Ivanov and Ivanov

[2013] FamCA 721

FAMILY COURT OF AUSTRALIA

IVANOV & IVANOV [2013] FamCA 721

FAMILY LAW – CHILDREN - Interim parenting – Mother’s application for interim time with the children supervised at a contact centre – Opposed by both father and Independent Children’s Lawyer – Disputed allegations of family violence and risks of harm to the children in respect of the mother – Application dismissed

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Ivanov

RESPONDENT: Ms Ivanov

INDEPENDENT CHILDREN’S LAWYER: Ms Youseff

FILE NUMBER: PAC 3831 of 2009

DATE DELIVERED: 27 August 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hernandez

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Youseff

Marsdens Law Group

Orders

1. The father be granted leave to be excused this afternoon when Judgment is delivered, and it is noted the Independent Children’s Lawyer will inform the father of the decision.

Later

1. The mother’s Application in a Case filed 15 July 2013 be dismissed.

2. The parties and the Independent Children’s Lawyer shall agree between them to jointly appoint a single Chapter 15 expert witness to prepare a report for the Court’s assistance in this matter.

3. The document handed to the Court by the Independent Children’s Lawyer shall become Court’s Exhibit 1 in today’s proceedings.

4. Orders be made in accordance with paragraphs 2 in its subparagraphs, 3, 4 in its subparagraphs, 5 and 6 of Court’s Exhibit 1, subject to the following amendments:-

   (a)At the end of 2.13 following the wording “point of time” adding “, and whether any therapeutic services are required to support the children when spending time with either parent”.

   (b)At the end of 4.1 following “A copy of these orders” adding “and the report of Dr B dated 10 April 2010”.

5. Further conduct of this matter be by way of the Less Adversarial Trial process before myself.

6. The matter be listed for a First Day Intake of the Less Adversarial Trial on 19 December 2013 at 10.00 am.

7. Leave be granted to the Independent Children’s Lawyer to relist the matter on twenty-four (24) hours’ notice in the event that there are any difficulties associated with the obtaining of the expert’s report.

Court’s Exhibit 1:

1. No order.

2. In preparing the report to the Court, the Expert be and is requested to consider the following matters:

   2.1The nature of the relationship between the children and the parties.

   2.2The likely effect of any change in circumstances including the likely effect on the children of any separation from either parent, grandparent, or other.

   2.3The capacity of the parties or any other person to provide for the needs of the children including physical, emotional and intellectual needs.

   2.4The maturity, sex, cultural background and any other characteristics of the children or either party that the expert thinks are relevant to the welfare of the children.

   2.5Any physical or psychological abuse and/or which has occurred or is likely to occur.

   2.6Any ill treatment or family violence or other abusive behaviour that is directed towards the children, a member of their family, extended family or significant person and the likely impact of that on the children.

   2.7Whether any party has any psychological impairment or psychiatric condition that has affected or will affect their ability or capacity to parent the children and the relevance of the same.

   2.8Whether any party has any substance, or alcohol abuse history or continues to abuse substances (including but not limited to illicit drugs), or alcohol, and whether such abuse has affected or will affect their ability or capacity to parent the children and the relevance of the same.

   2.9The attitude of the parties to the responsibility and duties of parenthood.

   2.10The attitude of the parties toward each other and their willingness and ability to facilitate a close and continuing relationship between the children and the other parties.

   2.11Allegations by either of the parties relating to physical or emotional abuse of the children or other family members.

   2.12What, if any, parenting, relationship or education and/or training and/or counselling would be of benefit to any of the parties in order to improve their parenting capacity and relationships with the children and other parties.

   2.13Recommendations as to the amount of time the children shall spend with either parent and whether supervision is necessary at any point of time, and whether any therapeutic services are required to support the children when spending time with either parent.

   2.14Such further issues as the expert considers relevant.

3. The parties shall attend upon the expert at times provided to each party by the expert.

4. The Independent Children’s Lawyer shall have leave  to provide to the expert  by way of instructions:

   4.1A copy of these orders and the report of Dr B dated 10 April 2010;

   4.2Copies of all documents produced under subpoena, leave for such copying to be granted to the Independent Children’s Lawyer or his nominee and to be completed at the expense of the Court;

   4.3Copies of all material filed by either party in these proceedings; and

5. Such further documents as the parties and the Independent Children’s Lawyer may agree upon.

6. The remuneration of the expert be borne equally by each party unless eligible for legal aid.

7. The parties shall sign all documents and give all consents to allow such an assessment to occur.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ivanov & Ivanov 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: PAC 3831 of 2009

Mr Ivanov

Applicant

And

Ms Ivanov

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the children Jett, who is 10, and twins C and D, who are 8, the children of Mr and Ms Ivanov.

2. The parties were married in 2005 and separated on a final basis in July 2007.

3. Final Orders were made by consent by Stevenson J on 27 October 2010 for the children to live with each of the parents in a week about arrangement.

4. The mother’s time was then suspended by Justice Johnston on 7 February 2011 following what I understand was a breach or non-compliance by the mother in respect of those Final Orders.  A Recovery Order issued for the children to be returned into the father’s care, and since that time, the children have spent no time with their mother.

5. This application relates to interim parenting orders.  The mother is seeking to re-establish a relationship with her children, and seeks that her time with the children recommence at the Suburb E Contact Centre on a supervised basis.  The father opposes the mother having any time with the children on an interim basis, and this is also his position on a final basis.  The Independent Children’s Lawyer does not support the mother having any time with the children at this stage.

The uncontested facts

1. The parties separated in July 2007 when the children were aged almost 5 and almost 3.

2. Since the date of separation, there have been a number of allegations of harm due to the parents arguing and the mother excessively drinking.  The mother also tested positive to illicit drug use, which she asserted was a result of having been drugged by the father.  There have also been numerous allegations since the date of separation made by the mother of violence by the father towards the children and numerous allegations of sexual harm perpetrated by the father against the children.

3. Final Orders were made by consent on 27 October 2010 for the children to live in a week about arrangement with their parents.  One of the Orders made related to the possibility that the mother may fail to comply with or intentionally breach the Orders, and provided that if this occurred then the Orders providing for the children to live with / spend time with the mother would be suspended and the children would remain living with the father pending further application to the Court.

4. In early 2011, the mother commenced proceedings seeking to have the Order relating to the father spending time with the children suspended and the father commenced separate proceedings alleging that the mother had contravened the Court Orders.  On 7 February 2011, an Order was made suspending the Orders relating to the children living with and spending time with their mother.  No further application was brought for a matter of years.

5. Two days after the Orders were made, on 9 February 2011, the mother attended the father’s address armed with a baseball bat, which she used to smash the front window of the premises in the presence of the father and the children causing glass shards to fly towards them.  The father removed the children to the rear of the house, and the mother completely destroyed the glass and wood window frame and then climbed through the hole and chased the father through the house.  There was a struggle at the gate and the three children took refuge in a neighbour’s yard.  The mother swung the baseball bat towards the father, who took hold of it and threw it away, and the mother then struck the father with her fists on multiple occasions to his face, jaw and upper body.

6. The mother was charged, convicted and sentenced to imprisonment in relation to the incident.  The sentence was imposed in January 2012, but backdated so that the mother did not spend any additional time in prison. 

7. In March 2012 the mother applied for legal aid and in October 2012 made an application for parenting orders.  In April 2013, the mother filed an Amended Application in the substantive proceedings.  An Independent Children’s Lawyer was appointed on 4 April 2013. 

The parties’ documents

1. The documents the parties rely upon are as follows:-

2. The mother:- her Application in a Case filed 15 July 2013 and her affidavit in support sworn 12 July 2013 and filed 15 July 2013.

3. The father:- his unsworn and unfiled Response to an Application in a Case and two unsworn and unfiled Affidavits in support, that both myself and the other parties have had the opportunity to read today.

4. The Independent Children’s Lawyer seeks that I have reference to:-

   a)A Police Fact Sheet tendered to me during the proceedings, which I will mark as Exhibit 1;

   b)The Magellan Report dated 11 January 2010, which I will mark as Exhibit 2; and

   c)A previous report prepared by Dr B dated 13 April 2010; which I will mark as Exhibit 3 in today’s proceedings.

The Submissions

1. The mother essentially submits that as it is likely to ultimately be found that it is in the children’s best interests to spend time with their mother, the rebuilding of their relationship should commence as soon as possible, considering that the mother has not seen the children for two and a half years.  It is submitted that the suggested harms associated with the rebuilding of their relationship will be eliminated as the proposed time to be spent together is to be supervised.  It is also submitted that the observations of time spent together at the contact centre will be able to be utilised by the expert in providing a report to the Court about the level of contact which is in the best interests of the children. 

2. It is submitted that because the mother was originally the primary care giver then became a shared care giver after the 2010 Court Orders, and is now having no contact, the children have effectively lost their mother.  In addition, it is submitted that whilst spending no time with their mother, the children have not maintained contact with their Aboriginal culture.

3. It is further submitted that any of the issues in relation to concerns about the mother, such as alcohol and drug use, have been addressed and that she has effectively been punished sufficiently for the significant error she made in her actions on 9 February 2011.

4. The father effectively says that the children have been significantly traumatised, both by the behaviour of the mother during the separation, after the Final Orders, and particularly as a result of her actions on 9 February 2011.  He also submits that the children have settled considerably since they have not spent time with their mother and that it is not in the children’s best interests to spend time with her on an interim basis or at all. 

5. The Independent Children’s Lawyer does not support the orders proposed for the mother to spend time with the children at this stage, particularly in light of the significant event on 9 February 2011.  On the basis that there has been no time spent together since that date and the contents of Dr B’s report, which was prepared prior to the Orders being suspended, the Independent Children’s Lawyer recommends that the Court approach the matter with great caution.  The Independent Children’s Lawyer is concerned that it is possible that an expert may recommend that it is not in the children’s best interests to have contact with their mother, and as a long term supervision order is not practicable or likely to be imposed then there is an element of risk in reintroducing the children to their mother at this stage.

6. The Independent Children’s Lawyer also submits that it appears that the children were significantly traumatised by the February 2011 incident.  She also submits that the mother has not addressed her own issues in relation to the care of the children, but has focused on criticising the father and making new allegations.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must give effect to the relevant objects and principles in the Act. The objects of the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting and principles underlining it are set out in section 60B of the Act, and are as follows:-

   (1) The objects of this Part are to ensure that the best interests of the 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;

   (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.

3. The principles (set out in subsection (2)) underlying these objects are (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).

4. Section 60CA 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.

Framework for interim applications

1. In the matter of SS & AH[2], the majority (Boland and Thackray JJ) said at paragraph 100:-

   Apart from relying upon the uncontroversial or agreed facts, a Judge will sometimes have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that an uncontroversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13

2. In this regard, I must consider the assertion from the father that the children have been traumatised by their experience of the mother in relation to her repeated allegations of harm by the father and the incident on 9 February 2011.  I must also consider the various documents attached to the mother’s affidavit supporting her allegations of harm perpetrated by the father.

3. Goode (supra) sets a framework for the conduct of interim proceedings. After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility. However, in this case, the Applicant is not seeking an order in relation to parental responsibility for the children and at this interim stage, it would not be appropriate in the circumstances to apply the presumption under section 61DA(1) of the Act that it is in the best interests of the children for the parents to have equal shared parental responsibility for them as so many critical facts are unknown or in dispute.

4. As I consider the presumption of equal shared parental responsibility is not appropriate in these circumstances, the statutory consequences do not follow and the Court must make such order as is in the best interests of the children as a result of consideration of the matters set out in section 60CC.

Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (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.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b). In this matter, there are serious allegations made by both parents about physical and psychological harm to the children. I do not find it difficult to accept that the children would have been very traumatised by their involvement in the actions of the mother on 9 February 2011, and I also note the opinion expressed by Dr B that the extensive allegations, particularly of sexual abuse made by the mother, is an abusive process on the children.

3. Section 60CC(3) sets out additional considerations, and I will refer to those which are relevant in this case.

4. The nature of the relationship of the children with each of the parents currently has no doubt been affected by the fact that only one parent has effectively had a relationship with the children over the last two and a half years.  Dr B’s report, and the documents from various service providers assisting this family, indicate that all children had a close relationship with both of their parents prior to the separation.  However, in light of the separation of the children from their mother for such an extensive period of time, and the traumatic event on 9 February 2011, it is likely the relationship between the mother and the children would be significantly damaged.

1. In relation to the likely effect of any changes in the children’s circumstances, including the likely effect on them of being reintroduced to their mother, I accept the submission of the Independent Children’s Lawyer that the reintroduction at this stage, in the event that there is a possibility that a Court in the future may order no time be spent between the children and their mother, could be very traumatic for the children and not in their best interests.  This is especially so because the matter will now be dealt with some expedition now that it will remain in my docket and proceed in the Less Adversarial Trial.

2. There are currently some significant practical difficulties if I were to grant the mother’s application today in that the contact centre will not be able to facilitate contact occurring there for at least a matter of weeks, possibly months, by which time, the expert report may very well have been obtained.

3. On the uncontested facts before me, I have concerns about the capacity of the mother to provide for the emotional needs of the children.  Although, she has now recognised the likely emotional impact upon the children resulting from her actions on 9 February 2011, it is not clear that she recognises the impact, or likely impact, resulting from the constant allegations she makes against the father.

4. Another of the additional considerations relating to determining the children’s best interests relates to the lifestyle, culture and tradition of the children and their parents, and further there are specific provisions relating to the benefit of cultural considerations for Aboriginal children.  The mother is of Aboriginal descent and I am informed that the children identify as Aboriginal.  However, it is not clear on the limited proposal for time to be spent between the mother and the children, and as it is proposed to be spent at a supervised contact centre, how participation in culture or cultural traditions can be better promoted in this setting.

5. Subparagraph (j) refers to family violence involving the children or a member of the children’s family.  These children have been exposed to one very significant event of family violence on the uncontested facts, though there are other allegations made by the mother in relation to historical domestic violence, which are in dispute.

Conclusion

1. In coming to a decision about what orders are in the best interests of these children, I must balance the various matters to which I have referred.  In my view, whilst it is most unfortunate that this application is only being determined now, two and a half years after the children last saw their mother, it remains a fact that this is a significant period of time for children of this age.

2. This is not a case where the mother is being punished for her actions on 9 February 2011, but rather the case must be determined on the basis of the children’s best interests.  I accept the submission made by the Independent Children’s Lawyer that reintroducing contact at this stage involves some level of risk, though I make it clear that I do not accept in this application the father’s position that the children spending any time with their mother at any time in the future is not in their best interests.

3. Having regard to both the primary considerations and the additional considerations set out in section 60CC of the Act and in light of the history of the matter, I am not of the view that reintroducing the mother to the children at this stage, and even at a contact centre, is in their best interests.

4. As I said earlier in the proceedings, it may very well be that if the mother is to spend time with the children, that they should be reintroduced to one another in a therapeutic and supportive environment.

5. Accordingly, the mother’s interim application in respect of parenting orders is dismissed.

6. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam J delivered on 28 August 2013.

Associate:     

Date:              12 September 2013