FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kneib & Kovacheva [2024] FedCFamC2F 180
File number(s): PAC 2720 of 2019 Judgment of: JUDGE BECKHOUSE Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – PARENTING – Whether father poses unacceptable risk of harm to the child – Unacceptable risk cannot be mitigated or ameliorated against – Order for no time between the father and child – Whether paternal grandmother should spend time with child. Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65D
Cases cited: Blanch & Blanch & Crawford (1999) FLC 92-837
Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson (2023) FLC 94-129
Champness & Hanson (2009) FLC 93-407
Chapman & Palmer (1978) FLC 90-510
Donnell & Dovey (2010) FLC 93-428
Isles & Nelissen (2022) FLC 94-092
Moose & Moose (2008) FLC 93-375
Napier & Hepburn (2006) FLC 93-303
Ramzi & Moussa [2022] FedCFamC2F 1473
Slater v Light (2013) 48 Fam LR 573
Division: Division 2 Family Law Number of paragraphs: 289 Date of hearing: 19, 20 and 21 September 2023 Place: Parramatta Counsel for the Applicant: Mr Blank Solicitor for the Applicant: Solve Legal Counsel for the First Respondent: Ms Bateman Solicitor for the First Respondent: Ark Law Lawyers For the Second Respondent: Self-Represented Litigant Counsel for the Independent Children's Lawyer: Mr Macarounas Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
PAC 2720 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KOVACHEVA
Applicant
AND:
MR KNEIB
First Respondent
MS KNEIB
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
14 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
Parental responsibility
2.The Applicant Mother (“the Mother”) have sole parental responsibility for X born 2017 (“X”).
3.X shall live with the Mother.
Spend time with arrangements
4.X shall spend no time with the First Respondent Father (“the Father”).
5.X shall spend time with the Second Respondent Paternal Grandmother (“the Paternal Grandmother”) on two (2) occasions each year for up to six (6) hours on each occasion as follows:
(a)commencing 2024, on a day in December nominated by the Mother, provided it is within seven (7) days of Christmas Day, and
(b)commencing 2025, on a date nominated by the Mother in the month of July.
6.The time between X and the Paternal Grandmother will be arranged in the following manner:
(a)The Mother and the Paternal Grandmother will communicate via the Divvito parenting application.
(b)The Mother shall give the Paternal Grandmother at least fourteen (14) days advance notice of the nominated date and location.
(c)The Mother shall propose three (3) dates and the Paternal Grandmother shall select one (1).
7.The Paternal Grandmother shall advise the Mother immediately if she becomes aware of any potential breaches of the restraints set out in Order 10 (whether intentional or not) or if the Father comes into contact with X.
Communication
8.The Father is…
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- Kneib & Kovacheva [2024] FedCFamC2F 180
- Case
- [2024] FedCFamC2F 180
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CaseChat Overview and Summary
The primary legal issues for the court to decide were whether the father posed an unacceptable risk of harm to the child that could not be mitigated, and if so, whether the paternal grandmother should be allowed to spend supervised time with the child. The court was required to consider the best interests of the child in making these determinations, weighing the evidence presented by both parties and the recommendations of the Independent Children’s Lawyer.
In delivering the judgment, the court found that the father posed an unacceptable risk of harm to the child that could not be adequately mitigated. The evidence indicated that the father had a history of violent behaviour and substance abuse, and there were concerns about his potential to harm the child both physically and psychologically. Given these findings, the court determined that it was in the child’s best interests to have no unsupervised contact with the father. Regarding the paternal grandmother, the court found that supervised contact was in the child’s best interests, provided certain conditions and restraints were imposed to protect the child from any potential harm.
The final orders of the court discharged all previous parenting orders, granting sole parental responsibility to the mother. The child was ordered to live with the mother and have no unsupervised time with the father. The paternal grandmother was granted supervised contact with the child under strict conditions, including limitations on communication and contact with the father and other paternal family members. The court also made specific orders regarding the change of the child’s name, international travel, and therapeutic treatment.
Orders
Orders of the court
PAC 2720 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KOVACHEVA
Applicant
AND:
MR KNEIB
First Respondent
MS KNEIB
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
14 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
Parental responsibility
2. The Applicant Mother (“the Mother”) have sole parental responsibility for X born 2017 (“X”).
3. X shall live with the Mother.
Spend time with arrangements
4. X shall spend no time with the First Respondent Father (“the Father”).
5. X shall spend time with the Second Respondent Paternal Grandmother (“the Paternal Grandmother”) on two (2) occasions each year for up to six (6) hours on each occasion as follows:
(a) commencing 2024, on a day in December nominated by the Mother, provided it is within seven (7) days of Christmas Day, and
(b) commencing 2025, on a date nominated by the Mother in the month of July.
6. The time between X and the Paternal Grandmother will be arranged in the following manner:
(a) The Mother and the Paternal Grandmother will communicate via the Divvito parenting application.
(b) The Mother shall give the Paternal Grandmother at least fourteen (14) days advance notice of the nominated date and location.
(c) The Mother shall propose three (3) dates and the Paternal Grandmother shall select one (1).
7. The Paternal Grandmother shall advise the Mother immediately if she becomes aware of any potential breaches of the restraints set out in Order 10 (whether intentional or not) or if the Father comes into contact with X.
Communication
8. The Father is permitted to send X a letter, gift, and/or cards (“communication”) on two (2) occasions each year as follows:
(a) For her birthday and at Christmas.
(b) The communication will be posted to an address nominated by the Mother from time to time.
(c) Within six (6) months of these Orders, the Mother shall nominate a postal address on the Divvito parenting application.
Injunctions
9. The Paternal Grandmother is restrained by injunction from:
(a) removing X from the spend time with location at Order 6(b), unless with the written agreement of the Mother;
(b) passing on to X communication or contact information, such as email addresses or mobile numbers, whether from the Father or other members of the paternal family;
(c) circulating photographs or video recordings of X to any third party;
(d) connecting with X or knowingly allowing any member of the paternal family to connect with X via any social media accounts including but not limited to Facebook, Instagram, TikTok, Snapchat;
(e) disclosing to the Father any information she might have about X’s residential address, the school she attends, and/or the spend time with location at Order 6(b);
(f) bringing X into contact with the Father and any paternal family members, except for the paternal cousin, B;
(g) denigrating the Mother, members of the Mother’s extended family, or a person with whom the Mother has a relationship in the presence or hearing of X; and
(h) discussing the these proceedings, or any allegations raised in these proceedings with X.
10. The Father is restrained from entering or coming within 100 metres of:
(a) the place of residence of the Mother and X; and
(b) any school or educational institution attended by X; and
(c) any location where the Paternal Grandmother and X are spending time in accordance with Order 5.
11. The Mother shall ensure that she does not denigrate the Father or the Paternal Grandmother in the presence or hearing of X, nor discuss these proceedings or any allegations raised in these proceedings with X.
Change of name
12. X, previously known as X Kneib born 2017, be known as X Kneib-Hornik.
13. The Mother apply to the New South Wales Registry of Births, Deaths and Marriages to register the change of X’s name in accordance with Order 12 above and do all acts and sign all such documents as may be required to give effect to that registration.
International travel
14. The Mother shall be authorised and permitted to travel internationally with X.
15. Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provisions), the Mother, Ms Kovacheva, be permitted to apply for and have issued to her an Australian passport for the child, Miss X Kneib-Hornik born in 2017, or renew such passport in the absence of consent or otherwise of the Father, Mr Kneib, AND IT IS REQUESTED THAT the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of such passport/s.
Therapeutic treatment and release of material
16. Within thirty (30) days of the date of these Orders, the Mother shall attend upon her GP to obtain a referral to a mental health practitioner of her choice for assessment, and if necessary, ongoing treatment.
17. The Mother is permitted to provide a copy of the Family Report of Ms C dated 31 October 2022 and these Orders (and Reasons for Judgment, if required for the purposes of treatment) to:
(a) any mental health professional she engages with for therapeutic intervention and treatment; and
(b) any mental health professional X is engaged with, or in the future receives therapeutic intervention and treatment from.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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