Choudhary and Hailey and Ors

FAMILY COURT OF AUSTRALIA

CHOUDHARY & HAILEY AND ORS

[2016] FamCA 541

FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Parental responsibility – Best interests of the children – Where the paternal grandparents and mother reached agreement – Where the father has disengaged from the proceedings – Decision on an undefended basis against the father – Where the elder child lives with the paternal grandparents and the younger child lives with the mother – Issue of the mother’s protective capacity – Issue of the elder child’s behaviour and the paternal grandparents’ capacity – Issue of the limited contact between the children – Where satisfied that the father has perpetrated family violence – Views of the children – Nature of the children’s relationships – Attitude to the responsibilities of parenthood – Likely effect of any change in circumstances – Orders made on a final basis for the elder child to continue to live with the paternal grandparents – Orders made on an interim basis for the younger child to live with the mother – No contact with the father – Family therapy – Orders for the children to spend time together.

FAMILY LAW – CHILDREN – INTERVENTION – Section 91B Order – Department of Family and Community Services invited to intervene.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC.

Donnell & Dovey [2010] FAMCAFC 15
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Choudhary

RESPONDENT:

Ms Hailey

INTERVENERS:

Mr Choudhary Snr &

Ms Kisani

INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid

FILE NUMBER:

PAC

3292

2007

DATE DELIVERED:

5 July 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Hannam

HEARING DATE:

4, 5, 6, 7 April 2016

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr Fermanis

SOLICITOR FOR THE RESPONDENT:

Claremont Legal

INTERVENER – LITIGANTS IN PERSON:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macdiarmid Family Law Specialist

Orders

IT IS ORDERED THAT

By consent of the Respondent and Interveners and on an undefended basis in relation to the Applicant, orders are made in accordance with paragraphs 1 to 13 of Exhibit 9.

By consent of the Respondent and the Interveners and on an undefended basis in relation to the Applicant and pending further, interim orders are made in accordance with paragraphs 14 to 38 and note the additional matters set out as notations in Exhibit 9.

The proceedings are listed for further directions at 9.30am on 16 August 2016.

Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention.

Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services (‘The Secretary’), or
his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

The Independent Children’s Lawyer is at liberty to provide any of the exhibits in these proceedings to the Secretary in connection with the further invitation to intervene in the proceedings noting that I am not currently in a position to provide the Secretary with a Judgment with respect to the further invitation to intervene and am relying on the Independent Children’s Lawyer to inform the Secretary of the matters of concern that have arisen in these proceedings.

Liberty to the Independent Children’s Lawyer to restore the matter to the list on short notice.

THE COURT NOTES

The Independent Children’s Lawyer is to provide the Court with updated information on the adjourned date in respect to the following matters:

a.   Compliance with order 19 with respect to L and S spending time together.
b.   Progress in relation to the parties’ involvement and therapy with Dr V.
c.   The mother’s engagement with additional services and therapists in particular with respect to family violence, education interventions and counselling and the mother’s co-operation in the prosecution of Mr N in respect of his assault charge where the mother is the victim and the associated apprehended violence order.
d.   Any steps taken by the mother with respect to her accommodation and any other matters associated with improving her protective capacity with respect to exposure to family violence in her household and her relationships.
e.   Any further steps taken by the Department of Family and Community Services in the event they do not intervene.

BY CONSENT AS BETWEEN THE RESPONDENT AND THE INTERVENERS AND ON AN UNDEFENDED BASIS AS TO THE APPLICANT IT IS ORDERED ON A FINAL BASIS THAT:

All prior parenting Orders be and are hereby discharged.
The Intervener Mr Choudhary Snr have sole parental responsibility for the child L born … 2002.
The child L live with the Intervener Mr Choudhary Snr.
The parties are restrained by injunction from causing or allowing L and S born … 2004 (‘the children’) or either of them to come into contact with Mr N (also known as Mr NN) born … 1980 and shall ensure that any person who has the care or control of the children for any period is aware of this Order.
The mother and the Interveners shall keep each other advised at all times of their residential address, email address and contact telephone number and shall advise the other within 48 hours of any change to either their residential address or telephone number.
The Interveners are restrained from communicating any of the mother’s contact details provided pursuant to the previous order to any other person including in particular to the Applicant Mr Choudhary.
The mother and the Intervener Mr Choudhary Snr be permitted to liaise directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and each party shall provide and continue to provide the necessary authorities to facilitate this Order.
The mother and the Intervener Mr Choudhary Snr shall keep the other advised of the health of both children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable.
The children communicate with the mother and the Intervener by telephone at any reasonable time when they are in any other party’s care and each party shall do all things necessary to facilitate the children communicating with the other by telephone on a regular basis.
All parties are restrained from physically disciplining the children or from allowing any third person to do so.
No party shall discuss these Court proceedings with the children or show the children any document connected with these proceedings.
All parties are restrained from passing information or messages through the children to any other party.
Each party shall at all times:
21.1be courteous and respectful to the other parent and their family members;
21.2refrain from using profane language; and
21.3be restrained by injunction from making derogatory comments about and otherwise denigrating any other party or their family members
in the hearing or presence of the children and shall remove the children from the presence of any person who is denigrating any other party or any members of the children’s families in the presence or hearing of the children.

BY CONSENT AS BETWEEN THE RESPONDENT AND THE INTERVENERS AND ON AN UNDEFENDED BASIS AS TO THE APPLICANT AND PENDING FURTHER ORDER IT IS ORDERED THAT:

The Respondent mother have sole parental responsibility for the child S born … 2004.
The child S live with the mother.
The child S spend time with the Interveners as agreed and failing agreement as determined by the mother.
The child L spend time with the Respondent as agreed and failing agreement as determined by the Intervener Mr Choudhary Snr.
The Respondent and the Interveners will do all things necessary (including providing the appropriate technology and ensuring it is available for use) to ensure that when the children are living in separate households they will communicate with each other electronically (and if at all possible using video technology) regularly and by agreement, and failing agreement each Wednesday between 5.30pm and 6.30pm, and the Respondent and the Interveners shall allow the children to communicate uninterrupted and in private so far as is practicable.
Commencing on Sunday 10 April 2016 and thereafter on the first Sunday of each calendar month the Respondent and the Interveners are to do all things (including arranging appropriate transport) to ensure that the children attend at the home of the Intervener Mr Choudhary Snr’s daughter Ms C at Suburb B between the hours of 10.00 am and 5.00 pm, and at such other times and places as may be agreed between the Respondent and the Interveners, and to facilitate this Order the Interveners are to ensure that L arrives at Ms C’s home not later than half an hour before the scheduled commencement of such time and is collected not earlier than half an hour after the conclusion of such time, and the mother shall ensure that S arrives at Ms C’s home not earlier than the scheduled commencement of such time and is collected not later than the conclusion of such time.
AND THE COURT NOTES THAT in determining the time that the children spend with the parties in accordance with the preceding three Orders the parties will have due regard to any recommendations made to them by the Therapist appointed in the following order.
The Respondent and the Interveners and each of them shall within 21 days contact Dr V (‘the Therapist’), for the purpose of arranging and attending the first available and offered intake appointment to enable the Respondent, the Interveners, and the children to participate in therapeutic counselling (‘the Counselling’) and subject to the assessment of suitability and acceptance of the role by the Therapist the Respondent and the Interveners shall then:
28.1attend at such times, dates and places as may be advised; and
28.2participate in and complete such sessions of therapeutic counselling as are assessed as suitable and offered,
AND THE COURT NOTES that the purpose of the Counselling is to assist the Respondent and the Interveners to improve their parenting relationship and to facilitate the relationship between L and S.
Each of the Respondent and the Interveners is to provide all consents, authorities and cooperation as are necessary to facilitate a referral by a General Practitioner by way of Medicare Mental Health plan to aid and fund the Counselling for the benefit of the Respondent, the Interveners and the children provided that in the event that there are insufficient funds via Medicare to pay for the Counselling, any shortfall is to be covered by the Interveners.
The Independent Children’s Lawyer have leave to provide the Therapist with copies of all orders, reports and documents filed by the parties in these proceedings.
The parties and each of them are restrained from causing the child S to attend any therapist or counsellor other than pursuant to a written referral from the Therapist.
Without limiting the next two orders, each of the Respondent and the Interveners are to attend at such times, dates and places and ensure the payment of any fees as are necessary to participate in any therapy, program or course nominated by the therapist or the Independent Children’s Lawyer in consultation with the Respondent and the Interveners.
In consultation with the mother and the Therapist, the Independent Children’s Lawyer shall within 21 days obtain a referral for the mother to a therapist (‘the mother’s therapist’) and the mother shall thereafter do all things necessary to attend upon the mother’s therapist and the mother shall comply with any treatment the mother’s therapist recommends.
Subject to consultation with the mother’s therapist and to the mother’s therapist’s agreement, the Independent Children’s Lawyer have leave to provide the mother’s therapist with all reports, orders and documents filed by the parties in these proceedings.
In the event that the therapist or the Independent Children’s Lawyer recommend that the children participate in any other program or follow up any referral then each of the Respondent and the Interveners shall do all things and compete and sign all documents including, without limitation, the provision of any necessary consents and ensuring that the children attend all appointments, necessary for the children to be enrolled in and participate in such program or follow up such referral.
The Applicant Mr Chaudhary is restrained by injunction from approaching and/or making contact with the child L at any place or by any means.
The Applicant Mr Chaudhary is restrained by injunction from approaching and/or making contact with the child S at any place or by any means.
A police officer may arrest the Applicant Mr Chaudhary without warrant, pursuant to s 68C of the Family Law Act 1975, if such police officer believes on reasonable grounds that the Applicant has, since these orders were made, breached the injunctions contained in the previous two paragraphs of these orders by:
38.1causing, or threatening to cause, bodily harm to the children or either of them; or
38.2harassing, molesting or stalking the children or either of them;
and it is to be taken for the purposes of this order that each of the injunctions in those paragraphs relate to the personal protection of the children or either of them.
Until further order the parties, by themselves, their servants or their agents are restrained from removing or attempting to remove the children L born … 2002 (female) and S born … 2004 (female) from the Commonwealth of Australia.
All officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Any Passport for the children held by any party is to be surrendered within 7 days of today’s date to be held by the Registry pending further order of this Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Choudhary & Hailey 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 PARRAMATTA

FILE NUMBER: PAC3292/2007

Mr Choudhary

Applicant

And

Ms Hailey

Respondent

And

Mr Choudhary Snr and Ms Kisani

Intervenor

REASONS FOR JUDGMENT

Introduction

The children L who is 14 (“the elder child”) and S who is 12 (“the younger child”) are the only children of parents who separated after a seven year relationship. Unfortunately the children have also been separated from one another, with the elder child having been essentially raised by her paternal grandparents for a number of years and the younger child remaining in the care of her mother and living with her mother’s other children.
On the day the matter was listed for the commencement of a final hearing, the father did not appear. He had not participated in the proceedings for some time. The mother and paternal grandparents reached agreement on most matters relating to the future parenting arrangements for the children and the Independent Children’s Lawyer (ICL) agreed that these arrangements were in the children’s best interests. Some short evidence from the parties, a witness and the family consultant was taken in relation to the outstanding matters and with respect to some issues of concern that I had identified.
Following that evidence the parties and ICL reached agreement on all matters, and so far as they are each concerned, the orders made were by consent. Orders relating to the elder child were made on a final basis, while orders with respect to the younger child were made on an interim basis. So far as the father is concerned, these orders were made on an undefended basis and some short reasons for judgment therefore need to be given. These are those Reasons.

Background

The children’s mother, Ms Hailey (the mother) and father Mr Chaudhary (the father) were each born in 1983 and at the time of the hearing were 33 years of age. The paternal grandfather, Mr Chaudhary Snr and his long-standing partner, Ms Kisani who the children regard as a grandmother (“the paternal grandparents”) are also parties to the proceedings. The paternal grandfather is 65 and the paternal grandmother is 51.
It appears that the parents’ relationship commenced in around 2001. The parents initially resided with the father’s family until the birth of their first child.
The parents’ first child, L, was born in 2002 and was almost 14 at the time of the final hearing. The second child, also a daughter, named S, was born in 2004 and was 12 at the time of the final hearing. There is some dispute about where the family lived following the birth of each of the children. The paternal grandparents say that the family lived with them, but the mother says she and the children were living separately. However, even on the mother’s case, the paternal grandparents have at all times had a significant involvement in the care of both children.
The parents had a highly conflictual and violent relationship, to which the children were exposed. Each of the parents also had a conflictual relationship with the paternal grandfather at times. According to a report provided by the Department of Family and Community Services (“Community Services”) numerous risk of harm reports about the children were made to Community Services from October 2005. Reported risks include allegations of domestic violence perpetrated by the father against the mother, physical abuse of the children and risk of psychological harm.
The parents separated in mid-2007 when the elder child was approximately five and the younger child was three. Following separation in circumstances which are not entirely clear, the children remained in the care of the paternal grandparents. Concerns about risks of harm to the children and each of the parent’s parenting capacity continued to be raised with Community Services following separation. So far as the mother is concerned, one of issues relating to risk of harm to the children concerned people with whom she had re-partnered following separation and the exposure of the children to family violence. In the paternal household, concerns included alleged physical abuse of the children, exposure to their father’s violence, and the father’s alcohol misuse.
The mother commenced parenting proceedings in the Federal Magistrates Court, as it was then known, in June 2007.
Final orders with respect to the children’s future care were made in January 2008 with the consent of the parties. Under these orders the father was to have sole parental responsibility for the children, they were to live with him and spend a gradually increasing amount of time with the mother on alternate Saturdays and Sundays. The orders also restrained the mother from permitting the children to have contact with Mr Z (a man with whom the mother had been in a brief relationship) and the maternal grandfather, Mr H.

In mid-2008, the mother gave birth to a child, Y, whose father is Mr Z, although it appears that she was not living with or in a relationship with Mr Z at the time.
The mother’s time with the children was initially supervised, and when it was due to become unsupervised the father refused to make the children available to her. The mother commenced a second set of parenting proceedings in November 2008, but it appears that these proceedings were subsequently dismissed.
In 2010 the mother had a child A, whose father was the mother’s then partner, Mr M.
The mother then commenced further parenting proceedings in June 2010 which were also finalised by consent orders in March 2011 in the Federal Magistrates Court. Pursuant to those orders the parents were to share parental responsibility equally, the children were to live with the father and spend time with the mother each alternate weekend from Friday evening until Sunday evening and half the school holidays. Restraints in relation to the children coming into contact with Mr Z or being left unsupervised with Mr H remained.
In late 2011, the mother gave birth to another child, E, whose father is also Mr M.
The mother became concerned about conflict in the paternal grandparents’ home, especially between the father and paternal grandfather. She was also concerned about the father’s alleged violence towards the children and the paternal grandparents’ alleged incapacity to protect the children. Police records indicate that there were numerous events relating to alleged harm to each of the children in the paternal household in 2012, 2013 and early 2014. Numerous notifications about the children were also made to Community Services during this period including allegations of physical abuse mainly said to have been perpetrated by the father. One allegation was that the elder child sent an indecent sexual image to a school friend and concerns were raised that she was engaged in sexual activity at the age of 11.
In around February 2014 the father informed the mother that he could no longer care for the children. Although the circumstances are not entirely clear, on 30 April 2014 a provisional apprehended domestic violence order (ADVO) was made against the father for the protection of the elder child. It appears that there was also a violent incident at the paternal home at around this time between the father and paternal grandfather.
On 9 May 2014 the mother retained the children in her care following their weekend time together. At the request of the father and paternal grandparents a number of welfare checks were carried out by police on the children when they were in the mother’s care. The mother received some assistance through the Brighter Futures program on the recommendation Community Services at this time.
The father commenced these proceedings in the Federal Circuit Court on 29 May 2014. By this stage he had moved from his father’s home to his own premises. A judge of that court suspended the orders that the children live with the father. In July 2014 the proceedings were transferred to the Family Court and allocated into the Magellan Program.[1]
[1] The Magellan Program is a program in the Family Court of Australia developed to deal with cases involving serious allegations of physical or sexual child abuse.
In July 2014 when she was 11, the elder child chose to live with her paternal grandparents and the parents acquiesced in her choice. The younger child remained living in her mother’s home with her younger half siblings.
Despite the existence of the ADVO, the paternal grandfather allowed the father to spend time with the elder child at his home. The paternal grandparents have also experienced some difficulties in relation to the elder child’s behaviour and some concerns have been raised about their parenting capacity. Community Services have been involved from time to time with the children in each of their households.
In January 2015, the parents and children were interviewed and observed by a family consultant for the purpose of preparing a Family Report. After the paternal grandparents filed an Application in a Case to intervene in the proceedings in February 2015, in March 2015 the mother, paternal grandparents and children were assessed by a family consultant. The father did not attend the family consultant in March 2015. By this stage it appeared that the father had re-partnered with a woman who also may have been pregnant with his child. The family consultant did not make any recommendations with respect to parental responsibility or the person with whom each of the children is to live. She was however, concerned about the fact that the children had not seen each other for some time and recommended that they spend time together at least once per fortnight without intrusion from either parent or grandparent and that the exchange of the children be facilitated by an independent third party, with the support of a supervised contact service provider or occur at school.
There were further concerns about the elder child’s behaviour in 2015 when the child was 13 and the mother says the child told her she was concerned that she may be pregnant.
Since at least February 2016, the elder child has been posting photographs of herself on social media in which she is wearing a hijab and expresses identification with the Muslim faith. Some of the images posted on the elder child’s Facebook page appear to show a concerning connection with extremism, including one in which a group of apparently young women are dressed in full burqas and are carrying assault weapons. In another, posting, which includes an image of a sword the child states that she is “Muslim, Shia and proud”.
At the time of the proceedings the younger child lived with the mother and her three younger half-siblings and the mother’s current partner, Mr N. Mr N was charged with assaulting the mother in January 2016 and despite an ADVO and bail conditions prohibiting Mr N from coming into contact with the mother and her children, when the final proceedings commenced Mr N was living with the mother and her children.
At the time of the proceedings, the elder child continued to live with her paternal grandparents.
The two children live some distance from one another and attend different high schools, where they both had been progressing well. In recent times the younger child has been displaying some behavioural difficulties at school. Since around October 2015 staff at the school were concerned about the child’s behaviour. She is reported as having been bullying and assaulting other children and appears to be experiencing mental health difficulties.
Although each of the children has expressed a desire to see each other from at least March 2015 when the Family Report was prepared, the adults in their lives have been incapable of facilitating this contact.

The proceedings - agreement reached

The father did not file an affidavit in accordance with trial directions and did not appear at the final hearing nor did any legal representative appear on his behalf. The mother and paternal grandparents were able to reach agreement about most matters and the ICL agreed that the orders the parties sought to be made with their consent were in the best interests of the children. Broadly, they reached agreement that it was in the best interests of the elder child to live with her paternal grandparents and that her grandfather should have sole parental responsibility for her. It was also agreed that it was in the best interests of the younger child that the mother have sole parental responsibility for her and that she live with the mother. The parties also agreed on an interim basis that it is in the younger child’s best interest for her to spend time with the paternal grandparents as agreed and failing agreement as determined by the mother and for the elder child to spend time with her mother as agreed and failing agreement as determined by the grandfather.
The parties also reached agreement about many ancillary matters, including communication, liaison with the school, restraints on physical discipline, discussing the proceedings with the children or passing information through them.
The outstanding matters upon which either agreement had not been reached or I expressed a concern that there was insufficient evidence to determine that the proposals were in the best interests of the children were as follows:-
·whether there was an unacceptable risk of harm to the younger child posed by the mother’s partner Mr N, with whom the mother resided, if the orders consented to were made.
·whether there were current concerns in relation to the well-being of the elder child associated with her possible expression of radical views which may require an invitation to the Secretary of Community Services to intervene in the proceedings.
·that specific orders may be needed to ensure support for the sibling relationship between the children, which had not been addressed in the respective parties’ proposals.
·issues in relation to the paternal grandparents’ protective capacity

The risk of harm posed by the mother’s partner, Mr N

In her affidavit the mother provides very limited evidence concerning her partner Mr N, except to say she has been in a relationship with him for eight months. In particular, although she described an occasion in October 2015, when police attended her home after she and Mr N “had an argument” and referred to a “police investigation after an incident” in January 2016, she did not disclose that Mr N had been violent towards her on both of these occasions and had been charged in relation to the January 2016 incident. She also did not disclose that Mr N’s bail conditions and an ADVO prohibited him coming into contact with her or the children.
The issues relating to a risk of harm associated with Mr N due to his history of violent conduct was raised on the first day of the final hearing.
The mother also confirmed under cross-examination that she had been in other violent and/or controlling relationships including with Mr M who was the father of two of her children. In particular, she said that she engaged in sexual relations with Mr M even though they were not living together and appeared to suggest she only agreed to do so to appease Mr M. She confirmed that she felt used by Mr M. The mother also confirmed that her short relationship with Mr Z ended following an incident of violence in which he threw a chair at her when she was 30 weeks pregnant.
When asked about the incident between herself and Mr N in October 2015, the mother initially said that there had been “an argument”. She later confirmed that Mr N had thrown rocks at her car and had pushed her into the car with sufficient force to leave a mark on her chest. This incident occurred two months after their relationship had commenced and subsequent to it, she and Mr N began living together. When cross-examined more closely about this incident, the mother said that she did not think that the incident in which Mr N pushed her into the car amounted to “being hit”.
The mother said that the incident in January 2016 occurred after a verbal argument and she attempted to leave the house. She said Mr N slammed her bag over her head numerous times, pushed her and kicked her and when she fell to the ground, dragged her back and pulled her. She escaped by running away and driving down the road and then took refuge in the car with the children. The mother confirmed that the assault was sufficiently serious that she was taken to hospital and that she was left with bruising to an arm and leg. She said that when she swore her affidavit in March 2016, she was hoping to have a relationship with Mr N in the future and for that reason they were living together. She said that she had lost hope for the relationship on the first day of the final hearing as she realised that she had to choose between losing her child and losing Mr N.
The mother was also cross-examined at length about other aspects of Mr N’s behaviour and the risk of harm he poses to her children and the related issue of the potential risk to the younger child’s wellbeing, as indicated by her behaviour.
So far as the younger child’s behaviour is concerned, the mother agreed that her affidavit implied that the child had been the victim of bullying at school. She agreed however that she had been contacted on a number of occasions since October 2015 by the school with complaints that the child was the perpetrator of bullying and had been suspended for this reason. The mother said that she had informed the principal about the child’s experience of domestic violence with her father but had not told the principal about the child’s current circumstances at home.
The mother confirmed that the younger child was aware that she (the mother) had been hospitalised following an assault by Mr N and that Mr N had been charged. The mother referred to the child seeing a counsellor at a women’s domestic violence service and seemed to have some awareness that the child’s mental condition and need for counselling was related to exposure to domestic violence. However, under cross-examination the mother struggled to accept that the greatest concern about exposure to family violence currently related to her relationship with Mr N and his conduct rather than the father’s conduct some years ago.
The mother was also cross-examined about records of Community Services in which it is recorded that Mr N’s daughter T made allegations about circumstances in the mother’s home including that the mother had held a knife to the younger child’s chest and that the mother hit all her children regularly. The mother vehemently denied that she had behaved in this manner.
The Department’s records indicate a range of complaints about the mother’s conduct in late 2015 including that she had pointed a knife at the younger child’s chest, that she threatened harm to Mr N’s daughter if the daughter complained about circumstances at home, and that the mother often pulls the hair of and hits the three younger children in the home. Complaints about verbal abuse of staff at the school were said to relate to both the mother and Mr N, as well as allegations made that both the mother and Mr N threatened to harm a child who was alleged to have been bullying Mr N’s daughter.
The mother did agree that Mr N had been banned from the school for verbally abusing the school principal in the presence of other parents. However, in my view, her answers under cross-examination indicate that she minimised the seriousness of Mr N’s conduct and that she failed to see any connection between the conduct to which the younger child was exposed and the child’s own bullying and other behavioural difficulties.
The mother was also cross-examined about her knowledge of concerns expressed by officers of Community Services about Mr N’s conduct when investigating complaints made about him.
Records relating to complaints made about Mr N include concerns by the police and Community Services that he may have access to firearms and that in light of his extensive history of violence and suspected involvement with an outlaw motor bike gang, officers were to only attend the home with armed police. The mother said under cross-examination that she was not aware that Mr N had access to firearms, was not aware of his extensive violent history and did not think he had involvement with a motor cycle gang. She said that she was not concealing these matters from the court and given all that she had been informed under cross-examination, she did have concerns about Mr N.
In relation to the question of the risk of harm posed by Mr N, evidence was also tendered from Local Court and police records about Mr N’s propensity to violence and his criminal history. Court records indicate that there was at the time of the final hearing an ADVO in place for the protection of the mother and her four children who lived with her (including S) against Mr N, and that in January 2016 he was charged with assaulting the mother. Mr N had been granted bail in respect of this offence and one of the conditions was that he have no contact with the mother, but on her own case, he was continuing to live with her and the children. Mr N also had a significant history of violence including convictions for domestic violence and breaching ADVOs.
After this evidence came to light, which had not been contained in the mother’s affidavit, the mother agreed to make immediate arrangements to move herself and the children from their current residence. The following day she conceded through her counsel that there was an unacceptable risk of harm to the younger child under the orders originally agreed to.
On the basis of the mother’s evidence concerning Mr N’s violence and his criminal history as revealed by police and court records, I am satisfied that there is an unacceptable risk that the younger child would be exposed to family violence if she were to live with her mother while Mr N continued to have contact with her mother. The parties subsequently consented to orders restraining them by injunction from causing or allowing the children to come into contact with Mr N and ensuring that any person who had the care or control of the children is aware of this order.
In my view there are still significant concerns about the mother’s protective capacity. On the evidence before the Court she has had four relationships with perpetrators of domestic violence and three of them are the fathers of her children. It is particularly concerning that she demonstrates an awareness of the need to protect her children from violence perpetrated by the father but continues to form relationships with other violent partners. So far as Mr N is concerned, on the mother’s own concessions under cross-examination, she moved in to live with him when she was aware of his violent conduct. He had assaulted her after the relationship had commenced and prior to moving in together. She was also aware that he had been charged with an offence of violence against her but still maintained a hope to continue the relationship in the future. This is a significant omission from her affidavit and a significant failure to recognise the risk of harm posed by Mr N. One of the reasons that the orders in relation to the younger child were made on an interim basis was to give the Community Services an opportunity to intervene in the proceedings and to monitor the mother’s engagement with services and monitor her protective capacity.
The orders with respect to the younger child were made on an interim basis, until August 2016. On that date the ICL is to provide the Court with updated information concerning a number of matters, including the mother’s engagement with additional services and therapists with respect to family violence, education interventions and counselling and her co-operation in the prosecution of Mr N and final ADVO application.

The elder child’s current behaviour and views and grandparents’ capacity

The paternal grandparents make no reference in their affidavits to views that had been expressed by the elder child in social media, which may raise concerns about possible radicalisation. They also provide scant evidence of recent behavioural problems and conflict between themselves and the child relating to her conduct. There had previously been concerns raised about the grandparents’ poor understanding of the impact of family violence upon children, their failure to protect the children from this harm and the paternal grandfather undermining previous court orders which at that stage had allocated parental responsibility to the father. This raised a concern about the paternal grandparents’ capacity to manage the elder child’s challenging behaviour and a possible need for the involvement of the Community Services. Previously, Community Services had been invited to intervene in the proceedings, but had declined. I was of the view at the final hearing that this involvement may need to be revisited.

Under cross-examination the paternal grandfather agreed that the elder child had been expressing an interest in the Islamic faith for around six months and that this had caused some difficulties with her behaviour. He said that this was mainly demonstrated in the child talking about religion and “dressing up in colourful clothes”, and he was not aware whether she had been pursuing any other practises. He agreed that he and the child had arguments about the issue, in particular on an occasion when she wanted to attend school with her head covered.
The grandfather further said under cross-examination that the school principal and the Community Services had become involved as there was concern that the elder child would not be permitted by him to live at home if she pursued this interest. The paternal grandfather denied that he had ever indicated that the child could no longer live at home on this basis. The paternal grandfather agreed that there had been some conflict over his concerns about the child’s mode of dress and agreed that he needed some assistance in dealing with this issue. The paternal grandfather said that he had not seen the child dress in an Islamic manner in recent times but was concerned about her “taking the wrong path”.
The paternal grandfather said he was aware that the elder child uses social media and said that his wife and daughter monitor it, though he had first become aware of concerning posts on the internet when the children’s mother telephoned him. The paternal grandfather agreed that he was upset and angry about the Facebook posts but “didn’t want it to make it very big” and asked his wife to look into the matter. He appeared not to have any other ideas about the steps that he could take to control the child’s use of social media and did not discuss with anyone the most concerning image, which showed the women holding guns.
The paternal grandfather clarified under further cross-examination that he would accept the child’s decision with respect to her faith but agreed that he was concerned that she may become radicalised and was concerned about other people’s influence, especially through the internet. He agreed that managing the child’s internet usage was very important.
When cross-examined about other aspects of his parenting capacity, the paternal grandfather denied that the elder child was allowed out late at night or that she had an independent social life. The paternal grandfather said that the child’s claims to the family consultant that she was allowed out late at night were incorrect. He agreed that he allowed the father to attend his home every two to three weeks and see the child but was unaware about any current concerns about his son’s violence. The paternal grandfather admitted that he did not know what to do to educate himself about the harm to the child that may be occasioned by exposure to violence.
The paternal grandmother said that she had been aware of the elder child dressing in an Islamic manner and posting images of herself on the internet for about twelve months or more. She said she had a few discussions with the child about her interest in the Islamic culture and said “I can tolerate it as long as it didn’t amount to misconduct”. She said that the paternal grandfather was not too happy about the child’s Islamic dress but said the two of them thought it was a phase she was going through related to her identity and “fitting in better”.
The paternal grandmother said she monitored the elder child’s social media use and was aware of some images that had caused her concern. Her concerns were also about the influence of others and becoming radicalised. The paternal grandmother said she had discussed these matters with the child who had said “she doesn’t believe in ISIS, she doesn’t want to join, and Islam is not like that”. She said as a result [she and the paternal grandfather] were satisfied but “kept their eyes open”. She said that the next matter of concern was earlier this year when the mother rang to tell them about the concerning image of women in burqas holding guns. The paternal grandmother said that she had a further conversation with the child who confirmed that she “really is interested in being a Muslim” and that she and the paternal grandfather agreed the best way to manage the issue is to take control and cut back on the child’s internet usage.
The grandmother said that since January 2016, she and the grandfather had instituted a rule that the elder child had to hand her phone to them by 9.30 or 10 pm. She said that the child also agreed that she would not use a particular Facebook page in the future and agreed that she and the paternal grandfather trusted the child with some caution.
The paternal grandmother said that a key person who could assist in the future would be the children’s paternal aunt who is close to the elder child and also an IT expert. She felt that this aunt, Ms C, was an important influence in the elder child’s life.
The paternal grandmother said under cross-examination she was aware that the elder child had a boyfriend, but did not think that she was sexually active. She was aware that the child had seen a doctor and had had a pregnancy test but said that it was found that the child had a hormonal problem and had recently seen a specialist. She said that the pregnancy test was only part of a process of elimination and was not aware that the child had at any stage claimed she was pregnant. The grandmother felt that issues associated with sexual activity or relationship problems could also best be handled by the aunt, Ms C.
The paternal grandmother was also cross-examined about her knowledge of the impact of domestic violence upon children. She said that currently if the father presented at the door of their home intoxicated she would close the door and said that she had in the last 18 months contacted police in relation to the father’s behaviour. She said the visits between the elder child and her father currently occur at about two to three times per month and last about 10 to 15 minutes.
The paternal aunt, Ms C, had filed an affidavit only concerning conversations she had had with the mother giving rise to her concern about the mother’s current relationship with Mr N, and concerning the issue of contact between the children.
Under cross-examination, the paternal aunt said that she had a minimal relationship with her brother (the children’s father), did not agree with his “disposition” or how he related to the children. She said that she had had a relationship with both of the children since birth.
In relation to the issue of the elder child’s internet use and her current interest in the Islamic faith, the aunt said she told the child that she could understand it, and would support her. She felt that the child’s interest in Islam was “one hundred percent about fashion and clothing”. She said the child had never mentioned Halal dietary rules or reading the Koran. She felt that the child’s interest in Islam was “selective” and that she did not want to stand out.
Arrangements were made for a family consultant to interview the elder child in the course of the final hearing. The family consultant, Ms G, spoke to the child and provided an oral report to the Court. The family consultant spoke to the child about her understanding of the Muslim faith and the posts she had made on Facebook and also spoke to her about her connection to her family and the community. The family consultant said the child was adamant that she did not have links to ISIS and claimed that someone had “hacked her Facebook”. She denied posting the most concerning image on Facebook.
The family consultant described the elder child as vulnerable and said she seemed to have a very strong connection to the paternal grandparents. The child said she was very close to the paternal aunt and the family consultant regarded these people as protective.
The family consultant also said that the elder child seemed very involved with a particular extracurricular activity (which is reiterated in the Affidavits of the paternal grandparents). The family consultant said she understood that one of the risk factors for radicalisation was isolation and a feeling of not being connected. The family consultant said that her understanding is that police concern about radical groups is that they work in secrecy and “groom” children in this way. Whilst she could not discount that the child was at risk, she felt that if the child had posted the images on social media as alleged, then it was less likely that she was involved in something concerning because it was not secret. She felt however but that it might be useful for the family to obtain some expert advice in relation to the issue. The family consultant also did not think there were any concerns about radicalism in connection with the elder child’s interest in her extracurricular activity. She felt that the child’s interest in that activity related to the leadership role, the discipline and the routine.
The family consultant also felt the interest for the elder child in being Muslim was about the child’s concerns of being different and that she was currently in a relationship with a boyfriend who was Muslim. The family consultant confirmed that the child said that she did not follow Halal dietary rules, though claimed that she did study the Koran. The child told the family consultant that she had attended a seminar but did not engage in any community group connected with her faith.
The family consultant said that the issue of wearing a head scarf was “coming between” the elder child’s relationship with her grandparents and felt that in wearing it the child may be making a dramatic statement. The family consultant felt that if the grandparents did not allow the child to wear a head scarf, this may become a problem. Overall, the family consultant felt that the child did not have a firm understanding of Islam and that wearing a head scarf was an artefact of her identity and especially associated with her boyfriend.

The children’s contact with each other

Under cross-examination, the paternal aunt said that she has always been in the children’s lives, she was there when they were young, she is there to guide them and remains available to support them. She expressed concern about the younger child being at some risk and had offered to have her over to sleep the night at her home. She said it would be “wonderful” to be a conduit for the children to see each other and that she would be “more than happy to assist”.
The paternal aunt, Ms C, presented as a very impressive witness. She impressed me as intelligent and insightful and had a good understanding of the complex history of the family dynamics, the current presentation of the elder child and, issues of risk for the younger child and the importance of facilitating a relationship between the children.
It appears that it had not previously been considered that the paternal aunt could play a role in facilitating the children spending time with each other. It also does not seem to have previously been considered that a professional therapist could become involved in assisting the parties and in particular the children in rebuilding their relationship with each other and the other adults in their lives. Neither the paternal grandparents nor the mother were able to provide a satisfactory explanation for failing themselves to facilitate the children spending time with each other though it was clear that they had been involved in the sending of text messages about the arrangements. In the course of the proceedings, all of the parties agreed to orders whereby the aunt and a therapist Dr V would assist in facilitating the children’s contact with one another. Dr V as also to be engaged for the purposes of assisting the mother and paternal grandparents to improve their parenting relationship.

The Law and Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
In this matter, when applying the primary and additional considerations to the proposals of the mother and paternal grandparents, the Court must not treat those considerations which specifically relate to parents as if they must equally apply to a non-parent party, in this case the grandparents.
In Donnell & Dovey[2], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under section 60CC is also relevant to a non-parent, this should be addressed under section 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the paternal grandparents, I will do so by application of s 60CC(3)(m).
[2] [2010] FamCAFC 15

Primary considerations: s 60CC(2)

The primary considerations (under s 60CC(2)) are:-
a.The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b.The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
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.
On an interim basis the orders do not provide for the children to spend any time with the father and restrain him from approaching or making contact with them. The father has not participated in these proceedings for some time and has played no part in the children’s lives other than to irregularly attend the grandparents’ home and see the elder child briefly. For the reasons given below I am of the view that there will be no positive benefit to be derived by either child “in attempting to craft orders to foster a relationship” with their father on an interim basis as this is not in their best interests.
So far as a meaningful relationship with the mother is concerned, the younger child will receive the benefit of that relationship under the interim orders as she will be living with her mother.
The elder child has been estranged from her mother for almost two years and speaks very negatively of her, expressing no interest in having a relationship with her. The parties have agreed to participate in family therapy to be facilitated by Dr V. Initially this therapy will focus on facilitating the sibling relationship but will also include repairing the fractured relationship between the elder child and her mother. Given the elder child’s alignment with her paternal grandparents and the proposed agreed order that the paternal grandfather have sole parental responsibility for her, I am of the view that the order agreed to on an interim basis with respect to the child’s time with her mother is in her best interests.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

In my view this is one of the most important considerations in this matter. Both children have been exposed to family violence in the care of each of their parents and show indications of having been psychologically harmed as a result. Each of the girl’s presentation to the family consultant showed matters of great concern. Each of the girls also reported that they were exposed to family violence when their parents were together. For example, the younger child said
…that she remembered; “Me and [L] were probably crying”, “people getting hit, people crying; can feel, feeling where you know something [is] going to happen, someone [is] going to get seriously hurt”. She said that she “didn’t feel safe”.
The child said that she liked her paternal grandparents but expressed concern that the grandmother did not intervene and “never stopped us getting hurt”.
The family consultant expressed the view:
It appears that in whatever context, the children appear to have been exposed the adult’s inability to deal with conflictual situation adequately, and in preventing the children being exposed to the conflictual and or violent behaviours. Which (sic) in turn, could have affected the girl’s biological or psychological development, and the girls own ability to self-regulated (sic) their responses/reactions when confronted with unexpected and stressful situations.

So far as the elder child is concerned I am satisfied that she will be protected from exposure to family violence in her grandparents’ household. Although I am of the view that the paternal grandparents are only just beginning to understand the psychological harm experienced by children who live with family violence I am satisfied that through these proceedings their knowledge of the issue has grown. I am particularly impressed that the paternal grandmother, Ms Kisani, has come to a better understanding of this matter and am of the view that the paternal grandparents are committed to protecting the child from family violence in their care. There is no suggestion that they have neglected the child in the past or will do so in the future, and despite having experienced difficulties in the management of the child’s behaviour at times, there is also no evidence that she has been subjected to abuse in their care.
The main concern in the paternal grandparents’ home is the presence of the father from time to time. Although there was somewhat conflicting evidence from the paternal grandparents on this issue, I gained the impression that his attendance at the home in recent times had been sporadic and that he would not be permitted inside the home if he were intoxicated. For the reasons given later in these Reasons, I am satisfied that the father perpetrated family violence against the mother throughout the relationship, against the paternal grandfather and in subsequent intimate relationships. There is an unacceptable risk the children will be exposed to family violence perpetrated by him unless his time with the children is supervised by someone other than the paternal grandfather. The father’s criminal history and the grandparents’ evidence indicate that there is a particular risk of violence associated with his use of alcohol. The grandparents will be strengthened in their capacity to exclude the father from their home through the orders restraining him from coming into contact with the children.
Significant risk factors arise in the mother’s household. Although I cannot be satisfied that the mother has physically abused the younger child and her other children, I am concerned that there is some risk that she has done so, particularly arising from the Community Services documents and reports of her violence made by the elder child to the family consultant. In addition, I am satisfied that the mother has formed numerous relationships with violent partners and that all of her children have been “exposed to family violence”, having regard to the meaning of that expression in the Act.[6]
[6] Family Law Act 1975 (Cth) s 4AB(3): “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”
The recent concerns about the younger child’s mental health and a likely connection between this and exposure to family violence indicate a great need to protect her (and the mother’s other children) from psychological harm when in the mother’s care. Although the mother appeared to suggest that she had only just become aware of Mr N’s extensive criminal history and violent behaviour, it is concerning that his aggressive and abusive conduct towards others such as school staff and her own experience of his violence in October 2015 did not deter her from moving with her children into his home. Further, although an Apprehended Violence Order had been put in place for her protection and Mr N was subject to bail conditions prohibiting contact with him she continued to live with him and omitted to make any reference in her affidavit to these significant matters.
During the adjournment I have invited Community Services to intervene in the proceedings and some monitoring of the mother’s protective capacity may be able to occur through the Community Services’ intervention.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of children and factors underlying those views

Each of the children expressed very strong views that they wished to remain living in their current households. The elder child was extremely critical of her mother and complained that she had been verbally and physically abusive for many years. She recited a long list of things that she ‘hated” about her mother.
The elder child was less negative when describing her views about her father to the family consultant and overall said that he had “stuck by me”. However she did describe incidents of conflict with him and said that he “is controlling and his personality, it’s not a good one”.
The elder child had positive things to say about her paternal grandmother because she had “been there” since she was born. She also spoke positively of her grandfather.
The elder child said the only option for the Court was for she and the younger child to live with the paternal grandparents. She said if ordered to live with her mother or father she would run away.
In my view, it appears that these views have been formed as a result of the children’s lived experience and some factors of influence in each household, especially given the high level of conflict between the parties.
The family consultant felt that particular weight should be attached to the views of the elder child who made it clear that the she would not remain in her mother’s home if she were required to live there. Given that she has previously unilaterally placed herself with her paternal grandparents, together with her age and the risk factors in the mother’s home I am of the view that significant weight should be attached to the elder child’s views with respect to where she wishes to live.
The younger child expressed the view that she was happy with her mother and wishes to remain in her mother’s household. However, she is younger and the risk factors in her mother’s care are particularly concerning. At this stage, on an interim basis, taking into account the totality of the best interest considerations I am of the view that the interim orders are appropriate. The younger child’s views are not given significant weight in coming to this view.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

The family consultant was of the opinion in July 2015 that
…there was nothing in [the elder child’s] narrative or expression which suggested she has a sense of shared warmth or connectedness with any family member in particular. Overall, [the elder child] presented as a hurt and rejected child trying to push the ones she loved away in order to protect herself from being hurt even more. While, (sic) she aligned herself with those she perceives will fulfil her wants and needs.
…
[The elder child] presented as being aligned with [the paternal grandparents].
The more current evidence from the family consultant who saw the elder child in the course of the final hearing indicates that she is closely attached to her paternal grandparents and aunt, Ms C. The child is estranged from her mother.
The younger child presented to the family consultant as being aligned with her mother. The family consultant details that “[The younger child] spoke warmly about her mother and that she loved everything about her mother.” While the child suggested she did not wish to see her father, she responded positively to his attempts to engage with her. The younger child identified the paternal grandfather “as acting more like a father towards her” and suggested that the paternal grandmother undertook tasks relating to ensure her basic needs were met. However, the child did not see the paternal grandfather or the paternal grandmother as being protective.
Under the agreed final orders for the elder child and the interim orders for the younger child each of the children will be residing with the person to whom they are most closely attached.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

The father has played no role at all in participating in long term decision making for either of the children for some years, even at a time when he held sole parental responsibility for them. His disengagement from these proceedings indicates that he has little interest in participating in long term decision making for them in the future, spending time and/or communicating with them. He has not spent any time with the younger child for some years other than in the course of the assessment for the Family Report, and only spends sporadic and brief time with the elder child at a time that suits him.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

It appears that the mother has maintained the children when they have been in her care.

Likely effect of change in the children’s circumstances

In my view this is a very salient consideration in this matter. This consideration is associated with the views of the children and appropriate weight to be given to them. If the elder child were to live with anyone other than her paternal grandparents under final orders there would be a high likelihood according to the family consultant that the child would not cooperate with them and would return of her own volition to her paternal grandparents. In other words it is likely that she will not tolerate any change in her circumstances. On a practical level the mother is not in a position to have the elder child come into her care in any event and the father who may have previously sought orders that the child live with him has disengaged from the proceedings and has little involvement in her life. Any change in the elder child’s current circumstances would cause enormous disruption in the child’s life.
At this stage, having only made interim orders with respect the younger child, there is no change in her circumstances currently being contemplated. In the event the paternal grandparents seek that she reside with them in the future or if Community Services become involved and have another proposal for the younger child’s living arrangements that issue will be dealt with at that stage.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

There is no provision for either of the children to spend time with their father. Having regard to where the mother lives it does not seem that there would be any practical difficulty or significant expense if the parties were to agree that it was in the elder child’s best interests to spend time with her mother.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

This is also a significant consideration in this matter. The paternal grandparents have shown a capacity to meet both children’s needs to some extent throughout their lives. It is not in dispute that at one stage following separation both children lived with the paternal grandparents and they have been caring for the elder child for around two years.
It is clear that the paternal grandparents are capable of meeting the children’s material and day-to-day needs. In this regard they have more than adequately met the children’s needs as they have taken the children on overseas travel. However, there are some concerns about the grandparents’ capacity to meet the children’s emotional needs in the past, in that it does not appear that they always protected the children from violence perpetrated by the father in particular. In recent times it appears that the grandmother has gained a greater understanding of the emotional impact on children of being exposed to violence.
I also had some concerns that the grandfather may not have fully disclosed the struggle he had experienced in recent times with the elder child’s behavioural challenges and was also concerned that there may be an incapacity to deal with potentially seriously challenging behaviour associated with her current interest in the Islamic faith.
However, following cross-examination of the paternal grandparents and two family consultants including Ms G, who interviewed the child in the course of the hearing, I am satisfied that the grandparents have the capacity to manage the elder child’s current challenging behaviour and also have the resources to seek assistance from appropriately qualified experts in relation to the issue. The family consultant who assessed the family for the purposes of the Family Report provided the grandparents with information concerning organisations that could assist them in this regard.
Further, it only became apparent in the course of the final hearing that another valuable family member with impressive capacity to meet the children’s needs is the paternal aunt, Ms C, who gave evidence of the emotional, psychological and practical support she could and has been providing to the children.
Very real concerns arise about the father’s capacity to provide for the children’s needs. At an earlier stage following separation, the father held either sole parental responsibility or equal shared parental responsibility for the children and they were to live with him for a number of years. However, he effectively abdicated his responsibility for the children’s care to his parents and at one point informed the mother that he could no longer care for the children.
The greatest concern that arises in relation to the mother’s capacity is her capacity to protect the children from harm posed by her partners. This issue is dealt with at length when considering the need to protect the younger child from harm arising in her household associated with the mother’s relationship with Mr N.

Maturity, sex, lifestyle and background (including culture and traditions) of the children either parent

The children are adolescent girls who have been the subject of an extremely disruptive lifestyle throughout their life. The paternal grandparents who will hold sole parental responsibility for the elder child have been constant figures in the children’s lives.
The children are of Country D heritage through their paternal side and there was some evidence given by the paternal aunt that they enjoy the culture and traditions of their Country D heritage when spending time with the aunt and when living with the paternal grandfather. I am of the view that the paternal aunt will assist with facilitating the younger’s enjoyment of her Country D heritage when spending time with her.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

It is a matter of some significance that the father failed to attend the Family Report assessment, abdicated his parental responsibility for the children to his father and has been disengaged from these proceedings. His actions over the years show a poor attitude to the children and responsibilities of parenthood. While the father attended the first interviews and observations in January 2015 for the preparation of the Family Report, when further interviews and observations were scheduled on 18 March 2015, the father left a message for the family consultant he would not be attending. On 31 March 2015, in a phone call with the family consultant, the father advised he could not attend because “he had enough of everything and [he] just [couldn’t] handle it” and that “[he] had to stay away to save all the drama”.

Family violence

I am satisfied that the children were exposed to violence perpetrated by their father against their mother prior to their parents separating. I am also satisfied that when the children were living with their father at the paternal grandparents home, that they were exposed to violence perpetrated by their father against their grandfather. I am of also satisfied on occasions that there were legitimate concerns about the father’s violence towards the children. My reasons for these findings are as follows.
The father’s criminal history indicates that he has a long history of violence, including a conviction for malicious wounding as a youth prior to forming a relationship with the mother. As an adult he has been charged with assault on 10 occasions. While he was not convicted for all offences, on some occasions this was because no evidence was offered and it may be inferred that witnesses did not attend court. However, during the period in which the children were living with the father and he had parental responsibility for them he was convicted for a charge of assault on two occasions. One was sufficiently seriously to result in a term of periodic detention which was imposed when he did not comply with a suspended sentence. The father has had a number of further convictions during the time when he shared parental responsibility with the mother and the children lived predominantly with him in the grandparents’ home. These convictions include a number of matters of violence, and contraventions for domestic violence orders.
Of significance, the father’s pattern of offending has intensified with numerous convictions for assault, contravening ADVOs and assaults which are specified as domestic violence assaults on his record from 2012 to 2015. Although none of the Statements of Facts upon which he was sentenced and relevant police records are available, this history of convictions itself supports a finding that the father was a perpetrator of family violence when the children were in his care and has continued to perpetrate family violence in other relationships since separation from the mother.
I am satisfied that there is an unacceptable risk that the children would be exposed to family violence if they spent unsupervised time with their father. There is no proposal before the Court, nor has there ever been a proposal for the father’s time to be supervised and he has disengaged from the proceedings.
Although there have been allegations that the paternal grandfather may also have been the perpetrator of family violence, there is insufficient evidence for me to be satisfied as to this allegation. The greatest concern in any event seems to be conflict and violence between the paternal grandfather and the father. As the father has only had sporadic contact with the paternal grandfather and the elder child at the grandfather’s home and the parties have agreed to a restraint on the children coming into contact with the father, I am satisfied that there is not an unacceptable risk to the child under the orders agreed to by the parties participating in the proceedings.
My concerns about family violence perpetrated against the mother to which the younger child has been exposed have been dealt with at length in these Reasons. It suffices to say that it is a matter of concern that the mother’s four partners, three of whom are parents of her children, have been the perpetrators of family violence.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

Both the orders with respect to the elder child and the orders with respect to the younger child make no provision for the children to spend time with the father. These orders run the risk of leading to a possibility or even likelihood that he may institute further proceedings. However, in circumstances where the father has been disengaged from the proceedings and they have been dealt with on an undefended basis so far as he is concerned, it is not a weighty factor.

Any other relevant fact or circumstance

As noted earlier in these Reasons, I had some concern about the risk that the elder child may be expressing some extremist views and possibly being influenced by those who have an interest in promoting extremist views. While some helpful evidence was given by a family consultant in the course of a final hearing to determine the child’s views concerning her interest in the Islamic faith, the family consultant did not claim expertise concerning the issue of radicalisation and I cannot conclude that there is no risk to the child’s wellbeing associated with extremism. The child denied placing the most concerning image (that of women dressed in burqas holding machine guns) on her Facebook page but I am unable to determine whether it is possible for another person to have done so as she claimed. In my view some concerns do arise for the wellbeing of the child in relation to this issue.

Although I have made final orders in relation to the elder child I have also invited the Department to intervene in relation to the proceedings so far as they relate to the younger child. It may be that the Department is able to offer some support to the elder child’s grandparents who will hold sole parental responsibility as a result of the orders I will make. It is also hoped and the grandparents are encouraged to seek some expert assistance by the agencies suggested by the family consultant.

Parental responsibility

The paternal grandparents and the mother reached agreement that it was in the best interests of the elder child for the paternal grandfather to have sole parental responsibility for her on a final basis. It was also agreed that it was in the best interests of the younger child that the mother have sole parental responsibility for her on an interim basis.
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother and paternal grandparents must mean that each party seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other party would have none of the duties, powers, responsibilities and authority with respect to the child.
In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[7] (2006) FLC 93-286
Where the Court is to determine parental responsibility between parents, the starting point is s 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Further, an order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.[8]
[8] See Donnell & Dovey [2010] FAMCAFC 15 at [121].
As discussed above, I am satisfied that the father has perpetrated family violence, and as such the presumption of equal shared parental responsibility does not apply between the parents. As this matter involves non-parents, the presumption does not apply to the paternal grandparents.
The issue must therefore be determined by a consideration of the children’s best interests.
Given the father’s aberrant behaviour, attitude to the responsibilities of parenthood and disengagement from the proceedings I am satisfied that the father should not hold parental responsibility.
The mother and grandparents appear to have made unilateral decisions for the children when the children have been in their primary care. They have demonstrated a limited ability to jointly make decisions for the children. I am satisfied that it would be in the children’s best interests for their primary carers have sole parental responsibility for them.

Conclusion

Having regard to all of the factors in relation to the best interests of the children and attaching particular weight to the need to protect the children from harm, the nature of the children’s relationships and the attitudes to the children and responsibilities of parenthood and family violence. I am of the view that the orders proposed by mother and grandparents are in the children’s best interest.
Accordingly, I make orders as sought by the mother and grandparents. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 July 2016

Legal Associate:

Date: 5 July 2016

[2016] FamCA 541

5 July 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing