Kneib & Kovacheva
[2024] FedCFamC2F 180
•14 February 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This matter concerns the parenting arrangements for six-year-old X.
X has been the subject of conflict, family violence, child protection reports and legal proceedings between her parents for most of her life. Recently, she has been diagnosed with oppositional defiance disorder (“ODD”) and attention deficit hyperactivity disorder (“ADHD”). At the time of the final hearing, she was undergoing testing to determine whether she also had autism spectrum disorder (“ASD”). The Court Child Expert, Ms C (“the family report writer”), observed that whatever the professional diagnosis or label, X exhibits anxious and dysregulated behaviour arising from either biological or environmental causes. That is, by the tender age of five, X was already psychologically damaged and traumatised by her life experience.
Reflecting the level of conflict between the parties, the applicant mother, Ms Kovacheva (“the mother”) and the first respondent father, Mr Kneib (“the father”) each sought an order to exercise sole parental responsibility for X and for X to live with them.
The second respondent paternal grandmother, Ms Kneib (“the paternal grandmother”), has intervened in these proceedings. She sought orders that X spend time with her one day in every six-week period, as well as on other special occasions.
The Court has been assisted by an Independent Children’s Lawyer (“ICL”). The ICL observed that, while the father loves X deeply and wants to be part of her life, there are a range of risks of harm that have been identified for X in the father’s care and/or presence. The mother and ICL argued that X is at an unacceptable risk of harm because the father:
(a)has engaged in family violence, which X has been exposed to;
(b)has a propensity to behave in a violent and antisocial manner, and has an inability to regulate his behaviour;
(c)completely lacks insight into the impact of his behaviour; and
(d)engages with the mother and X in a manner which negatively impacts upon the mother’s mental health and her parenting capacity.
The father, on the other hand, argued that the mother has consistently interfered with his ability to have a meaningful relationship with X and the only way that both parties can each play a meaningful role in X’s life is if orders are made placing X in his care.
The mother opposed any orders that provide for X to spend time with her paternal grandmother. She was concerned that the paternal grandmother will disclose her whereabouts to the father, and that this will have a negative impact on X’s psychological wellbeing.
This judgment sets out the reasons why I have concluded that X is at risk of unacceptable harm in the care of the father, and why these risks cannot be mitigated or ameliorated against. For these reasons, X’s interests are best served by the orders proposed by the ICL, namely, that the mother have sole parental responsibility for X, that X live with her, and spend no time with the father. I will also explain why orders will be made for X to spend some time with the paternal grandmother each year, and how some of the risks and concerns raised by the mother about this will be mitigated against.
SHORT HISTORY OF PARTIES AND PROCEEDINGS
The paternal grandmother was born in 1960. She was 63 years old at the time of the final hearing.
The father was born in 1982, and was 40 years old at the time of the final hearing.
The mother was born in 1991. She was 31 years old at the time of the final hearing.
In 2017, the parties commenced cohabitation together at C Street, Suburb D (“the Suburb D property”). At the time, the mother was seven weeks pregnant with X.
X was born in 2017. She was five years old at the time of the final hearing.
The mother has two other children from previous relationships:
(a)F born 2010; and
(b)E born 2021.
The parties separated on a final basis on 17 November 2018.
After their separation, the mother began a relationship with Mr G.
The proceedings were first initiated by the father on 12 June 2019 (“the first set of proceedings”), who filed an Initiating Application for parenting orders.
On 22 August 2019, a Family Report was ordered. The Family Report was completed on 15 January 2020 by the family report writer and released to the parties on 3 February 2020 (“the First Family Report”).
On 15 January 2020, the father filed his first Contravention Application. He filed a further five such applications on 29 January 2020, 31 January 2020, 5 June 2020, 22 June 2020, and 28 July 2020. The father deposed that these were all later withdrawn at the final hearing set down to determine the first set of proceedings.
A three-day final hearing commenced on 28 April 2021. On the first day of the final hearing, final parenting orders were made by consent (“the April 2021 Orders”). I note that both the mother and father were legally represented and had the benefit of counsel at this final hearing. The April 2021 Orders ordered that:
(1)The mother have sole parental responsibility of X.
(2)The father to spend time with X overnight and during holidays and special occasions.
(3)The parties to communicate only about X and through a parenting application.
(4)Restraints on both parties in relation to the use of social media and consumption of alcohol and/or illicit substances.
However, on 11 June 2021 (within two months of the April 2021 Orders), the mother reopened the proceedings by filing an Initiating Application. She sought to suspend, inter alia, the father’s spend time arrangements with X contained in the April 2021 Orders due to the father’s alleged behaviour during a changeover incident.
On 24 June 2021, the matter was allocated to the Evatt List in accordance with the Federal Circuit and Family Court of Australia, Practice Direction No. 3 of 2020.
On 25 July 2021, the father filed a Response seeking that he be granted sole parental responsibility and for X to live with him. In his Notice of Child Abuse, Family Violence or Risk, the father claimed that the mother was “living with and engaged to a man that had his children removed for sexual abuse”.
On 29 July 2021, the father filed an Application in a Case seeking an urgent recovery order for X. An interim hearing was listed to determine this Application on 24 August 2021.
On 14 August 2021, the father filed a Notice of Child Abuse, Family Violence or Risk alleging family violence by the maternal grandparents and that Mr G had sexually abused X.
On 24 August 2021, interim orders were made by Senior Judicial Registrar Murdoch (as her Honour was then known) (“the August 2021 Orders”), which included that:
(1)The spend time arrangements between the father and X contained in the April 2021 Orders be suspended.
(2)The mother have sole parental responsibility for X.
(3)The father spend supervised time with X at the H Contact Service for 3 hours once per week.
(4)The father complete a “Managing Anger” course.
(5)The father be restrained from posting on social media any information about these proceedings or X, and from filming or recording X.
The August 2021 Orders remained in place until the final hearing.
On 8 March 2022, an updated family report was ordered, with the family report interviews to occur after mid-2022 as the father’s criminal proceedings had been adjourned to this date. This family report was completed by the family report writer on 31 October 2022, and released to the parties on 9 November 2022 (“the Updated Family Report”).
On 17 February 2023, the paternal grandmother filed an Application in a Proceeding to be joined as a party. She was subsequently joined as the second respondent to these proceedings on 29 March 2023. It should be noted that the paternal grandmother was previously involved in this matter and has filed affidavits in support of the father, as well as being interviewed for both family reports.
The matter was set down before me for a two-day final hearing commencing 19 September 2023. On the first day, the parties agreed that a third day of hearing would be required, and this was accommodated by the Court.
EVIDENCE
Each of the parties provided Case Outline documents setting out the material relied upon.
The mother relied upon:
·Amended Initiating Application filed 19 January 2023
·Affidavit of Ms Kovacheva filed 1 September 2023
·The Updated Family Report
The father relied upon:
·Amended Response filed 8 November 2022
·Affidavit of Mr Kneib filed 13 September 2023
The paternal grandmother relied upon:
·Affidavit of Ms Kneib filed 17 February 2023
·Affidavit of Ms Kneib filed 29 August 2023
·The Updated Family Report
The ICL relied upon:
·The First Family Report
·The Updated Family Report
I have also had regard to the material marked and tendered as exhibits, as well as the annexures attached to the parties’ affidavits.
The mother and father were legally represented.
The parties were each cross-examined.
RELEVANT FACTS
Before considering the proposals and the law, it is useful to capture the relevant facts.
Since 2003, the father deposed that he has suffered from depression after the death of his father.
In late 2017, the mother claimed that the father pushed the maternal grandmother into a skip bin during an argument (“the skip bin incident”). The father then allegedly said to the maternal grandmother: “You’ll be looking down the end of the barrel of my [gun].” The father made no reference to this incident in his affidavit. He did however, reference an incident in late 2017, where he alleged the maternal grandfather headbutted him while he was holding X. The maternal grandfather was not on affidavit.
In early 2018, the mother claimed that the father had been drinking and had thrown a kettle at her (“the kettle incident”). The mother alleged that the kettle hit the floor and a piece of it hit X while she was sitting in her bouncer. The father made no reference to this incident in his affidavit, and he said during cross-examination that he has never thrown objects at the mother.
In early 2018, the mother claimed that the parents returned home after the father had spent the day drinking. The mother alleged that the father strangled her with two hands while she was holding X (“the first strangling incident”). She alleged that the father only stopped when F punched him in the back. The father denied that this incident occurred.
The same day, the father was convicted of assault against the mother. The charge was dismissed after hearing. He was placed on a Community Corrections Order for two years. He appealed the decision unsuccessfully and in late 2019 the District Court confirmed the sentence.
In mid-2018, the mother alleged that the father returned home and sat on top of her and strangled her (“the second strangling incident”). Again, the father stopped when F came into the room and punched him in the back. The mother later noticed bruising on her neck. Again, the father denied that this incident occurred, further adding in his affidavit that he has never been “incarcerated nor found guilty of an assault by strangulation”.
The father was charged with common assault for this incident. He was sentenced and fined. He appealed the decision unsuccessfully and in late 2019 the District Court confirmed the sentence.
On 17 November 2018, the parties separated on a final basis following an incident of family violence. The parties have different accounts of what happened:
(a)The mother claimed she received a call from the maternal grandmother to return home as the father was “going crazy”. When the mother arrived, the father appeared intoxicated, and Police were present. On the Police’s advice, the mother left with X and F. The mother claimed the father filmed this incident and later sent the recording to members of her family.
(b)The father claimed he returned home to find that the mother had left the children in the maternal grandmother’s care. When he asked her to leave, the maternal grandmother called Police and falsely claimed a violent altercation had taken place.
In late 2018, the mother returned to the Suburb D property. She alleged that the father ran to her car and took X. He refused to return her and grabbed her left arm and twisted it behind her back on two occasions. The father claimed that after he asked to spend the day with X, the mother began to hit him repeatedly in the face and kicked him in the groin while he was holding X. She also allegedly taunted him, saying: “hit me you coward”.
Police arrived and arrested the mother. She was charged with assault and an interim apprehended domestic violence order (“ADVO”) was issued protecting the father. Both the charge and ADVO were later dismissed in mid-2019. The mother then reported historic incidents of family violence perpetrated by the father. The father was then arrested, charged and an interim ADVO was issued protecting the mother. X was left in the paternal grandmother’s care. The mother claimed the paternal grandmother did not respond to her attempts to have X returned to her care.
The following day, X was returned to the mother’s care at a Police Station.
In late 2018, the father deposed that the mother did not allow him and the paternal family to see X for her first birthday.
In late 2018, the father reported to Police that the maternal grandfather was harassing him. An interim ADVO was issued protecting him against the maternal grandfather.
In early 2019, a final ADVO was made protecting the father from the maternal grandfather which expired in early 2021.
On 6 February 2019, Mr J, the father’s psychologist, determined that the father no longer required sessions to treat his “anxiety, depression, and high levels of distress associated with separation” from the mother and X. The father had his first session in November 2018.
In mid-2019, the mother deposed that the father refused to return X and withheld her overnight. X was unwell at the time and missed three doses of antibiotics. The father could not recall if he withheld X on this occasion. Two days later, the mother told the father that she would not facilitate time until Court orders were in place. Consequently, the father did not see X for approximately three months in 2019.
In mid-2019, the father was convicted of charges against the mother relating to the historic incidents of family violence reported by the mother in late 2018. A final ADVO was issued protecting the mother from the father for a period of two years (“the 2019 ADVO”).
The mother facilitated 15 FaceTime calls between X and the father between mid-2019 to early 2020. She claimed she had to terminate these calls on at least four occasions because the father said inappropriate things to X about her. The father deposed that the mother has not facilitated “a single phone call or facetime [sic] call” between himself and X.
In late 2019, the father returned X to the mother’s care with cuts on her face. The father allegedly told her that “[X] cut her face using my razor”. In cross-examination, the father deposed that X had scratched her face with a razor while pretending to “emulate” him, but that the cuts to her face were minor and she was not left with any scarring.
On 25 December 2019, the mother informed the father that she was stuck in traffic and requested that changeover occur later. The parties then exchanged messages, with the father accusing the mother of “placing the girls in an abusive home”.
On 26 December 2019, the father failed to return X to the mother. The following day, the mother requested police assistance and attempted to file an urgent recovery order. On 29 December 2019, the father returned X to the mother’s care.
In late 2019, the father breached the 2019 ADVO. It is unclear on the evidence what the nature of this breach was.
In January 2020, the mother did not facilitate the father’s time with X, as she was concerned that the father would again withhold X.
In early 2020, X’s daycare informed the mother that the paternal grandmother may have exposed X to COVID-19. The mother contacted both the father and paternal grandmother about this, but she did not receive a response from either of them.
From three months in mid-2020, the father did not spend time with X as the mother did not facilitate this time.
In April 2021, the paternal grandmother commissioned a report from K Ltd (“the K Ltd Report”) to follow and surveil the mother, revealing the mother’s home address. On 28 April 2021, the mother was provided a copy of this Report at the final hearing for the first set of proceedings.
On 24 April 2021, the mother deposed that she saw the father drive past her home, causing her to have a panic attack. The father made no reference to this allegation in his affidavit, and this was not put to him in cross-examination.
From 28 April 2021 to 2 May 2021, the father had X in his care in accordance with the April 2021 Orders. On 29 April 2021, the father claimed X disclosed to him that Mr G sexually abused her. He recorded this disclosure.
On 2 May 2021, the father returned X to the mother’s care. He claimed that X was reluctant to return to the mother’s care, and that the mother forced herself into his personal space and refused to allow him to comfort X. On their way home, the mother claimed X said: “[Mr G] don’t touch my moo moo (vagina)” and “Daddy told me to say it”. The father reported X’s disclosure to the Police. He said he did so because the mother had not responded to his messages.
In mid-2021, the father was contacted by Police as the mother had reported he was stalking her and had seen him outside her home. He denied this.
In mid-2021, NSW Police advised the Department of Communities and Justice (“DCJ”) and the Joint Child Protection Response Program (“JCPRP”) that they would not proceed with a formal investigation against Mr G in relation to X’s disclosure.
In mid-2021, both parties were contacted by JCPRP caseworker, Ms L. Ms L informed the mother that DCJ would not be pursuing a further investigation into X’s disclosure. The mother then suggested that X be interviewed. After the father was contacted, Ms L received three videos he had recorded of X, text messages between himself and the mother, and surveillance pictures of the mother.
Later that same day, the mother messaged the father and claimed she had dashcam footage of X saying, “daddy told me to say it”. She also denied that Mr G had ever been alone with X, bathed or changed her.
On 18 May 2021, DCJ determined that an Alternative Assessment (“DCJ Alternative Assessment”) was required because the father continued to make statements that X had been sexually abused by Mr G.
On 19 May 2021, Ms L interviewed X. The mother told Ms L she was concerned that the father was psychologically abusing X by coaching her to say “horrible things” and recording her.
On 21 May 2021, the father claimed that he was 40 minutes late to changeover because X was very upset and distressed. He claimed X had a breakdown and refused to be placed in the car. He messaged the mother and accused her of treating X like a possession and lying. The mother did not respond.
In mid-2021, X was in the father’s care, and they travelled to Adelaide for an event (“the Adelaide incident”). On the final day of the trip, the father claimed he was assaulted by an intoxicated Mr M. The father deposed that X was asleep and in the care of good friend during this incident.
In mid-2021, an incident occurred during changeover at the McDonald’s located in Suburb N (“the Suburb N McDonald’s incident”). The parties provide conflicting versions of this incident:
(a)The mother claimed that the father refused to let X go and began filming. When the mother attempted to remove X from the father’s car, the father grabbed her neck or her jumper and pulled her to the ground, causing the mother to lose consciousness. When she came to, she was lying on the bitumen of the carpark, and the father and X were gone. After this incident, the mother experienced blurry vision, dizziness, nausea, and a tingling sensation in her legs, neck, and shoulder.
(b)The father claimed that X was very upset and distressed and refused to be returned to the mother. Despite her distress, the mother removed X from the father’s car, tearing X’s shirt and jumper. While he was holding X, the mother tried to grab her from him and punched him in the kidney area. X ran from the mother a number of times and, at one point, attempted to run onto the road. She also dropped X and as a result hit her head. When the father returned X to his car, the mother charged at him and attempted to remove X. He then grabbed her shirt from behind and when he let her go, the mother allowed herself to fall. He denied that the mother hit her head or became unconscious.
The father left McDonald’s and messaged the mother that he would return X the next day. The mother reported this incident to the Police, and the father was later arrested and remanded overnight. He was charged with assault and breaching the 2019 ADVO protecting the mother.
X was left in the paternal grandmother’s care overnight and returned to the mother’s care on 5 June 2021.
On 7 June 2021, the mother attended her GP to assess her injuries and a medical certificate was issued that observed bruises on her left leg, shoulder, and neck. The father was informed by X’s daycare centre that she was withdrawn by the mother.
On the same day, the father sent Ms L three more video recordings, including a recording of the Suburb N McDonald’s incident.
In mid-2021, the father pled not guilty to the charges relating to the Suburb N McDonald’s incident. The 2019 ADVO, which was issued in mid-2019, was amended to remain in force until revoked or further order was made.
On 21 June 2021, Ms L called the father and informed him that DCJ held no concerns about X remaining in the mother’s care.
On 6 September 2021, the mother took X to see Mr O, a psychologist at P Psychology, to address her concerns about X’s inability to control her aggression towards herself, the mother, and F. The mother claimed X was biting, kicking, punching, and swearing at them.
In December 2021, the paternal grandmother dropped off Christmas presents for X at the mother’s home.
In accordance with the August 2021 Orders, the father had his first supervised visit with H Contact Service on 13 January 2022.
The father had supervised visits from January 2022 to November 2022. Many of the H Contact Service Reports noted concerning comments made by both the parties. The father claimed he only had 14 out of 40 visits with X as the mother cancelled, claiming X was unwell and cancelled makeup visits.
On 24 February 2022, H Contact Service made a mandatory report due to unexplained bruising on X. The mother claimed that X experienced meltdowns where she bruised herself and had episodes of anger and frustration. The father deposed that he was worried that the mother was physically disciplining X, as he had seen her doing this to F.
In early 2022, the mother took X to Ms Q (“Ms Q”), a psychologist who provides trauma informed care.
In April 2022, the paternal grandmother and B, X’s paternal cousin, saw X for a brief visit at the mother’s home.
In late 2022, the paternal grandmother claimed the mother did not allow her to bring X’s birthday presents nor a short visit.
On 18 November 2022, the mother did not bring X to H Contact Service for her supervised visit following the release of the Updated Family Report. She later wrote to the ICL that she would no longer facilitate time between X and the father.
On 23 November 2022, X’s paediatrician, Dr R, prescribed her medication to help regulate her behavioural difficulties and aggression.
On 24 December 2022, the paternal grandmother and the paternal uncle entered the backyard of the mother’s previous home to deliver X presents. The paternal grandmother then discovered that the mother had moved.
On 12 January 2023, the father received a letter from H Contact Service informing him that the mother refused to facilitate supervised visits.
In early 2023, the father was convicted of the charges relating to the Suburb N McDonald’s incident. The father was given a custodial sentence, which he appealed. The 2019 ADVO protecting the mother was extended to five years and expires in 2028.
On 5 June 2023, X was diagnosed with ADHD and ODD, and prescribed medication for behaviour management and sleep.
In mid-2023, the father successfully appealed his custodial sentence and was given an intensive correction order (“ICO”).
On 5 July 2023, the mother received a message from Mr S. Mr S told the mother that the father had been grooming a young woman, Ms T since she was 14 years old. Mr S was not on affidavit. In cross-examination, the father claimed that Ms T had been living with him for almost 12 months.
As at the final hearing:
(a)The mother is living with X, F, and E. She claims she has a positive co-parenting relationship with Mr G and has otherwise not re-partnered since their separation.
(b)Due to concerns about her safety, the mother was not comfortable disclosing her current residential address or current employer. The mother is working part-time as an educator and studying online.
(c)The father lives in a three-bedroom rental property. Ms T lives with him. The father has not re-partnered.
(d)The father is employed full-time in a trade and earns $1,500. He pays approximately $266 a week in child support for X and claims to be paying off the child support arrears accrued.
(e)The paternal grandmother is a health professional with 45 years’ experience and is of good health.
PROPOSALS
I will now consider the parties’ proposals.
The mother’s proposal is as follows:
(a)The mother have sole parental responsibility for X and X live with her.
(b)X spend not time with the father.
(c)The mother be permitted to travel internationally with X and apply for her passport without the father’s consent.
(d)X’s name be changed to “X Hornik”.
(e)The parties be restrained from denigrating each other or their relatives in the presence or hearing of X.
(f)The father be restrained and injuncted from:
(i)approaching or entering any premises where X may reside and attend school; and
(ii)communicating with any staff at any school X may attend.
The father’s proposal is as follows:
(a)The father have sole parental responsibility of X, and X live with him.
(b)X spend time with the mother:
(i)On a bi-weekly schedule (until X starts school):
(A)Week 1: from after daycare Friday until before daycare Monday.
(B)Week 2: from after daycare Thursday until 6.00 pm Friday.
(ii)When X commences school: from after school (or 6.00 pm) Thursday to before school Monday.
(c)If the Court were to order that X live with the mother, then the above spend time arrangement apply to the father.
(d)X’s name remains unchanged.
(e)Changeover to occur at daycare/school or Suburb N McDonald’s on non-school days, and to be facilitated by the paternal grandmother.
(f)The parties to communicate about issues concerning X only though the parenting application, “Divvito” (“the Divvito App”).
In closing submissions, counsel for the father submitted that, if the Court found that the father posed an unacceptable risk to X, orders should be made for ongoing and indefinite supervision to ameliorate such risks. The father claimed he would be able to pay the costs for this type of supervision.
The paternal grandmother’s proposal is as follows:
(a)X spend time with her:
(i)Every six weeks on Saturday from 8.00 am to 11.00 am.
(ii)On the Saturday immediately following X’s birthday from 8.00 am to 4.00 pm.
(iii)On Christmas Eve, from 8.00 am to 11.00 am.
(iv)At all such other times as agreed between the paternal grandmother and the mother.
(v)For makeup time to occur the first Saturday following a cancelled visit.
(b)Changeover to occur at Suburb N McDonald’s.
(c)X to have FaceTime communication with the paternal grandmother each alternate Wednesday from 5.00 pm to 5.45 pm.
(d)The paternal grandmother be permitted to attend events at X’s school that grandparents are ordinarily invited.
(e)The paternal grandmother and the mother to communicate via text message.
(f)The mother to consider whether X can attend special occasions and birthdays of her paternal cousins.
At the commencement of the final hearing, the ICL prepared and included in their Case Outline document proposed final orders. After the evidence closed, counsel for the ICL refined their position orally on some issues in closing submissions:
(a)The mother have sole parental responsibility for X, and X live with her.
(b)X spend no time with the father, but he be permitted to send cards and letters to X on special occasions for her birthday and Christmas only.
(c)The mother attend therapy with a registered psychologist and continue until no longer recommended by the psychologist.
(d)The paternal grandmother spend time with X every six weeks, for no more than six hours, and that:
(i)the location be nominated by the mother;
(ii)the paternal grandmother be restrained from including other members of the paternal family in visits, except for B;
(iii)the paternal grandmother be restrained from knowingly or intentionally showing or sharing photographs of X and the locations of visits to any third party;
(iv)both the paternal grandmother and the mother be restrained from denigrating each other in X’s presence or within her hearing.
(e)The paternal grandmother and the mother communicate through the Divvito App.
(f)The parties be restrained from denigrating the other or members of their respective families in the presence of or hearing of X.
(g)The parties share the ICL’s costs.
While the ICL supported orders facilitating a name change and international travel for X, the nature and form of such orders were left to the Court to ultimately decide.
CREDIT
This is a high conflict matter where the parties have given a very different account of events. The parties are in disagreement on some details relevant to their relationship.
Generally, the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings.
In this case, there are some events where the parties have given different or contradictory evidence. For example, the mother had difficulty recalling specific details of events and dates. When asked about the mother’s inability to do so, the family report writer opined that people involved in traumatic incidents very often have very poor memories of events.
The father, on the other hand, gave confident and forthright evidence, but it generally contradicted the mother’s account. His evidence was also, at times, misleading or false. For example, he had entered guilty pleas for some of his criminal charges but insisted on them being referred to as “alleged” assaults because he did not agree with the facts he was charged with. He deposed that he had no other criminal offences aside from those arising in 2021, which was also a false statement.
The paternal grandmother also gave forthright evidence and she appeared to be an honest witness. Unsurprisingly, however, her evidence aligned with the father’s evidence and his views.
I formed the view that the mother, the father, and the paternal grandmother each had different levels of insight into their behaviour and perspective on the parental conflict. Certainly, the parties did not intentionally set out to mislead the Court, but rather attempted to convince the Court that their version of events of the parental conflict was the truth. Where there was a different account of an event, it will be determined on the basis of the versions given by the parties, rather than by making blanket findings as to credit.
APPLICABLE LEGAL PRINCIPLES
The principles governing the Court’s determination on competing parenting applications are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to s 60CA of the Act, the Court must consider what is in the best interests of a child when making a parenting order. In deciding whether to make a particular parenting order, I must consider the matters set out in s 60CC(2) of the Act, being the primary considerations, and s 60CC(3), being the additional considerations.
There are two primary considerations. The Court must balance the benefit to the children of having a meaningful relationship with each parent (s 60CC(2)(a)), with the primary consideration of protecting them from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. The need to protect the child from harm takes precedence over the benefit of both parents having a meaningful involvement in the child’s life to the maximum extent consistent with their best interests (s 60CC(2)(b)).
There are 13 additional circumstances which are set out in s 60CC(3). In arriving at my decision, I have not made specific reference to all of the various factors set out in this provision, however, those of the s 60CC matters which are relevant have been considered in determining X’s best interests.
My task is to assess whether the evidence establishes that there is a risk to X. If the evidence establishes such a risk, then I must:
(a)assess whether that risk is an acceptable risk or unacceptable risk;
(b)if it is assessed as an unacceptable risk, assess whether or not that risk is capable of being managed or ameliorated by appropriate orders (see Blinko & Blinko [2015] FamCAFC 146 at [83]); and
(c)decide what orders are proper in all the circumstances in X’s best interests.
In Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Full Court discussed the assessment that the Court must make when considering whether or not there is an unacceptable risk. It was held that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. A risk assessment is a predictive exercise, and risks of harm must be seriously considered even if they are improbable eventualities (Isles & Nelissen at [105]).
The challenge in this case is whether a meaningful relationship can be achieved in a manner that is in X’s best interests and without risk. In Napier & Hepburn (2006) FLC 93-303, the Full Court emphasised that it is not for the Court to find a solution which eradicates the chances of serious harm. Rather, the Court must balance the harm that will follow if the risk is not minimised or removed as against a normal, healthy parent-child relationship not being permitted to flourish.
X
Before applying the law, information as to X must be captured.
X is currently six years old and has recently started attending school. She leads an active life and attends sports lessons. During the weekend, X has access to an animal on the maternal grandmother’s property. The mother deposed that X also uses this animal for therapy.
X lives with the mother and her two half-sisters, F, who is 13 years old, and E, who is two years old. The mother reported that X is “like a little mum” with E and is protective of and dotes on her. X’s relationship towards F was described as “not entirely straightforward” by the mother. Although X seeks comfort from F and the mother, she has reportedly exhibited her worst behaviour towards them.
X and her sisters have a close and loving relationship with Mr G, who regularly visits the mother’s home to spend time with the children. The mother deposed that X “idolises” Mr G. In the interviews for the Updated Family Report, Mr G expressed concern that X seemed like a “different child” after spending time with the father.
The mother reported that X loves sports, enjoys playing with dolls, and going to the pool. The father described X as a happy, friendly and cuddly girl, who loves water sports and activities. She is clearly a very loved and cherished little girl by both her immediate and extended family, who no doubt all want what is best for her. The paternal grandmother’s application to be joined to these proceedings is evidence of this.
However, X has experienced an extraordinary level of parental and inter-familial conflict most of her short life. Unfortunately, she has witnessed or been exposed to many of these incidents. Such prolonged and ongoing conflict has undoubtedly and negatively impacted upon her lived experience. This was substantiated by the family report writer’s observations of X:
[X’s] demeanour on the day of observations was of concern. While she appeared to enjoy playing with each of her parents and was happy to see them, she seemed generally wary and was not relaxed and well-settled. … [X’s] developmental trajectory has likely been disrupted by this and she is therefore at risk of difficulties in regulating emotions and in coping with relationships. It is also likely that [X] has experienced a level of chronic stress and this may create expectations about the course of future conflict experiences, rendering her more distressed and threatened when faced with new instances of conflict.
(Updated Family Report, paragraph 74)
Indeed, at the time of the interviews for the Updated Family Report, the mother reported that X had difficulty with friendships and could become physical with other children. The DCJ Alternative Assessment also noted concerns for X’s behaviour and emotional wellbeing, as she was “likely impacted by being exposed to ongoing conflict between her parents”.
On 5 June 2023, a medical certificate confirmed that X had been diagnosed with ADHD and ODD for which she was prescribed oral medication. The mother deposed during cross‑examination that X had not yet taken the medication prescribed. Although she was seeking to have X formally assessed for autism and post-traumatic stress disorder (“PTSD”), she said that X’s symptoms of PTSD have “reduced” to anxiety.
X’s parents
The mother has been X’s primary carer since her birth. X’s positive attachment to the mother was evident during a DCJ home visit in mid-2021, where Ms L observed that X was “seeking physical comfort from her, playing happily on her own and asking her mother for help with food and craft”.
The mother told the family report writer that she understood the importance of facilitating a relationship between X and the father. However, she believed that X had formed an “unhealthy attachment” to the father, who has:
successfully elevated himself by bribing her with toys and where the father is using [X] to push his own agenda, which I believe is to destroy me as a mother, my credibility and take over the primary care of [X].
The mother acknowledged that the proceedings and past engagements with the father has caused her stress, anxiety, and weekly panic attacks. At the time of the hearing, she deposed that she intended to engage in some form of therapy but had not yet engaged due to balancing her work and care responsibilities. This is concerning as she deposed that her anxiety can “cripple” her, sometimes for days, and is “literally suffocating”. While she said that Mr G and the maternal grandmother provide her with care relief when required, her untreated mental health, as it was at the time of the final hearing, clearly impacted on her capacity to care for her three children.
The father claimed that X displayed no behavioural issues while in his care. Nevertheless, he was concerned about the impact of the proceedings on her, as well as her prolonged and repeated separation from him. When X voiced her alleged discomfort of Mr G, he took this seriously and acted protectively by informing the mother, and then reporting these concerns to Police and DCJ.
He has demonstrated a consistent desire and commitment to remain involved and a part of X’s life. Before the first set of proceedings commenced, he deposed that he was happy and able to care for X when the mother required care relief subject to his work schedule. The H Contact Service reports showed that X and the father had positive engagements and a close relationship.
The father was open and honest about his past struggles with depression and had sought treatment for it. He remained firm that he was not currently on any medication (though acknowledged in cross-examination that he had in the past) and denied any current issues or concerns.
The father believed that the mother was “a vexatious litigant” and she was “conducting a war of attrition” by denying any of form of relationship between himself and X. His apparent frustration at and criticism of the mother’s behaviour can be seen as reasonable, given the number of occasions that she has unilaterally stopped facilitating his time and/or communication with X:
·From 27 May 2019 to 22 August 2019
·From 1 January 2020 to 8 February 2020
·From 4 June 2021 to 13 January 2022
·From 23 November 2022 to time of the final hearing.
Undeniably, this would have been confusing and distressing for X. The family report writer described this separation from the father as a “loss” to X, which has meant that X has been denied security, consistency, and safety from a key parental figure in her life. By the time of the final hearing, X had not seen or spent time with the father for almost a year.
It was also clear that the mother would not facilitate supervised time between X and the father as per the August 2021 Orders. This was further confirmed by the letter from H Contact Service to the father sent in January 2023, where they noted that a place could not be held for the parents as the mother would no longer make X available.
While the father argued that the mother has a history of undermining his relationship with X, including contravening Court orders, the mother said that she has only done so to protect X. The DCJ Alternate Assessment concluded that the mother:
acted protectively of [X] by withholding contact between [X] and her father following the incident [in mid] 2021, and after hearing [X] was witness to her father assaulting a man while intoxicated. It is noted that JCPRP does not have access to this information from a third party, only [Ms Kovacheva]. [Ms Kovacheva] has taken similar protective steps in the past and more recently when she contacted the Police after experiencing threats and violence perpetrated by [Mr Kneib]. [Ms Kovacheva] has extended the AVO and requested [Mr Kneib] not have any contact with her, which ensures her safety and also ensures [X] will not be exposed to incidents of violence perpetrated by [Mr Kneib] at handover.
In interviews for the First Family Report, the father told the family report writer that while the mother “keeps the children well fed and in clean clothes”, she “doesn’t look after them emotionally”. The DCJ Alternate Assessment observed that the father had an ability to meet X’s basic care needs such as food, clothing, and housing. However, concerns were also raised about the father’s ability to respond and meet X’s psychological and emotional needs when she is upset and crying.
The family report writer noted that the relationship between the parents was of “real concern, and is marked by mistrust and acrimony”. She believed that the primary difficulty was that she could not see the relationship improving and that there appeared to be “no functional communication” between the parents. Indeed, by the final hearing, she observed that “in the course of my interviews and interventions, it has only become worse”. Furthermore, the family report writer observed that neither parent appeared to take responsibility for their own actions.
It is therefore likely that their poor coparenting relationship would continue.
X’s relationship with her paternal family
Prior to the parents’ separation, the paternal grandmother said she had “a warm, close and affectionate relationship” with X and was involved in her care when she was a newborn. In 2018, while the parents went on a cruise together, the paternal grandmother was responsible for X for 10 days. She was also nominated as a supervisor during the father’s visits in both the current and the first set of proceedings.
Although the paternal grandmother has not spent regular time with X since the mother commenced proceedings in June 2021, like the father, she has demonstrated a consistent desire to be involved in X’s life. On several occasions, she has attempted to drop off presents to X for Easter, Christmas, and her birthday. She has also attempted to organise a time with the mother to spend with X but has claimed that the mother would not facilitate time.
The paternal grandmother appears to have facilitated and organised visits with other members of the paternal family, including B, who is reported to be very close with X. X and B appear to be close in age and have spent significant time together. On the evidence, it appears that X has not seen or spent time with B since at least Easter 2022.
Although not considered explicitly by the family report writer, X’s separation from the paternal grandmother and extended paternal family can be described as another loss in her life.
The relationship between the mother and the paternal grandmother appeared to have once been positive. The mother reported to the family report writer that the paternal grandmother is “a good Grandma who dotes on the kid and loves them”. However, the mother held concerns that the paternal grandmother would feed information to the father about X, potentially endangering her and X. This view did not change at the final hearing.
Perhaps unsurprisingly, the paternal grandmother shared the father’s view that the mother has deliberately prevented the paternal family from having a relationship with X. She also appeared critical of the mother’s relationship with Mr G, informing the family report writer that they “probably had a volatile relationship”.
DISCUSSION OF RISK
In his affidavit and Case Outline document, the father made allegations that the mother posed risks to X, including physical abuse and exposure to family violence. He also argued that the mother has a history of undermining X’s ability to have a meaningful relationship with him.
However, at the hearing, the father did not pursue the proposition that X is at any risk of harm in the care of the mother. This is consistent with the DCJ Alternate Assessment, which found it was safe for X to remain in the care of the mother in circumstances where, at that time, X was only spending supervised time with the father.
The mother argued that X is at risk of unacceptable harm if orders are made for her to spend time with or live with the father. The risks to X that have been identified can be grouped into four categories:
(1)The father has engaged in family violence, which X has been exposed to.
(2)The father has a propensity to behave in a violent and antisocial manner and has an inability to regulate his behaviour.
(3)The father lacks any insight into his behaviour.
(4)The father engages with the mother and X in a manner which negatively impacts upon the mother’s mental health, and this has the potential to impact negatively on her parenting capacity.
The father has engaged in family violence, which X (and other members of the household) have been exposed to
The mother made serious allegations about family violence that she experienced. She alleged that the father was physically and verbally abusive towards her. Some examples she provided were:
(a)The skip bin incident in late 2017. The mother alleged that this incident occurred after the father confronted her while she was breastfeeding X.
(b)The first strangling incident in 2018. The mother alleged that at the time she was holding X, who was only an infant at the time.
(c)In early 2018, the kettle incident occurred. The mother alleged that X was hit by a fragment of the kettle after the father threw it at her.
(d)In mid-2018, the second strangling incident occurred.
(e)In mid-2021, the Suburb N McDonald’s incident occurred.
The mother also alleged that the father engaged in behaviour that can be described as controlling and intimidating, both towards her and towards people close to her. Some examples she cited were that:
(a)On the following dates, the father withheld X from her as a deliberate means of exercising control over her: 18 November 2018, 25 May 2019, 1 December 2019, 26 December 2019, 28 April 2021, 29 April 2021, and 4 June 2021.
(b)The father has engaged in activities to monitor her movements. They include that:
(i)he made enquiries of an ex-employee of the family business to find out her address;
(ii)he conspired with the paternal grandmother to hire a private investigator to follow her, monitor her movements, and prepare the K Ltd Report; and
(iii)she saw the father drive past her home on 24 April 2021.
(c)The father constantly recorded her and/or his dealings with her without her consent, including at changeovers.
(d)The father harassed people close to the mother, including the maternal grandmother, her sister, and Mr G, as well as threatening Mr G’s family.
(e)The father denigrated her on his Facebook page on a number of occasions in 2019.
Of these allegations, the father’s version of events is that:
(a)He made no reference to the skip bin incident in his affidavit. Rather, he referred to an incident in 2017 where he alleged being headbutted by the maternal grandfather while he was holding X. The father’s dates for this incident appear to accord with the skip bin incident, however, both parties gave very different versions of what transpired. Under cross-examination, he agreed that the allegations arose from the same event but denied making the threats attributed to him or pushing the maternal grandmother into a skip bin.
(b)He denied throwing a kettle (or any object) at the mother under cross-examination. He also makes no reference to the kettle incident in his affidavit.
(c)He denied the first strangling incident and relied on the fact that he was only convicted for common assault. He also emphasised that the mother’s complaint was made after their relationship had ended. He told the family report writer that any bruises the mother may have had on her neck “were possibly the result of her sexual promiscuity, and denied that he was in any way responsible”.
(d)He denied the second strangling incident, again relying on the outcome of Local Court proceedings where he was convicted of common assault and not strangulation.
(e)He denied the mother’s account of the Suburb N McDonald’s incident. His evidence was that he pled not guilty because he was acting in self-defence as he was protecting X from the mother.
(f)He reported to the family report writer that the ADVO issued in 2018 was a result of the mother “making false reports”. He was also unhappy about the loss of his firearms licence.
In his affidavit at paragraphs 113 and 114, when referring to the Suburb N McDonald’s incident, the father claimed that:
Other than this pending criminal matter, I have not been convicted with any other offences.
I have never been incarcerated nor found guilty of an assault by strangulation [in late] 2018 …
Of the mother’s allegations of controlling and intimidating behaviour, these are generally denied by the father, who made the same assertions about the mother and family. These include that:
(a)The mother “stalks” him on Facebook and messaged his friends “to say how horrible I am”.
(b)The maternal grandmother attacked him in late 2017 while he was holding X, and that he then “banned” her from coming to the home.
(c)The maternal grandfather threatened to shoot him.
(d)During 2019, the mother constantly threatened to put him in prison.
(e)In mid-2021, the mother posted on Facebook about the father’s behaviour and the “system” failing. The father believed that this was the mother attempting to instigate further allegations against him.
At the hearing, evidence was before the Court about how the K Ltd Report was obtained. A certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“s 128 Certificate”) was issued in relation to this evidence. To the family report writer, the father said a private investigator was hired arising from concerns that the mother had given false information to the Court about where she was living. He later clarified in cross-examination that the paternal grandmother had obtained the K Ltd Report in consultation with him, but that he had not paid for it. He also accepted that obtaining such a Report was inappropriate and resulted in engendering mistrust in a coparenting relationship.
The mother also alleged that X and the children in her household have been directly exposed to the father’s violence, including that:
(a)X was present during the skip bin incident.
(b)X was struck by a broken fragment during the kettle incident.
(c)X was present during the Suburb N McDonald’s incident. The mother said that when X was returned to her care in mid-2021, X told her to go to the hospital because “daddy punched you. Yeah, mum, you were on McDonald’s Road”.
(d)F was present and came to the mother’s defence on both strangling incidents in 2018.
(e)X witnessed the father’s violence towards Mr M during the Adelaide incident. In mid‑2021, the evening when X was returned to her care, the mother heard X say to F: “[F], I am going to punch you so hard I will make you bleed.”
The father also conceded that X had been exposed to family violence. He conceded to at least two examples of this:
(a)He deposed at paragraph 10 of his affidavit, to a violent altercation with the maternal grandfather in late 2017:
the Maternal Grandfather and I were having a disagreement due to him telling me that I was not a good provider for my family. The Maternal Grandfather was notably inebriated and approached my face and started making violent threats. I attempted to make space between him and I, in an attempt to deescalate the situation. The Maternal Grandfather was angered by this and proceeded to headbutt me on my forehead. The assault caused heavy bleeding and a scar on my forehead still visible today…This assault occurred whilst I was holding [X] in my arms.
(b)Following their separation in November 2018, he deposed that the mother returned to the home shortly after to collect some belongings. He took X out of the car she had been left in. He alleged that the mother started slapping him and kneed him in the groin, whilst he was holding X.
(c)Under cross-examination, he agreed that X had been exposed to the parental conflict and “some things”.
However, there were other incidents where the father did not accept that children had been present. For example, he did not agree that F was present during the first strangling event nor that that she had intervened.
The tendered material provided further corroboration of the allegations about family violence and the children’s exposure to it.
Police and Corrective Services material
The father was found guilty of assault arising from the first strangling incident and sentenced to a community correction order (“CCO”) from 2019 to 2021. As he made clear during the hearing, he was not found guilty of one charge. He appealed the sentence, but the CCO was confirmed by the District Court in late 2019.
Arising from the second strangling incident, the father was charged with assault at the Local Court in early 2019 and fined. He sought an annulment, but in late 2019 it was refused by the District Court. An ADVO was put in place against the father, naming the mother as the protected person for a period of two years.
A final ADVO remains in place protecting the mother from the father and expires in early 2028.
Arising from the Suburb N McDonald’s incident, in early 2023, the father was convicted of multiple offences. He was given a custodial sentence, which he immediately appealed. In mid‑2023, the District Court maintained the conviction and required the father to enter into an ICO, which required him to:
(a)be of good behaviour and not commit any offences;
(b)complete a term of community service; and
(c)not drink alcohol.
In mid-2023, the terms and conditions of the ICO were varied by removing the requirement to undertake community service work.
Facebook posts
The mother cited several occasions when the father posted messages or comments about her and the Court proceedings on his Facebook page:
(a)In mid-2019, the father posted a YouTube clip title: “Mom [sic] denies coaching daughter into making molestations accusations”, with the following comment:
I know a pair of women that done exactly this to a three year old just to gain control and push a father out of their child’s lives.
(b)In or around mid-2019, the father posted:
Well this week is two months [X] has been hidden from her dad, no contact, no reason, no explanation, no reason, no face time nothing […].
(As per the original)
(c)In mid-2019, the father posted:
Well it’s fast approaching to 3 months [X] has been hidden from her father and court is next week […], how disgusting and embarrassing and sad for a mother to have to be court ordered to let her children spend time with their father […]
(d)In late 2019, the father posted asking his friends to attend the “Federal Circuit Court […]” in early 2020. I note that the first set of proceedings was listed before his Honour Judge Newbrun for a Directions hearing that day.
JCPRP records and investigation
The father admitted that he frequently took videos of events, changeovers, and conversations he had with X.
Eight videos in total of X and F were forwarded by the father to Ms L, who was investigating the sexual abuse allegations made by him. They were reviewed, transcribed and notes taken of their contents. In most of the videos, X and/or F are present (and often visibly upset) during altercations between adults in their lives.
During an interview with Ms L, he made various statements to her, including that:
(a)He hated having to record those situations, but X would not have seen him filming during the Suburb N McDonald’s incident as he was inside the restaurant at that point.
(b)He filmed the sexual abuse disclosure by X as evidence, justifying this by stating: “I am trying to understand your decision making. In a female bias system, what evidence is there without filming”.
(c)When he was advised by Ms L that filming X when she was upset or crying could be both psychologically and emotionally harmful, he remarked: “I find that absolutely crazy”.
For the investigation, Ms L contacted X’s daycare centre, who reported that the sexual abuse allegations had also been reported to them by the father. It was reported that the father had asked X to repeat the allegations to staff, and that the father had showed them his video recording of X’s disclosure. This was also done in X’s presence.
The Police were also involved in investigating X’s disclosure that Mr G had sexually abused her. However, the Police believed that the father was leading X, who was then three years old, to make disclosures. The matter was closed by Police.
Due to the interview conducted and the video and surveillance material provided by the father, the DCJ Alternate Assessment was conducted. Concerns about the presence of ongoing dynamics of family violence perpetrated by the father arose because:
[Mr Kneib] is continuing to display violence and control towards [Ms Kovacheva], such as threats, stalking, intimidation, and actual physical abuse. Evidence of this was in the video [Mr Kneib] provided to JCPRP Caseworker of the handover incident where he stands over [Ms Kovacheva], picks [X] up and walks away from [Ms Kovacheva], and follows [Ms Kovacheva] across the car park, while yelling out to [Ms Kovacheva]. [Mr Kneib] has also sent JCPRP Caseworker pictures of his text messages to [Ms Kovacheva], a copy of the findings from his private investigator which includes images of him, [Ms Kovacheva] and [X] at handover and [Ms Kovacheva’s] address. [Ms Kovacheva] has also advised [Mr Kneib] recently made threats to kill [Mr G] and [Mr G’s] father, has threatened her and her parents in the past, has also previously confronted [Mr G’s] ex-partner accusing her of being abusive, and also confronted [Mr G’s] father at a pub and at his workplace.
The assessment also concluded that X may be at risk of psychological harm in the care of the father for the following reasons:
·The father’s constant recording of X, particularly on occasions when X is distressed, upset, and crying.
·The continued recording of X by the father, despite being advised not to due to the psychological impact it may have on X.
·The limited insight displayed by the father into his behaviours and actions towards the mother and X.
·The father’s “coaching” of X and making statements in her presence that were not age appropriate.
·The father’s use of violence towards the mother.
Of X (and F’s) exposure to family violence, the DCJ Alternate Assessment noted that witnessing such events could:
often result in the child/young person having difficulty regulating their emotions, and they may learn that violence is an appropriate way to respond to uncomfortable emotions or problems…a child may act out, overreact, be hostile, impulsive, show aggression or defiance as a result of having been exposed to violence. This is particularly relevant for [X] and is evidenced in her comments about using her hands to manage conflict, and her use of physical violence towards her sister such as hitting, kicking, biting and punching…Ongoing exposure to such conflict, which DCJ records reflect has been raised as a worry since 2018, is also likely to have had a significant emotional impact on [X].
Therapeutic intervention, notes, and reports
To address reported behavioural and emotional issues, X has seen two psychologists, Mr O and Ms Q.
Mr O, who was treating X for “defiance, physical aggression and trauma”, made the following observations of X in their sessions together:
·In late 2021: X looked up to the father because he spoils her with gifts and thinks being physically aggressive with someone is fine because that the father does the same.
·In late 2021: X said that she loves the father because he buys her nice things. She also called him “naughty” and that she was sad when she saw the mother fall at McDonald’s.
·In early 2022: after X’s first supervised visit with the father, X was observed to be behaving erratically, and pretending to yell on the phone to the father.
·In early 2022: X was observed to be calmer and more relaxed. The mother claimed that this was because X had no contact with the father for three weeks.
·In early 2022: after a supervised visit with the father, X was observed to be more erratic and defiant compared to previous sessions. Mr O questioned whether X may be suffering from a personality or mood disorder.
·In early 2022: after a supervised visit with the father, X was observed to become very aggressive and exhibited very intense emotions when the father was mentioned.
On 22 November 2022, Ms Q completed a report concerning X’s behaviour and noted the following:
·X’s behaviours were indicative of developmental trauma, which provoked dysregulation, anxiety and separation fears.
·The mother was exhausted by unrelenting demands, crises and emotional needs relating to X. F was significantly impacted by this as well.
·A period of no contact may be helpful in re-assessing the ongoing effects on X.
In other records tendered, X has been reported to make other concerning comments that indicate she has been exposed to violence and inappropriate language and/or behaviour. For example, the H Contact Service contact reports recorded X saying to the father:
·“I will cut your head off”
·“Stop or I will put you in jail”
In relation to the Suburb N McDonald’s incident, the mother had later observed that her jumper had been torn and that she had sustained bruises all over her body. The photographs of this were annexed to her affidavit and not challenged. Nor was the medical certificate issued by Dr U in mid-2021 challenged.
Conclusions
“Family violence” is defined in s 4AB(1) of the Act as follows:
(1)… family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(Emphasis in original)
Section 4AB(2) provides examples of conduct that may constitute family violence. However, such behaviour only becomes family violence where the quality of that conduct meets the description in s 4AB(1) and causes someone to be fearful.
The mother provided evidence in her affidavit, to the family report writer, and at the hearing that the father’s conduct caused her to be fearful. I accept her evidence.
The father disagreed with the mother’s version of some incidents. For example, he pled guilty to assaulting the mother but not to strangling her. As to the Suburb N McDonald’s incident, he said that he pled guilty but was only acting in self-defence. To a certain extent, his reasons have no bearing on my finding that he has engaged in family violence. I am satisfied that he has engaged in behaviour towards her that was both violent and threatening.
The mother also alleged that the father engaged in conduct intended to coerce and control her.
In Carter & Wilson (2023) FLC 94-129, McClelland DCJ and Campton J both observed that the terms “coerce” and “control” are not defined in the Act, and concluded at [10] that:
[t]he assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
Behaviour described as coercive and controlling does not have to involve conduct that is inherently violent or threatening, However, “[g]enerally, coercive control is understood as a course of conduct aimed at dominating and controlling another person including a family member” (Ramzi & Moussa [2022] FedCFamC2F 1473 at [145]).
I make the following findings on the evidence:
(a)The father did withhold X from the mother on a number of occasions with the purpose of coercing the mother and exercising control over her.
(b)The father has engaged in activities to monitor the mother’s movements. Surveillance is part of a pattern of coercive control. That his conduct made the mother feel anxious and intimidated at times is understandable.
(c)The father denigrated the mother on his Facebook page on a number of occasions in 2019.
Section 4AB(3) of the Act provides that a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.
There is no doubt that X has been exposed to the acrimonious parental conflict and family violence between the parents, and for her entire life. On this, the family report writer observed in the Updated Family Report at paragraph 75:
their inability to maintain even a vestige of a co-parenting relationship, has meant that [X] has been subjected to conflict in which she has witnessed physical injury, verbal assaults and an inability to resolve matters in a child-focussed manner.
Having regard to this evidence, I make the following findings:
(a)The father has been a persistent perpetrator of family violence against the mother since at least 2018.
(b)X has been present and exposed to family violence.
(c)The father’s propensity to commit family violence poses a risk to X.
The father has a propensity to behave in a violent and/or antisocial manner and an inability to regulate his behaviour
The mother argued that the father’s violent and antisocial behaviour coupled with his inability to regulate his behaviour places X at risk.
The mother gave evidence that:
(a)The father has been observed to be unable to regulate his behaviour in an appropriate manner. She said that this was well observed and documented during his interactions with DCJ in 2021. She set out her concerns in detail at paragraph 98 of her affidavit.
(b)The mother was especially concerned about the father’s conduct during the weekend of the Adelaide incident. In mid-2021, the mother claimed she spoke with Mr M who informed her that the father had seriously assaulted him. Mr M also told the mother that the father was under the influence of alcohol and X was present when the assault took place. Mr M was not on affidavit.
(c)The father misuses alcohol and his angry outbursts occur when he is under the influence of alcohol. She also said that his consumption of alcohol has placed him in breach of his undertaking to not consume alcohol to excess when X is in his care, and more recently, in breach of the ICO he is subject to.
(d)The father has a history of non-compliance with Court orders, including that:
(i)He retained X in his care for five consecutive days in December 2019.
(ii)He removed X from daycare without the mother’s consent, and withheld X from the mother on 28 April 2021, 29 April 2021, and 4 June 2021.
The father denied the allegations made by the mother, and gave a different version of events:
(a)The details surrounding the Adelaide incident are disputed. The father agreed that he had consumed alcohol, but he was not inebriated when the altercation with Mr M took place. He claimed that his alcohol consumption did not place him over the legal driving limit. He said that he was attacked by Mr M, who lunged at him and was injured when he fell and hit his head. The father expressed a belief that the mother coached Mr M into attacking him or to make him appear violent.
(b)The father said that he did not have any dependency on alcohol or consumed alcohol excessively. He deposed that, due to the nature of his employment, he is subjected to onsite drug testing and has never tested positive for any illicit substances.
(c)The father said he had no other criminal offences aside from the criminal matters related to the Suburb N McDonald’s incident.
(d)He denied not complying with Court orders and argued that the mother has a history of non-compliance and belligerence herself.
The father was cross-examined about the conditions of his ICO, and on application through his counsel, a s 128 Certificate was issued in respect of the evidence he gave. He accepted that he had consumed alcohol since mid-2023, contrary to his ICO. He said that he did so because he was unaware of the conditions, and erroneously assumed that the requirement he abstain from alcohol was removed.
The father has been convicted on two separate occasions for breaching the terms of an ADVO.
Independent evidence further demonstrated the father’s propensity for violent and/or antisocial behaviour.
Police records
The father’s police records outline a lengthy criminal record and involvement with the police since he was 16 years old. His criminal history was tendered as evidence and does not require repeating. However, in contrast to the father’s evidence, it should be noted that:
(a)He was convicted in 2001 for a driving offence and charged in 2014 for refusing or failing to submit to a breath test.
(b)He has been charged with a range of offences that could be described as engaging in antisocial behaviour. For example, destroying property and using offensive language in or near a public place.
(c)He has twice been convicted of contravening an ADVO.
Other evidence about alcohol consumption
Accordingly, the family report writer recommended that the mother have sole parental responsibility. This was also supported by the ICL, who observed that such an order would be appropriate given the inability of the parents to be able to meaningfully communicate on any issue concerning X or do so in a manner that is child focused. I agree and will make an order that the mother exercise sole parental responsibility for X.
I have not made orders for the mother to consult with the father because I have no confidence that communication could or would be effective between the parents. I do not want any such condition to interfere with the mother’s ability to make major long-term decisions for X.
Furthermore, I am satisfied that ordering the mother to do so would cause her ongoing anxiety and may adversely impact upon her parenting capacity, and therefore, not be in the best interests of X. It is also not practical to require the mother to arrive at decisions jointly with the father into the future.
Which parent should X live with?
As the father poses an unacceptable risk of harm to X, I adopt and accept the recommendation of the family report writer and find that it is in X’s best interest to live with the mother.
Even if I was in error in relation to the risks the father presents to X, I accept the family report writer’s evidence that any change would represent a major disruption for X. This is especially because the mother has always been her primary caregiver and she has spent relatively little time with the father.
What time should the father spend with X?
While X has had no face-to-face time with the father for 12 months, the H Contact Service reports show positive interactions between X and the father. In the past, the father has demonstrated an ability to show X love and affection. These positive aspects will be lost to X if orders proposed by the ICL, and the mother, are made. I am, however, required to prioritise protecting X from harm and can only make orders for the father to spend time with X if and only if I am satisfied that this can be achieved safely.
The family report writer raised concerns about X’s behaviour during interviews for the Updated Family Report. These observations were consistent with the observations made of X by H Contact Service, Mr O, Ms Q, and the JCPRP. In the family report writer’s view, X’s exposure to the parental conflict has negatively affected her and places her at risk of difficulties in regulating emotions and coping with relationships and conflict in the future.
X is now getting much needed assistance and support for her behavioural issues. Her treatment plan focuses on her emotional dysregulation, and she sees both an occupational therapist and psychologist fortnightly, as well as a behavioural therapist. The mother reported that her PTSD symptoms have now been reduced to symptoms of anxiety.
The father offered that arrangements for changeover which preclude him from coming into contact with the mother would mitigate the risk of exposing X to the parental conflict. Even if this were the case, it would not preclude a range of other risks.
If I were to make orders for the father to spend time with X, I am aware that X could be adversely affected by ongoing contact with the father and face poorer long-term outcomes for her development and wellbeing. She may also lose the progress she has gained so far from her access to a number of therapies. As was observed by the family report writer at paragraph 88 of the First Family Report:
Involving a child in, or exposing them to, high levels of parental conflict, particularly where the conflict extends to or involves other family members, and where the child may be the subject of the conflict, is associated with poorer long-term outcomes for the child’s development and well-being. [X], in her experience of poorly managed conflict, may be at risk of difficulties in emotional self-regulation as well as problems in navigating adult relationships.
The father continued to maintain that X’s behavioural problems reflected her desire to spend more time with him. His inability to regulate his behaviour and accept responsibility for past behaviour, combined with his inability to support X’s treatment, raise serious concerns not only about further harm to X, but how her treatment might be undermined by the father.
The father’s counsel argued that an order for ongoing supervision should be considered. A Court generally exercises great caution when imposing indefinite supervision of time between a child and parent (see Slater v Light (2013) 48 Fam LR 573 at 583-584 and 591; Champness & Hanson (2009) FLC 93-407 at [209]-[215] and [219]-[225]; Moose & Moose (2008) FLC 93-375 at [119]).
I also must consider whether this is a matter where recognition time or identity contact for the father should be ordered. On this issue, the family report writer did not recommend it, noting that the advantages of such an order do not outweigh the disadvantages:
[X] will lose the love and concern of another parent and it is likely that there will be some grief associated with this loss. However, this will likely be eclipsed by the damage which will ensue if [X] is required to cope with navigating a parenting relationship which currently exists.
The ICL supported an order that the father be permitted to send cards, letters, or gifts to X at Christmas and on her birthday. However, the family report writer only supported such an order as long as the mother could manage her anxiety. She was of the view that the mother would need to seek and engage in therapy to manage this.
On balance, I am prepared to make an order that the father be permitted to send a letter, gift, and/or card to X on two occasions each year, on her birthday and at Christmas. Having regard for the mother’s anxiety, the communication must be sent to a postal address nominated by the mother via the Divvito App.
These Orders will give the mother the opportunity to focus on her own mental health. She conceded that while she did need to “see a psychologist”, she has historically deferred from doing so. It is now time for her to address and prioritise her mental health. An order will be made for the mother to attend upon her GP to obtain a referral to a mental health practitioner of her choice, for assessment, and if necessary, ongoing treatment. An order will also be made permitting the mother to release these Orders and reasons for judgment to that mental health practitioner for the purposes of any ongoing therapy.
INTERNATIONAL TRAVEL
The mother also sought a specific order that she be able to obtain a passport for X and travel overseas with her without requiring the father’s consent. There is no issue that the mother would not return to Australia. In these circumstances, I propose making the orders sought by the mother.
CHANGE OF NAME
The mother sought an order to change X’s name to “X Hornik”. She deposed that she would like to do so for the following reasons:
(a)X will have no connection to the father.
(b)X should share a common surname with her two sisters and the mother, who had completed an application to register a change for her surname to “Hornik”.
(c)It connects X to the mother and her sisters and will avoid any confusion of identity for X if they all share the same surname.
(d)It will avoid any potential embarrassment or sense of exclusion that X may experience having a different surname to those of her household.
The father was opposed to the proposed name change. He said that it might affect X’s sense of identity.
The Full Court decision in Chapman & Palmer (1978) FLC 90-510 (“Chapman & Palmer”) at 77,675 and 77,676 sets out the relevant factors that the Court must consider when determining whether or not there should be a change of name for the child:
(a)The welfare of the child is a paramount consideration.
(b)The short and long-term effect of any change in the child’s name.
(c)Any confusion of identity which may arise for the child if the name is or is not changed.
(d)Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has primary care.
(e)The effect which any change of surname may have on the relationship between the child and the parent whose name the child bears.
(f)The effect of random and frequent changes of the child’s name.
The mother said that X has asked her why she had a different name to her sisters on her drink bottles. The family report writer opined that in her experience, children like to have the same surname as their siblings. At the same time, she gave evidence that a double-barrelled name would recognise where they came from and acknowledge the connection to their household.
Applying the criteria in Chapman & Palmer, I find that a name change is necessary because:
(a)X’s connection is largely with her maternal family and her siblings, who use different surnames to “Kneib”.
(b)The long-term effect of the name change is that X will feel more aligned with her siblings as she will share the same name as her sisters and mother.
(c)As X grows older, leaving her surname as “Kneib” may cause her confusion.
(d)X has already noticed and questioned why her surname is different to her sisters, and this may cause her embarrassment in the future amongst her peers.
(e)Adopting a hyphenated name will not impact on X’s relationship with the father, as it continues to acknowledge her connection with the paternal family.
(f)This would be the first occasion X’s name would be changed, and there was no evidence before me that her name would change before she reaches adulthood.
I therefore find that it is in the best interests of X to be known by the hyphenated surname “Kneib-Hornik”.
SHOULD THE COURT MAKE ORDERS FOR THE PATERNAL GRANDMOTHER TO SPEND TIME WITH X?
The paternal grandmother sought an order that she be permitted to spend time with X once every six weeks. She argued that historically she enjoyed a close, warm, and loving relationship with X, which developed when X frequently spent time, including overnight time, with her throughout 2018 and 2021.
The paternal grandmother argued that X enjoyed a close relationship with other members of the extended paternal family, including her paternal cousin B, who is a similar age. In her affidavit and Case Outline document, she argued that it was in X’s best interests to continue be given consistent opportunities to deepen and maintain her relationship with the paternal family, including aunts, uncles, and cousins. At the conclusion of her cross-examination, the paternal grandmother said:
I just want to be able to possibly meet up, go to the movies, go shopping, allow [X] and [B] to have some time, and so that she still knows her paternal grandmother cares about her and loves her. That’s it.
(Transcript 21 September 2023, p.202)
The mother was also opposed to the paternal grandmother spending time with X because:
(a)She alleged that the paternal grandmother withheld X from her care on two previous occasions (on 18 November 2018 and 23 March 2020) without her consent and with little communication.
(b)She alleged that the paternal grandmother signed undertakings to supervise X’s time with the father but failed to do so on three occasions in 2019.
(c)When the father advised X’s daycare centre in early 2020 that X may have been exposed to COVID-19 while in the paternal grandmother’s care, the paternal grandmother failed to communicate with the mother and did not respond to the mother’s enquiries.
(d)The paternal grandmother attended at the mother’s home uninvited on special occasions such as X’s birthday, Easter, and Christmas.
(e)The paternal grandmother personally hired a private investigator to ascertain the mother’s address and other personal information. The mother believes that she then passed on that information to the father, who drove past the mother’s home.
(f)She alleges that the paternal grandmother causes X to be distressed as she “triggered” her anxiety when showing her photos.
There is no doubt that the paternal grandmother loves X, wants to restore her relationship with X, and enjoy a long-term relationship with her. An order for X to spend time with the paternal grandmother would offer X an opportunity for a sense of connection with her paternal family, in circumstances where a no time order will now be made between X and the father.
However, X’s need for a sense of connection must be balanced against some other considerations. The risks identified were:
(a)The paternal grandmother will continue to expose X to the parental conflict.
(b)The paternal grandmother may undermine the mother to X.
(c)X is currently engaged in a therapeutic treatment regime and spending time with the paternal grandmother may undermine her progress or be unsettling for X.
(d)The paternal grandmother may obtain details of the mother’s residential address, or the school attended by X, and disclose this information to the father.
(e)Even if the paternal grandmother were required to enter into an undertaking, or if she were restrained from doing certain things (such as providing details of the mother’s whereabouts to the father), there is a likelihood that she would not comply with them.
(f)X’s psychological healing may be delayed by being exposed to the paternal grandmother.
(g)An order allowing regular time between X and the paternal grandmother may have a negative impact on the mother’s mental health.
Analysis of risk
The paternal grandmother has worked as a health professional for over 45 years and appears to be the family matriarch who people turn to when they have a problem. When the mother and father were in a relationship, there is no doubt that she supported both parents in caring for X on a regular basis.
I have no doubt that she is a competent carer, but over the years she has formed a negative and distrustful view of the mother. At the same time, she continues to support and defend the father, notwithstanding his deficiencies. In doing so, she has displayed a lack of insight into the mother’s anxiety and X’s needs. For example:
(a)I am not surprised that the mother was alarmed to hear that the father had communicated to the daycare centre that X had been exposed to COVID-19 in early 2020. The paternal grandmother could not explain why she did not respond to the mother’s message. She relied on the reason of “privacy and confidentiality” as a health professional, and it was only after some prompting that she conceded that it was possible that the mother had lost trust in her because of her conduct.
(b)Following the Suburb N McDonald’s incident, the paternal grandmother was aware that the father had been arrested. She acknowledged that X had stayed overnight in her home but showed no apparent interest or care for the mother’s injuries or state of mind. She took no opportunity to communicate with the mother, confirm that X was in her care, nor make plans to return X to the mother.
(c)The hiring of a private investigator by the paternal grandmother was an extreme measure to take, especially in a high conflict matter where the mother has alleged concerns for her safety and an ADVO was in place between the parents for the mother’s protection. The paternal grandmother’s disregard for the mother’s safety concerns highlights a blind spot for her. She accepted that her actions in hiring a private investigator would have caused the mother some anxiety. When asked whether it was the best course of action, she responded that it was. The justification for her conduct was entirely self-serving and self-interested: “so I could see [X]”.
(d)Despite the mother’s anxiety about the father, the paternal grandmother was affronted by the notion that she could not attend the mother’s home and deliver presents for the children. Whilst I appreciate that her intentions were good, she again displayed a complete lack of insight into the impact that her attendance at the mother’s home, without notice, might have on the mother.
(e)In her affidavit, she said of the mother: “[Ms Kovacheva] seems to be trying to stop any, and all contact with [X’s] paternal family for no reason”. After sitting through three days of hearing, having heard the evidence, and having read the affidavits filed, counsel for the ICL asked the paternal grandmother whether she still believed her statement. She confirmed that she did. When asked about the father’s conviction for charges of assault against the mother, she opined that “he hasn’t harmed [X]”.
(f)When cross-examined on the father’s decision to film X during the distressing Suburb N McDonald’s incident, the paternal grandmother was again defensive of the father and of his behaviour.
When cross-examined about her ability to manage the father if he was made aware of X’s whereabouts and attended during her time with X, I was more confident about her responses. She advised the Court that she would keep details of the location secret from the father and call the Police if he attended.
The paternal grandmother also agreed to the following restraints being placed upon her time with X:
(a)To not provide photographs of X to any third party.
(b)To prevent her from disclosing the location of X to the father.
(c)To allow the mother to nominate the venue.
(d)To only communicate with the mother via a parenting application, such as the Divvito App.
(e)To immediately notify the mother if the father comes into contact with X.
(f)To bring X into contact with any paternal family members apart from her cousin, B.
There were other allegations by the mother that I am unable to make findings about. There was insufficient evidence that would allow me to make a finding that the paternal grandmother had failed to supervise X’s time with the father on three occasions in 2019.
Conclusions
In Donnell & Dovey (2010) FLC 93-428 (“Donnell & Dovey”), the Full Court considered how the Act applies to applications by non-parents. In this case, it was observed that while the Act maintains a distinction between a “parent” and “non-parent”, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of “the biological (or other) connection of the child to the parties in the proceedings” (Donnell & Dovey at [79]-[80]).
The family report writer was mainly concerned with both the mother and X’s reaction and response to such an order. She recommended that if an order was made for X to spend time with the paternal grandmother, time should commence after the mother has engaged in treatment. She was not of the view that supervision would be necessary because it would, in her view, create an artificial situation.
I need to consider whether the orders sought by the paternal grandmother would commit X to a continuation of the conflict and hostility she has had to endure for most of her life.
The paternal grandmother continued to maintain a negative view of the mother. She showed no insight into the role played by the father in the conflict, nor did she take personal responsibility for her behaviour and its impact on the mother. There is most certainly a risk that X would be exposed to her negative views of the mother.
Given the history of the matter and the evidence she gave, I am not persuaded that the paternal grandmother is likely to be able to refrain from undermining X’s relationship with her mother if she is given the opportunity to spend regular time with X. Nor am I confident that as more time passes that the paternal grandmother would relax her approach to time with X and introduce other family members and the father to her, notwithstanding any injunctions or restrains made.
If, however, I was to provide the paternal grandmother with limited occasions to spend time with X, I am more confident that the risks identified would be mitigated against.
I will therefore make an order that the paternal grandmother be afforded the opportunity to spend time with X on two occasions each year for up to six hours on each occasion, in the months of December and July each year, at a day nominated by the mother. The mother will communicate with the paternal grandmother on the Divvito App. She will nominate the venue and the time for each visit and the paternal grandmother must not leave that venue. The time spent by the paternal grandmother with X will be subject to a range of restraints, including that she sees X alone or in the company of B.
The paternal grandmother will advise the mother immediately if she becomes aware of any potential breaches of those restraints.
The time X spends with the paternal grandmother will commence in December 2024, by which time it is expected that both X’s therapy, and any therapy the mother engages in, is well underway. This timeframe will also allow the mother to engage in a therapeutic process to address the anxiety she suffers from contact with the paternal family, and to put appropriate supports in place for X. An order will also be made to release the Family Report of 31 October 2022 and these reasons for judgment to X’s treaters to support any therapeutic interventions she is engaged in.
INJUNCTIONS
Permitting the paternal grandmother to spend time with X has been a finely balanced exercise. In spending time with X, the paternal grandmother will be restrained from:
(a)Passing onto X communication or contact information, such as email addresses or mobile numbers, whether from the father or other members of the paternal family.
(b)Circulating photographs or video recordings of X to any third party.
(c)Connecting with X or knowingly allowing any member of the paternal family to connect with X via any social media accounts, such as Facebook, Instagram, TikTok, Snapchat.
(d)Disclosing to the father any information she may have about X’s residential address, the school she attends, and/or the spend time with location.
(e)Bringing X into contact with the father and any paternal family members, except for the paternal cousin, B.
(f)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.
The mother also sought a restraint on the father coming into contact with X. Given the findings that I have made, I will do so. The father will be restrained from entering at or coming within 100 metres of the place of residence of the mother and X, as well as any school or educational institution attended by X and any location where X is spending time with the paternal grandmother.
It is important that X is, from now on, shielded from the parental conflict. A restraint will also be made on the mother so 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.
CONCLUSION
X has been exposed to far too much parental conflict and family violence in her short life. For now, the Orders provide the mother with much needed space to recover from the legal proceedings and to move on with her life. The same relief and space will also be provided to X, who has been subjected and exposed to her parents’ conflict for far too long and now needs to heal.
I certify that the preceding two hundred and eighty-nine (289) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 14 February 2024
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