall the many incidents of violence.  The husband also gave contradictory answers to very specific questions on the instances of violence.

2. The husband failed to cross-examine the wife, leaving the wife’s evidence as to the domestic violence she suffered at the husband’s hand unchallenged before the Court.

3. The wife’s evidence of ongoing domestic violence is strongly supported by the comments made by [X] and [Y] to their counsellor, Ms S.  Of even greater concern is the traumatic impact that the exposure to the husband’s violence has had on [X] in particular. 

4. I am satisfied that during the relationship the wife was subjected to family violence at the hands of the husband and that [X] and [Y] were exposed to that violence. 

Section 60CC(3)(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

1. At separation the wife and the maternal grandmother obtained an intervention order against the husband.  This order has subsequently expired.

Section 60CC(3)(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

1. Ideally when making parenting orders, the Court seeks to make the order least likely to require any further proceedings before the Court. 

2. Given the issues in this matter, I am satisfied that there may be a need for further court proceedings in the future.

3. The wife and maternal grandparents propose the husband have leave to seek orders for unsupervised time in the event the husband satisfies certain preconditions, being to provide clean drug screens and regularly spend time with [X] and [Y] over a 12 month period. 

4. Counsel for both the wife and the maternal grandparents submitted that if the husband were to comply with those orders their clients would be keen to engage with the husband in mediation in the hope agreement could be reached for [X] and [Y] to spend unsupervised time with the husband without requiring recourse to the Court.

5. It is argued on behalf of the wife and maternal grandparents that an ‘automatic’ introduction of unsupervised time between the husband and [X] and [Y], as proposed by the Independent Children's Lawyer must of itself increase the real possibility of further litigation especially if such time was not supported by Ms S.  It is further submitted on behalf of the maternal grandparents that the proposal by the Independent Children’s Lawyer would require them to incur considerable legal expense in circumstances where they have already had to fund this litigation. 

6. I find the submissions of the wife and maternal grandparents most persuasive in this regard and am of the view that it is for the husband to commence any further proceedings if he seeks unsupervised time with [X] and [Y] in the future, in the event the parties have been unable to agree on this issue. 

7. I am further persuaded to this course of action given the husband’s proposals that in February 2014 the wife, [X] and [Y] should live equally with he and the wife.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. It is very apparent that [X] and [Y], and [X] in particular, have been severely emotionally traumatised by their parents’ behaviours, being their use of illicit substances and excessive alcohol, the domestic violence that they were exposed to during the parties’ relationship as well as by the mother’s subsequent incarceration. 

2. Fortunately, [X] and [Y] have been able to access ongoing therapeutic counselling with Ms S through VACRO, and this counselling is ongoing and available until at least the end of 2014. 

3. Ms S’s evidenced a willingness to engage with all adults in this matter, including the husband.  This will be vitally important and may assist the husband to develop the necessary insight into the impact on [X] and [Y] of his past behaviours.

Conclusion

1. This matter relates to the living arrangements for two young children, [X] aged nine and [Y] aged seven. 

2. The proceedings were commenced by the husband in April 2010 as he had not spent time with [X] and [Y] after the parties’ final separation since November of 2009.  The husband had not spent time with [X] and [Y] because of the wife’s concerns as to the husband’s use of illicit substances and the violence perpetrated by the husband during the relationship. 

3. Orders were made in June 2010 for [X] and [Y] to live with the wife and to spend supervised time with the husband and for the parties to undergo supervised drug screens.

4. In September 2010 the wife was charged with the attempted murder of the husband and incarcerated. The maternal grandparents issued an urgent application seeking to intervene in the proceedings, and for [X] and [Y] to live with them. 

1. In September 2010 orders were made for the maternal grandparents to have sole parental responsibility for [X] and [Y], for [X] and [Y] to live with them, and for the husband to continue to spend supervised time with [X] and [Y] in accordance with the June 2010 orders. 

1. The wife pleaded guilty to the charges against her and was gaoled for three and a half years with a non-parole period of one year and seven months.  The wife was released on parole in April 2012. 

2. The proceedings before this Court were adjourned by consent between all the parties until this time to enable the matter to be heard after the wife’s release from gaol.

3. Until September 2012 the husband, without reasonable excuse, failed to undertake any of the supervised drug screens that he was requested to undertake by the Independent Children's Lawyer or as ordered by this Court.

4. There is agreement between all parties that until the wife’s parole expires in February 2014, the wife and the maternal grandparents will have parental responsibility for the [X] and [Y] and that [X] and [Y] will live with the maternal grandparents. 

5. The wife and maternal grandparents propose that [X] and [Y] continue to spend supervised time with the husband until such time as he completes 12 months of clean supervised drug screens and spends time with [X] and [Y] at least once per month for 12 months.  After which time they propose the parties undertake mediation with a view to introducing unsupervised time and, failing agreement, the husband have liberty to make application to this Court.

6. The Independent Children's Lawyer supports the maternal grandparents and wife’s position in part but proposes that upon the husband meeting the preconditions of clean drug screens and regular time for 12 months, his time automatically revert to four hours unsupervised time per fortnight and the wife and/or maternal grandparents have leave to apply to the Court if [X] and [Y]’s counsellor is of the view that unsupervised time is inappropriate. 

7. It is submitted on behalf of the wife, the maternal grandparents and Independent Children's Lawyer that [X] and [Y]’s time must continue to be supervised because of:

   ·the husband’s failure to undertake drug screens between June and September 2012 and that, in light of same, the inability of the Court to be satisfied the husband is drug free and therefore not posing a risk to [X] and [Y] at this time:

   ·the severe emotional trauma suffered particularly by [X] as a result of her exposure to the violence perpetrated by the husband;

   ·the clear evidence of [X]’s counsellor of the impact on her emotional wellbeing if unsupervised time was ordered at this time;

   ·related to the above factor, [X]’s clear wishes that any time between herself and the husband be supervised; and

   ·the husband’s lack of insight into the impact of his violent behaviours on [X] and [Y] and the husband’s failure to accept responsibility for those behaviours.

8. The husband seeks orders that as from November 2012 [X] and [Y] spend unsupervised time with him each Friday from after school for four hours.  The husband proposes that Ms A assist [X] and [Y] with the transition to unsupervised time, but the husband’s proposal as to how this would unfold was somewhat unclear. 

9. The wife, maternal grandparents and Independent Children's Lawyer further seek orders that after 11 February 2014, when the wife’s parole expires, that the wife have sole parental responsibility for [X] and [Y] and that they live with her. 

10. The husband proposes that after 11 February 2014, he and the wife have equal shared parental responsibility for [X] and [Y] and that [X] and [Y] live week about with each of he and the wife.

1. Dealing with the issue of parental responsibility after February 2014 first, as set out previously in this judgment, I am satisfied the presumption for equal shared parental responsibility contained in section 61DA of the Act has been rebutted, first because of the serious and ongoing family violence that I am satisfied was perpetrated by the husband against the wife during the relationship and also because such an order cannot be seen to be in the best interests of [X] and [Y] given their parents highly dysfunctional relationship.

2. Accordingly, an order will be made the wife to have sole parental responsibility for [X] and [Y] after 11 February 2014 (but subject to her parole expiring, she remaining out of the criminal courts and remaining drug free).

3. In relation to the time that [X] and [Y] spend with the husband, I am of the view that this Court cannot be satisfied that if [X] and [Y]’s time with the husband was unsupervised, [X] and [Y] would not be at risk of harm, both physical and psychological. 

4. The husband’s failure to undertake supervised drug screens for over two years is very concerning.  The only conclusion the Court can draw from this is that the husband continues to use illicit substances.  He has conceded drug use to this Court, to the Supreme Court of Victoria in his letter to Her Honour Justice King on behalf of the wife and in the husband’s comments to Ms A. 

5. The emotional impact of the husband’s violence during the parties’ relationship on [X] and [Y], and [X] in particular, are well documented in this judgment.  To introduce unsupervised time at this moment would be seriously detrimental to [X]’s emotional and psychological wellbeing and flies in the face of the clear and unequivocal evidence of both her counsellor, Ms S, and the Report Writer, Dr O.

6. [Y] has been less impacted by his parents’ behaviour, perhaps because [Y] was just that little bit younger at the time.  [Y] is more open to spending unsupervised and additional time with the husband.  

1. I am satisfied however that given [Y] and [X]’s young ages, the impact on [X] if [Y] were to spend unsupervised time with the husband when [X] was not there, [X] being observed to be very protective of her little brother, and the ongoing concerns about the husband’s drug use, an order for unsupervised time for [Y] is also not in [Y]’s best interests. 

2. Accordingly, I shall make orders that the husband continue to spend time with [X] and [Y] supervised by [A] Community Services or such other agreed supervisor. Given the husband’s current financial circumstances, such supervisor could be a contact centre or a combination of a contact centre and [A] Community Services. It is

   
   

   Dr O’s evidence that the current arrangements whereby [X] and [Y] are only spending time with the husband every four to six weeks is not assisting them move forward in their relationship with the husband.  Accordingly, a ‘combination’ of supervisions could allow [X] and [Y] to spend more regular time with the husband.

3. The wife, maternal grandparents and Independent Children's Lawyer put forward proposals as to how [X] and [Y]’s time with the husband is to move forward to unsupervised time.  All were in agreement such a move should not occur until such time as the husband undertook 12 months of clean supervised drug screens and spend time with [X] and [Y] at least monthly for a continuous period of 12 months.  I agree with these proposals given the husband’s failure to comply with orders for supervised drug screens and concerns as to the frequency of the husband’s time with [X] and [Y] in 2012.

4. The wife and maternal grandparents propose that when and if the husband meets the preconditions, the parties attend mediation to resolve the issue of the husband’s unsupervised time, and, if they are unable to resolve matters, the husband have liberty to apply to the Court.

5. The Independent Children's Lawyer’s proposes that when the husband meets the preconditions, the husband’s time with [X] and [Y] automatically become unsupervised for four hours each fortnight, and that the wife and maternal grandparents have leave to apply to the Court if they allege unsupervised time is inappropriate. 

6. I am of the view that an automatic move to unsupervised time is not in [X] and [Y]’s best interests.  Dr O expressed a similar view.  Dr O is most concerned that as it is impossible to predict the timing of the resolution of [X]’s emotional trauma, an automatic increase to unsupervised time before [X] was ready for such an arrangement would be most harmful to her.

7. Accordingly I intend to make orders in the terms as proposed by the wife and maternal grandparents. 

8. I have no doubt the husband will be somewhat aggrieved by my findings and the orders I intend to pronounce in this matter. 

9. The reality however is that these findings are as a result of the husband’s behaviours and the husband’s failure to comply with the Court’s orders for over two years.  The Court has been left with no other option but to make the orders it is going to make.

10. The orders, however, do give the husband an opportunity to move his relationship with [X] and [Y] forward. 

11. The husband professed himself at the hearing willing to do drug screens every day if he had to.  Whilst the husband will not be required to do this, the husband will have to illustrate to [X] and [Y] and to the wife, maternal grandparents and perhaps this Court that he is drug free and committed to his relationship with [X] and [Y]. 

12. It will also be very important that the husband engages with Ms S and avails himself of any opportunity to work with her and [X] and [Y] to improve their relationship as well as taking on board Ms S’s advice as to how best assist [X] and [Y] move on from the emotional and psychological damage done to them by the husband’s behaviours during the marriage.

13. Similarly the wife has been given a ‘second chance’ to put her life back on track.  The wife too must ensure she keeps moving forward and avoids the self-destructive behaviours that led to the wife’s fall from grace as much for [X] and [Y] as for herself. 

1. Finally, the maternal grandparents should be, and are, commended for the love, care and support they have provided [X] and [Y] in these last years.  Without the maternal grandparents, the outlook for [X] and [Y] would indeed have been very bleak. 

I certify that the preceding two hundred and thirty-three (233) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: 

Date:  22 October 2012