Kozlovich and Hobbs

[2012] FamCA 966

FAMILY COURT OF AUSTRALIA

KOZLOVICH & HOBBS [2012] FamCA 966

FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility  in section 61DA has been rebutted – where the father has been convicted of numerous offences of serious assault against the mother – best interests – where the presumption of equal shared parental responsibility has been rebutted – orders that the mother have sole parental responsibility.

FAMILY LAW – CHILDREN – final orders – with whom a child lives and spends time – where the paternal grandmother seeks to spend regular unsupervised time with the children – where the mother has experienced serious family violence at the hands of the father – where the paternal family is reluctant to accept the violence by the father towards the mother – where the Court was of the view that unsupervised time with the paternal family is likely to have a detrimental effect upon the mother’s psychological health – best interests – orders that the children live with the mother and have limited supervised time with the paternal grandmother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 62G, 64B, 64C, 65C & 69ZT

M v M (1988) 166 CLR 69

APPLICANT: Mrs Kozlovich

RESPONDENT: Ms Hobbs

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

FILE NUMBER: PAC 6130 of 2008

DATE DELIVERED: 20 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 6, 7 and 8 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Fremanis

SOLICITOR FOR THE RESPONDENT: Cominos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Leis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. All previous parenting orders are hereby discharged.

2. The mother shall have sole parental responsibility for the children, H born on …2001, T born on …2002, S born on …2003 and Z born on …2006 (“the children”).

3. The children shall live with the mother.

4. Within twenty-eight [28] days each party shall complete the application form and intake procedures with the M Contact Service.

5. The children shall spend time with the paternal grandmother as follows:

   (a)For twelve months on four [4] occasions per year for two [2] hours each supervised by M Contact Service at such times and on such dates as nominated by the organiser of that Contact Service;

   (b)Thereafter, on four [4] occasions per year for two [2] hours supervised by a person mutually agreed between the mother and the paternal grandmother provided that person executes an undertaking which appears as Annexure “A” to these Orders and in default of agreement such time to continue to be spent supervised by M Contact Service or such other supervised contact service as the mother and the paternal grandmother mutually agree.

   (c)The paternal grandmother shall communicate with the children in the English language only during such contact unless the supervisor is fluent in Arabic.

   (d)The mother and the paternal grandmother shall do all acts necessary to provide to any proposed supervisor a copy of Judgment of this Court and the report of Dr L, single expert, prior to them taking up the role of supervisor and request they read and consider these documents.

   (e)The paternal grandmother and the mother shall ask any proposed supervisor to execute an undertaking in accordance with Annexure “A” before they commence as a supervisor.

6. The paternal grandmother shall pay all fees associated with the use of the Contact Service including any interpreter fees.

7. The parties shall each follow the reasonable rules and directions of any supervisor.

8. The mother shall deliver the children to the Contact Service at the time nominated by the staff of the Contact Service to enable them to spend time with the paternal grandmother when time is being spent at a Contact Service.

9. In the event that contact is to be supervised by a person other than the Contact Service, then the mother shall deliver the children to that supervisor at the time agreed between herself and the paternal grandmother to enable them to spend time with the paternal grandmother.

10. In addition to the paternal grandmother attending to spend time with the children the father’s brother Mr R may also attend PROVIDED THAT prior to attending to spend time with the children he executes an undertaking in accordance with Annexure “B” and provides a copy of the same to the mother and the Contact Service.

11. The paternal grandmother is restrained and an injunction is granted restraining her from bringing the children into contact with the father, Ms V or the child Q in any way or providing gifts, cards, letters from, or photographs of, the father, Ms V or the child Q.

12. The paternal grandmother is restrained and an injunction is granted restraining her from discussing with the children any of the following:

    (a)       details of where the children live or attend school;

    (b)       the surname that the children are using;

    (c)       details about the care provided by the mother; and

    (d)       the circumstances which gave rise to the father being imprisoned.

13. The mother is permitted to travel overseas with the children PROVIDED THAT the mother send to the last known address of the paternal grandmother at least sixty [60] days before her planned departure from Australia brief particulars of proposed travel being the month of departure and the month of return of the children to Australia and the countries outside of Australia proposed to be visited.

14. The father, paternal grandmother, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children H born …2001, T born on …2002, S born on …2003 and Z born on …2006 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until the Court orders its removal SAVE AND EXCEPT that the said children are permitted to leave Australia in the company of the mother.

15. The mother shall do acts necessary to seek a referral for the children to attend C House for counselling as recommended by Dr L.

16. The paternal grandmother shall not criticise the mother, to or in the presence of the children and shall use her best endeavours to restrain any other person from doing so.

17. The mother shall not criticise the paternal grandmother, to or in the presence of the children and shall use her best endeavours to restrain any other person from doing so.

18. The Independent Children’s Lawyer is granted leave to provide a copy of these orders to the Director-General, Community Services, Department of Family & Community Services with a request that support and assistance be given to the mother and the children.

19. The appointment of the Independent Children’s Lawyer is to be discharged three [3] months from today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kozlovich & Hobbs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: PAC 6130 of 2008

Mrs Kozlovich

Applicant

Ms Hobbs

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before this Court concern the future parenting arrangements for four children H born in 2001 (eleven years old), T born in 2002 (ten years old), S born in 2003 (nine years old) and Z born in 2006 (six years old).

2. The parents of the children are the respondent mother, Ms Hobbs, and Mr Hobbs.

3. The father had discontinued his proceedings in this Court and did not participate at the trial.

4. The paternal grandmother, Mrs Kozlovich, sought orders that the children spend time with her each alternate Saturday from 11.00 am until 5.00 pm.

5. At the conclusion of the trial the parties indicated to the Court that certain parenting orders could be made unopposed.  The issues remaining to be determined centred around the frequency of contact between the children and paternal grandmother, the conditions to be imposed upon the time the paternal grandmother spent with the children, whether the mother should be permitted to change the children’s surnames and whether the mother should be permitted to travel overseas with the children.

Hearing

1. Following directions made by Her Honour Justice Stevenson on 6 March 2012, the matter was listed for defended final hearing before me commencing on 6 March 2012.  The trial continued on 7 March and 8 March 2012 when judgment was reserved.

2. At the hearing the paternal grandmother appeared unrepresented.  The mother was represented by Mr Fremanis of Counsel.  The Independent Children’s Lawyer was represented by Ms Leis of Counsel.

3. At the trial the paternal grandmother was permitted to have her son Mr R to assist her save and except that he was not permitted to remain in Court during the paternal grandmother’s oral evidence.  He was given this permission to assist the paternal grandmother notwithstanding that he was a witness for the paternal grandmother.

Relevant Background and Chronology

1. The applicant paternal grandmother was born in 1957 and is now aged 55.  The paternal grandmother moved to Australia in 1976.  The father was born in Australia in April 1981 and is now aged 31.

2. The mother was born in Lebanon in 1983 and is now aged 29.

3. The mother and father married in Lebanon on 22 October 1999.  Around the end of 1999 or the year 2000 the mother and father moved to Australia where they resided with the father’s family for a short time.

4. As indicated above the child H was born in 2001, T was born in 2002, S was born in 2003 and Z was born in 2006.

5. The mother alleges serious family violence by the father over a long period of time.

6. The mother alleges that there were significant difficulties in her relationship with the father in 2008.  These include the allegation that a friend of the mother and father (Ms V) moved in to take up residence in the former matrimonial home in 2008, thereafter residing in the matrimonial home.  The mother asserts that the father and Ms V thereafter formed a relationship.  The mother thereafter slept on the couch in the former matrimonial home and was not allowed to undertake a normal role caring for the children.

7. The allegations of the mother include serious allegations of significant violence by the father towards the mother.  The mother alleges that at times this took place in the presence of Ms V.  She alleges that the children were aware of the violent controlling behaviour of the father.

8. Following an assault upon her by the father in the presence of the father’s girlfriend Ms V, the mother left the former matrimonial home, taking the four children with her, on 24 October 2008.

9. The father has not had any contact with or spent time with the children since this incident in October 2008.

10. The mother has thereafter resided in placements arranged for her with the assistance of welfare authorities.

11. The father brought an application to the Family Court initially on 29 December 2008.  The mother filed a response opposing the orders in June 2009.  In June 2009 the paternal grandmother was granted leave to intervene.

12. In an Amended Initiating Application filed on 18 June 2009 the paternal grandmother sought orders as follows:

    “1.      That the children, namely:-

    ·[H] born on …2001;

    ·[T] born on …2002;

    ·[S born on …2003;  and

    ·[H] born on …2006

    spend time with the Paternal Grandmother each alternate Saturday from 11.00 am until 5.00 pm.”

13. The Notice of Discontinuance filed on 17 July 2009 by both the father and paternal grandmother discontinued the proceedings which had been commenced by the Amended Initiating Applications filed on 19 January 2009 and 18 June 2009 respectively.

14. In March 2010 the father was found guilty of common assault, assault occasioning actual bodily harm and detaining the mother against her will.

15. The actual wording of the charges for which the father (Mr Hobbs) were found guilty as follows:

    Count (1)“That [Mr Y] on or about 21 October 2008 at [C suburb] in the State of New South Wales did assault [the complainant]” (the mother in these proceedings).

    Count (2)“That [Mr Y] on or about 21 October 2008 at C suburb in the State of New South Wales did assault [the complainant]” (the mother in these proceedings).

    Count (3)“That [Mr Hobbs] and [Ms V] between 20 October 2008 and 25 October 2008 at [C suburb] in the State of New South Wales did while in the company of each other detain [the complainant] (the mother in these proceedings) without her consent and with intent to obtain an advantage, namely psychological satisfaction, and at the time of the detaining occasioned actual bodily harm on [the complainant]” (the mother in these proceedings).

    …

    Count (15)“That Ms [V] between [sic] 23 October 2008 at C suburb in the State of New South Wales did intentionally damage a quantity of ladies’ clothing, the property of [the complainant]” (the mother in these proceedings).

16. On 18 June 2010 the father was sentenced to imprisonment and will not be eligible for his first release date until September 2015 with his sentence concluding in September 2018.

17. On 18 June 2010 Ms V was sentenced to a non-parole period of three years six months to date from 8 March 2010 and to expire on 7 September 2013, and a balance of term of three years to expire on 7 September 2016 in relation to the take and detain offence.  On the malicious damage offence, Ms V was sentenced to a concurrent fixed term of one year four months to date from 8 March 2010 and to expire on 7 July 2011.

18. Both the father and Ms V appealed the decisions and sentencing.  On …2011 the decision of the Court of Criminal Appeal of New South Wales dismissed the appeal against the convictions and sentences.

19. The Court of Criminal Appeal decision concluded with the following comments:

    “125.In relation to the assault and malicious damage offences, it is legitimate to take into account that they were not isolated incidents, but were committed in the context of extensive, prolonged and serious wrongdoing perpetrated on the victim.  In relation to these, as well as the main offence, it is to be taken into account that the appellants have not shown any remorse.  In those circumstances, I am not satisfied that the sentences imposed for the assault and malicious damage offences were excessive.

    126.As regards the detain for advantage offence, I accept the Crown’s submission that these are serious examples of a serious offence.  Although [ Mr Y] was the principal in the violence shown towards the complainant and in her detention, [Ms V] was also an active participant.  The substantially lower non-parole period in her case appropriately reflected her lesser role, and also her prior good character, her youth and her pregnancy.”

20. (The above information is provided to the Court from the decision of the Court of Criminal Appeal and marked as Exhibit Number 8).

21. The mother and father were divorced in August 2010.

22. The father continues to maintain a relationship with Ms V.  On 17 October 2010 Q was born.  He is the child of the father and Ms V.

23. On 1 March 2011, arrangements were made between the mother, the father’s brother (Mr R) and the paternal grandmother for the mother and the children to visit the paternal grandmother’s home.  The mother was accompanied by a friend.  The mother, children and paternal family all spent time together for approximately three hours.  On the following day 2 March 2011, the father’s brother collected the children from the mother’s home.  They were taken to the paternal grandmother’s home where they had lunch.  After attending a shopping centre with the children, the mother was collected and the children returned to the care of the mother.

24. On 7 March 2011 further arrangements were made for the mother and the children to accompany the father’s brother to the paternal grandmother’s home where they spent time together.  The child Q was there. 

25. The mother’s evidence was that she was not aware that Q would be there and was concerned that he was presented to the children as their “brother” without her prior knowledge.

26. By an Application in a Case filed on 23 May 2011, the paternal grandmother sought the following orders:

    “1.That the children namely, [H] born on…2001, [T] born on…2002, [S] born …2003 and [Z] born on …2006 live with the mother.

    2.That the children spend time with the paternal grandmother from 10.00 am to 5.00 pm each Saturday.

    3.That for the purpose of changeover, the mother is to deliver and collect the children from [P Centre].

    4.For the purpose of Order 3, both parties to attend the nominated contact service and complete the intake procedures for the centre to organise the changeover.”

27. The initial orders sought by the mother in her Amended Response to the Initiating Application filed on 28 February 2012 was as follows:

    “1.That the mother have sole parental responsibility of the children, namely [H] born on…2001, [T] born on …2002, [S] born on …2003 and [Z] born on…2006, hereinafter known “the children”.

    2.That the children live with the mother.

    3.That the mother be permitted to travel overseas with the children.

    4.That the mother be permitted to change the surnames of the children without the knowledge or consent of the father.

    5.That the mother be at liberty to approach the Registrar of the Births, Death and Marriage in any State or Territory of Australia to have such change of name recorded on the children’s birth certificates.

    6.That the father and/or any members of the paternal family be restrained from contacting or approaching the children until they each attain the age of eighteen (18) years of age.

    7.That the Australian Federal Police are requested to maintain the names of [H] born on …2001, [T] born on …2002, [S]  born on…2003 and [Z]… born on …2006 on the Airport Watch list in force at all international points of arrival and departure in the Commonwealth of Australia and retain the children’s names on the Airport Watch list unless the permanent or the temporary removal of the children’s names are allowed by an Order of the Court (including the current Order) and for that purpose the children’s name are to be temporarily removed at any time when the mother is permitted by these orders to travel outside Australia.”

28. Following interviews in June and July 2011 Dr L provided his report dated 14 August 2011.

The Law

1. The most relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are set out in the following sections:

   Section 60B

   Objects of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)     to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

Section 60CC

How a court determines what is in a child’s best interests

Determining child’s best interests

(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional Considerations

(3)Additional considerations are:

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)the nature of the relationship of the child with:

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

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

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

(f)the capacity of:

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

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

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

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family, if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant.

(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)    has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child;  and

(ii)to spend time with the child;  and

(iii)to communicate with the child;  and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long-term issues in relation to the child;  and

(ii)spending time with the child;  and

(iii)communicating with the child;  and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

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

Section 60CA

Child’s best interest paramount consideration in making a parenting order

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

Section 60CD

How the views of a child are expressed     

(1)Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.

(2)The court may inform itself of views expressed by a child:

(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or

(b)by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or

(c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.

Note 1: Paragraph  (a)--subsection 62G(3A) generally requires the person giving the report to ascertain the child's views and include those views in the report.
Note 2: Paragraph  (b)--paragraph 68LA(5)(b) requires the independent children's lawyer for the child to ensure that the child's views are fully put before the court.

Section 60CG

Court to consider risk of family violence

(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a)is consistent with any family violence order; and

(b)does not expose a person to an unacceptable risk of family violence.

(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Section 61DA

Presumption of equal shared parental responsibility when making parenting orders

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

Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B.  It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

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

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

(b)family violence.

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

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

Section 62G

Reports by family consultants

(1)This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.

(2)The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

(3)If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

(3A)A family consultant who is directed to give the court a report on a matter under subsection (2) must:

(a)ascertain the views of the child in relation to that matter; and

(b)include the views of the child on that matter in the report.

Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).

(3B)Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:

(a)    the child's age or maturity; or
(b)    some other special circumstance.

(4)The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

(5)For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

Note:  Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).

(6)      If:

(a)a person fails to comply with an order or direction under subsection (5); or

(b)a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5);

the family consultant must report the failure to the court.

(7)On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.

(8)A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.

Section 64B

Meaning of parenting order and related terms

(1)A parenting order is:

(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

However, a declaration or order under Subdivision E of Division 12 is not a parenting order .

(2)A parenting order may deal with one or more of the following:

(a)the person or persons with whom a child is to live;

(b)the time a child is to spend with another person or other persons;

(c)the allocation of parental responsibility for a child;

(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e)the communication a child is to have with another person or other persons;

(f)maintenance of a child;

(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i)     a child to whom the order relates; or

(ii)    the parties to the proceedings in which the order is made;

(h)the process to be used for resolving disputes about the terms or operation of the order;

(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

(3)Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

(4)The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

(a)letter; and

(b)telephone, email or any other electronic means.

(4A)Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

(a)resolving any dispute about the terms or operation of the order; or

(b)reaching agreement about changes to be made to the order.

(5)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order .

(6)For the purposes of this Act:

(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and

(b)a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

(c)a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

(d)a parenting order that:

(i)     allocates parental responsibility for a child to a person; or

(ii)    provides that a person is to share parental responsibility for a child with another person;

is made in favour of that person.

(9)In this section:

"this Act" includes:

(a)the standard Rules of Court; and

(b)the related Federal Magistrates Rules.

Section 64C

Parenting orders may be made in favour of parents or other persons

A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

Section 65C

Who may apply for a parenting order

A parenting order in relation to a child may be applied for by:

(a)either or both of the child's parents; or

(b)the child; or

(ba)a grandparent of the child; or

(c)any other person concerned with the care, welfare or development of the child.

Section 69ZT

Rules of evidence not to apply unless court decides

(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

(a)    the court is satisfied that the circumstances are exceptional; and

(b)the court has taken into account (in addition to any other matters the court thinks relevant):

(i)     the importance of the evidence in the proceedings; and

(ii)    the nature of the subject matter of the proceedings; and

(iii)   the probative value of the evidence; and

(iv)   the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

(5)Subsection (1) does not revive the operation of:

(a)a rule of common law; or

(b)a law of a State or a Territory;

that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

1. The Independent Children’s Lawyer referred the Court to the well-known decision of M v M (1988) 166 CLR 69 in which the High Court discussed the risk which would justify a Court denying a parent access. Whilst this application was for the paternal grandmother and other members of the paternal family to spend time with the children, the principles concerning the risk to the children are still relevant.

Discussion of significant evidence and findings

1. The Court received the report of Dr L, a Psychologist requested to undertake an assessment in relation to the family.  The Psychologist’s report is dated 14 August 2011.  The report was prepared after interviews with the paternal grandmother and the uncle in June 2011, an interview with the father in gaol in July 2011 and interviews with the mother and children in July 2011.

2. After discussing the issues and the history of the matter, the report deals with the assessment of the mother, provides information about the children and observations of the children with the mother.  The report also includes particulars of the interviews with each of the children, the paternal grandmother and uncle and particulars of the telephone interview with the father.

3. In paragraphs 106 and 107 of the report Dr L says:

   “106.Formulation. This is a very difficult matter in a number of respects.  Firstly there are obvious child protection issues involved.  There are criminal convictions against the father that have been upheld.  The father remains in denial of the offence.  The father appears to have been extraordinarily abusive to the mother and appears to have been unconcerned about the exposure of the children to this level of abuse.  He appears to have no empathy and no concern about the mother’s situation.  On the accounts given the level of the abuse was long term and there isn’t any way that this family couldn’t have been aware of it.  It appears that the family remain extraordinarily supportive and are simply denying the conviction and the reasons for the conviction.  There is no doubt that both [Mr Hobbs] and his family perceive this as Ms Hobbs’ problem rather than a matter of domestic violence.  Thus the family are not in a position to help the children explore and work through the shock and trauma they would experience at the loss of the father, the observation of the assault against their mother, and fear that would have engendered.

   107.The description the father’s family give of Ms [Hobbs] is of a woman who lacks parenting skill and has some psychological fragility.  There is absolutely no doubt that Ms [Hobbs] has psychological fragility:  whether that is because of things from her childhood which she denies to me occurring, or whether it is as a function of a post traumatic stress condition that she would have incurred as a function of the abuse against her (or a mixture of both).  On observation she appears to have significant parenting skills deficits and I believe lacks confidence.  The DoCS filer (sic) material also support the view that the mother lacks substantial parenting skill and the children are likely to experience neglect and some low level abuse at the hands of their mother.  The mother clearly has parenting skill deficits and is psychologically fragile and is unable to cope.  She appeared to lack the capacity to structure her children’s behaviour and on her self-report is extraordinarily stressed.  She is in need of continuing intervention by the Department of Community Services for providing parenting supports and improving the accommodation if possible for the family.  Across the two interviews it was hard to gauge how much support the Department is offering her, but it seems it is likely more than she initially reported.  There is a substantial Departmental file.”

1. After discussing the various difficulties in the versions given by those he interviewed and the literature concerning the relevant issues of family violence and parenting deficits, the report of Dr L concludes at paragraphs 119 and 120:

   “119.  Recommendations.  The children need to remain with their mother.  The mother is (sic) need of support, and I believe that the Department of  Community Services is aware of these needs but it is hard to gain an understanding from the mother how much urgency is in the Department’s dealings with the family.  Substantial harm to the children’s well being is occurring at the moment because of the location of this family.  At the very minimum the welfare needs of this family are:

   ·Support by DoCS to help the family moved (sic) into a private rental property away from the incivility of the current Housing Commission area

   ·Need to link Ms [Hobbs] into an intensive family support program and to work with that program to provide her with in-house parenting support as well as respite care.

   ·Provision of treatment services for the children to work through trauma.  An initial inquiry of [C House] appears useful in this regard.  Interrelate may also be able to provide some support.

   ·Re referral of Ms [Hobbs] to VCT to re engage over treatment for her PTSD.

   120.The mother is worried that contact with the father’s family will undermine her, and I believe that until the paternal family become less defensive of [Mr Y] and understand the terrible situation Ms [Hobbs] was in, it is hard to believe that they would not try to promote their view of the situation and undermine her.  Nonetheless, the children will have identity needs and there is likely a residual attachment of the children to the paternal family.  It seems that contact is desirable but potentially destabilising to the children.  It must be made safe.  Supervised contact four times a year might therefore be appropriate to retain that identity contact until such time as the paternal family have shown their ability to understand and have some empathy for the position of Ms [Hobbs].  The families are related.  Information transfer about each other will occur through extended family and intermediaries.  Accepting this is likely over time, it is best to have some control of that process.  However, I doubt that attempting mediation or some other means to speed up the process of acceptance of the harm done to Ms [Hobbs] and her children by the father will be of little value.”

2. Dr L gave oral evidence and was cross-examined.  He was the first witness to give oral evidence.  In his evidence he confirmed that the mother required support in relation to her parenting deficits.  He was hesitant about the advantages for the children about a change of name.  He confirmed his assessment was that there was no acceptance by the paternal grandmother of the violence on the part of the father.

3. During his evidence, Dr L confirmed that it would be appropriate if there were professional supervision of any time the father’s family spent with the children and that that supervision would require someone who spoke Arabic.

4. He confirmed his view that the paternal grandmother and uncle remain very loyal to the father and appeared to be placing the father’s interest in priority.

5. Dr L acknowledged the mother’s ongoing concern about the risk of physical harm to the mother if the father became aware of her address.

6. During cross-examination by counsel for the mother, Dr L emphasised that it was crucial that the father’s family accepted what the father had done to the mother.  He also expressed the opinion that the mother needs to be convinced that this was a genuine change by the father’s family.  He accepted that in view of the history of the relationship between the mother and father and the father’s family, the mother was justifiably concerned for her safety.

Paternal grandmother’s evidence

1. The paternal grandmother relied upon the following affidavits:

   ·Mr R filed 5 March 2012 (father’s brother);

   ·Ms F filed 5 March 2012 (father’s brother Mr R’s wife);

   ·Mr A filed 5 March 2012 (father’s brother);

   ·Ms D filed 5 March 2012 (father’s brother Mr A’s wife).

2. During her oral evidence the paternal grandmother opposed any change of name for the children and opposed any travel outside of Australia for the mother and children.  She asserted that her opposition to overseas travel was based upon her fear that the mother would not bring the children back to Australia.

3. The paternal grandmother wanted unsupervised time.  She also maintained that she had never seen her son, the father of the children, hit the mother. 

4. Later when being cross-examined by the Independent Children’s Lawyer, the paternal grandmother agreed to supervision if necessary.

5. During cross-examination by counsel for the mother, the paternal grandmother appeared to oppose any supervision if it was necessary for her to pay for an Arabic interpreter.

6. The paternal grandmother was reluctant to answer questions about the assaults upon the mother and the criminal convictions of the father.  When asked about the father’s history of criminal convictions the paternal grandmother replied saying that she couldn’t remember those matters.  When specifically asked about the behaviour of her son which resulted in his criminal convictions, the paternal grandmother used words to the effect that “I believe maybe he did it but he didn’t detain her.”

7. The paternal grandmother did not accept that it was reasonable for the mother to fear for her safety.

8. In relation to the assaults upon the mother the paternal grandmother referred to them as being not acceptable “but it’s happened”. 

9. During the cross-examination of the paternal grandmother by counsel for the mother, when asked about the time she is now seeking to spend with the children each Saturday, the paternal grandmother first of all said “that is what he said to ask”.  When shown the Application in a Case setting out the orders that she was seeking and asked about changeovers, the paternal grandmother said “I didn’t ask for this”.

10. During this cross-examination the paternal grandmother also agreed that she told Dr L that her son had “somehow or other got blamed for a cat-fight” between the mother and Ms V.  Her evidence about her son’s actual guilt of the offences for which he was convicted was inconsistent.

11. The paternal grandmother denied the allegations the mother made about her being present during an assault by the father upon the mother.  She denied ever slapping the mother.  When asked if she accepted the mother’s fears concerning her safety, the paternal grandmother referred to her son being “inside” and that when he gets out the mother had an Apprehended Violence Order.

Witness Mr R

1. The father’s brother Mr R (“the father’s brother”) gave evidence.  When cross-examined by the Independent Children’s Lawyer about whether he accepted that there had been serious domestic violence, the father’s brother indicated “obviously I agree with that because he is in gaol”.  He then however went on to say that he had doubts about why “we were going over the past”.  He reiterated that he considered that the father and mother had had a fight and that the father was in gaol “the rest is history”.  He admitted that he gave evidence on behalf of the father at the father’s criminal trial but said it was not in support of his brother but “just my views”.

2. In his cross-examination by the Independent Children’s Lawyer the father’s brother did not accept that the mother had any reason to be concerned for her safety.  During the cross-examination and after detailed questioning, the father’s brother reluctantly conceded that his brother was wrong in his actions towards the mother.

3. The father’s brother agreed that if supervision was necessary he would go along with that and would help pay for it.  He expressed reluctance to pay for an Arabic interpreter saying words to the effect that it was “too expensive”.

4. During cross-examination by counsel for the mother, the father’s brother was asked whether he believed the father had been violent to the mother.  His answer was to the effect that the Court had come to that conclusion “so you’ve got to go with court’s decision”.  When questioned about the remarks he made to Dr L, the father’s brother conceded that he had at that time thought that the violence was as a result of “just a cat-fight” between the mother and Ms V.

5. The father’s brother conceded that that was what he thought at the time.  When asked what he thought now, he replied that he did not know what he thought.

Witness Ms D

1. The paternal grandmother relied upon the evidence of Ms D, whose affidavit was filed on 5 March 2012.  She was cross-examined by the Independent Children’s Lawyer and counsel for the mother.  When asked directly by counsel for the mother whether she accepted that the father had assaulted the mother she said “No”.  She maintained that her husband shared her view.

2. It was put to the witness that Dr L’s report indicated that T and H were aware of the violence on the evening the mother and father separated.  She was then asked whether she still thought the children should visit the father in gaol and she said “Yes”.

Witness Ms F

1. The paternal grandmother relied upon the evidence of Ms F.  Her evidence supported the father and his family.  She has had no relationship previously with the mother or the children.

Mother’s Evidence

1. The mother then gave evidence.  She relied upon three affidavits filed 22 June 2009; 26 June 2009 and 28 February 2012.

2. During her oral evidence she said that following upon meetings with Housing NSW she was hoping to obtain better accommodation for herself and the children within one to two months.

3. At the commencement of the cross-examination by the Independent Children’s Lawyer the mother continued to oppose any arrangement whereby the paternal grandmother would spend time with the children.  She maintained her wish to change the names of the children and be permitted to take them overseas. 

4. She maintained her resistance to the children having contact with the child Q.  She said that it is hard for her to accept her children having a relationship with the child based upon the treatment she received from Ms V and the father.

5. The mother reluctantly conceded that at some time in the future (but not now) she might consider the children having some contact with Q.

6. When asked about her desire to travel overseas the mother emphasised that she was settled in Australia.  The mother indicated that she did not have funds to travel at the moment but might, in the years to come, want to go for a holiday overseas.

7. The mother conceded during cross-examination that on one occasion she had spoken to the father’s brother Mr R and indicated that if the passports and blue-books for the children were returned, she was willing to let him see the children.  Later during cross-examination by the Independent Children’s Lawyer the mother conceded that if the child Q was not present then some of the paternal family could spend some time with the children.

8. During cross-examination by the Independent Children’s Lawyer’ Counsel the mother gave convincing evidence about her ongoing concerns that she would not be safe if the father was able to locate her or the children.  She maintained her concern that the paternal grandmother and father’s brother would tell the children that the father had not done any “bad things” to her and that they might question the children inappropriately.

9. The mother also clearly and consistently maintained that both the paternal grandmother and the father’s brother were aware of the controlling and violent circumstances in the household before the mother and children left.

10. The mother was then cross-examined by the father’s brother on behalf of his mother, the paternal grandmother.

11. During cross-examination the mother was asked if Ms V was to have no contact with the children would she be happy for Q to spend time with the children and her reply was “Maybe, not sure”. 

12. During her oral evidence the mother confirmed that she would not have a problem with supervised time if the child Q was not present and that if there could be conditions which would ensure that those present would not find out about the mother’s address or discuss with the children the legal proceedings or their father’s convictions.

13. One of the conditions included that the children not be taken to the gaol and not talk about the father.  When asked how often she considered the time with the paternal family should be, she said about six times a year on weekends at Contact Centre.

14. The mother said she did not know what she would do if the children refused to attend but that she would speak to them.

15. On re-examination the mother gave evidence that her family in Lebanon did not have enough finances to support her and the children and that her extended family finances would not be a reason for her to fail to return to Australia should she be given leave to go overseas.

Submissions at conclusion of the trial

1. In final submissions on behalf of the paternal grandmother it was emphasised that she was opposed to the children changing their names or going overseas.  The request was made for an order that would allow the paternal family to see the children in a “normal family environment”.  It was submitted that the arrangements at a Contact Centre were more complicated for the children than a normal family environment.  The paternal grandmother maintained that visits four times a year was not sufficient.

2. On behalf of the mother it was submitted that the Court should consider restricting the contact between Q and the children because of the anxiety it would cause to the mother, which it was submitted was reasonable having regard to the actions of Q’s parents towards the mother.  It was submitted that this may compromise her ability to adequately parent the children.  Submissions made on behalf of the mother were that she consented to certain of the orders in the amended Minutes of Order proposed by the Independent Children’s Lawyer, but sought certain restrictions and conditions, together with orders giving her leave to travel overseas with the children provided that she gave appropriate notice and details to the paternal grandmother.  The mother maintained the application for leave to change the children’s surnames.

3. The amended Minutes of Order proposed by the Independent Children’s Lawyers were as follows:

   1.All previous parenting orders are hereby discharged.

   2.The mother shall have sole parental responsibility for the children, [H] (born …2001),[T] (born …2002), [S] (born …2003), and [Z] (born …2006) (“the children”).

   3.The children shall live with the mother.

   4.Within 28 days each party shall complete the application form and intake procedures with the [M] Contact Service.

   5.The children shall spend time with the paternal grandmother as follows:

   a.    For twelve months on four (4) occasions per year for 2 hours each supervised by [M] Contact Service at such times and on such dates as nominated by the organiser of that Contact Service;

   b.    Thereafter, on four (4) occasions per year for 2 hours supervised by a person mutually agreed between the Mother and the paternal grandmother provided that person executes an undertaking which appears as Annexure “A” to these Orders and in default of agreement such time to continue to be spent supervised by [M]Contact Service or such other supervised contact service as the mother and the paternal grandmother mutually agree.

   c.    The paternal grandmother shall communicate with the children in the English language only during such contact unless the supervisor is fluent in Arabic.

   d.    The mother and the paternal grandmother shall do all acts necessary to provide to any proposed supervisor a copy of Judgment of this Court and the report of [Dr L], single expert, prior to them taking up the role of supervisor and request they read and consider these documents.

   e.    The paternal grandmother and the mother shall ask any proposed supervisor to execute an undertaking in accordance with Annexure “A” before they commence as a supervisor.

   6.The paternal grandmother shall pay all fees associated with the use of the Contact Service including any interpreter fees.

   7.The parties shall each follow the reasonable rules and directions of any supervisor.

   8.a.  The mother shall deliver the children to the Contact Service at the time nominated by the staff of the Contact Service to enable them to spend time with the paternal grandmother when time is being spend (sic) at a Contact Service.

   b.   In the event that contact is to be supervised by a person other than the Contact Service, then the mother shall deliver the children to that supervisor at the time agreed between herself and the paternal grandmother to enable them to spend time with the paternal grandmother.

   9.In addition to the paternal grandmother attending to spend time with the children, [Mr R] and other members of the paternal family (excluding the father and Ms V) may also attend, as approved in writing by the mother, subject to the rules of the Contact Service.

   10.The paternal grandmother is authorised to bring the child, [Q], to spend time with the subject children, subject to the rules of the Contact Service.

   11.The paternal grandmother is injuncted and restrained from bringing the children into contact with the father or with [Ms V] or providing gifts, cards, letters from or photographs of the father or [Ms V].

   12.The paternal grandmother is injuncted and restrained from discussing with the children any of the following:

   a.    details of where the children live or attend school;

   b.    the surname that the children are using;

   c.    details about the care provided by the mother; and

   d.    the circumstances which gave rise to the father being imprisoned.

   13.The mother and the paternal grandmother shall do all acts to request that any paternal family member who is to attend to spend time with the children execute an undertaking in accordance with Annexure “B” before attending for time with the children.

   14.The mother is restrained from removing the children from the Commonwealth of Australia without further order of the court or with written permission of the paternal grandmother.

   15.The paternal grandmother and mother must forthwith deliver to the Sydney Registry of the Family Court of Australia any passport held in the children’s names.

   16.That until further Order each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child/children [H] (born …2001), [T] (born …2002), [S] (born …2003), and [Z](born …2006) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/names on the Watch List until the Court orders its removal or with the written consent of both the paternal grandmother and the mother.

   17.a. The mother is granted leave to change the children’s surnames and the details of that order shall issue separately and only to the mother and the Independent Children’s Lawyer.

   b. The Order referred to in the preceding sub-paragraph shall also include a new Order placing the children on the Airport Watch List under their new surname.

   18.The mother shall do acts necessary to seek a referral for the children to attend [C] House for counselling, as recommended by [Dr L].

   19.The mother shall do all acts necessary to request that the Department of Family & Community Services refer the children to either the Brighter Futures program and/or the Whole Family program in order to provide support to the children.

   20.The paternal grandmother shall not speak badly about the mother, to or in the presence of the children and shall use her best endeavours to similarly restrain any other person from doing so.

   21.The mother shall not speak badly about the paternal grandmother, to or in the presence of the children and shall use her best endeavours to similarly restrain any other person from doing so.

   22.The Independent Children’s Lawyer is granted leave to provide a copy of these orders to the Director-General, Community Services, Department of Family & Community Services with a request that support and assistance be given to the mother and the children.

   ANNEXURE A

   UNDERTAKING

   I,, hereby undertake as follows:

   1.I agree to be a supervisor of the time the children spend with their paternal grandmother and paternal family in accordance with the Court Orders. 

   2.Prior to taking up that role, I have read the Judgment of this Court and the report of [Dr L].

   3.I will intervene and terminate contact if a paternal family member does any of the following:

   (a)attempts to communicate with the children in Arabic (unless the supervisor also speaks Arabic);

   (b)speaks to the children in such a way as to seek information about where the children live, attend school or what surname they use;

   (c)speak to the children about the care provided by the mother; or

   (d)speak to the children about the domestic violence between the father and the mother.

   4.In the event that I have to terminate such contact because of a breach of the conditions, I will ring the DOCS Helpline (132111)and make a Risk of Harm Report.

   ANNEXURE B

   UNDERTAKING

   I,, hereby undertake as follows:

   1.During periods of time when I am spending time with the children, I will abide by the following conditions:

   a.I will not speak Arabic to the children unless the supervisor is Arabic speaking.

   b.I will not question the children about where they attend school, where they live or what their surname is.

   c.I will not question the children about the care provided by their mother.

   d.I will not speak to the children about the domestic violence between the father and the mother.

   2.I understand that if I breach these, then the contact supervisor will terminate the contact.

1. Counsel for the mother in final addresses indicated that the mother would consent to orders in terms of paragraphs 1 to 8 inclusive and 18 to 22.

2. The mother did not consent to orders in terms of the other paragraphs.  So far as paragraph 9 was concerned the submission was that the reference to “other members of the paternal family” was too wide and that the mother specifically wished to exclude the child Q.  The mother was not opposed to Mr R (the father’s brother) attending.

3. Counsel for the mother also indicated that the mother would support paragraph 12 provided that it was extended to permitting anyone else from discussing the issues mentioned therein.  Counsel for the mother indicated that the mother would agree to an order in terms of paragraph 13.  In relation to the proposed orders in paragraph 14 and 15 of the Independent Children Lawyer’s minutes, the mother opposed these.  It was submitted that the mother should be permitted to travel overseas upon giving, for example, 60 days notice to the paternal grandmother, together with particulars of the itinerary.

4. It was submitted that the change of name as sought by the mother was based upon the mother’s reasonable fear that about being located by the father (or someone looking for them on his behalf) and that therefore such change of name is in the children’s best interest.

5. The mother consented to the orders sought in paragraphs 18 to 22, save and except that it was submitted that she had completed the whole programme and therefore paragraph 19 was not necessary.

6. At the conclusion of the final submissions the mother was conceding that the children should spend time with the paternal grandmother on four occasions per year for two hours on each occasion supervised by the M Contact Service and thereafter on four occasions per year for two hours supervised by an agreed person, provided the agreed person executed the undertaking proposed by the Independent Children’s Lawyer, that the paternal grandmother only speak English unless the contact supervisor was fluent in Arabic and that certain relevant documents, such as Dr L’s report, be made available to the supervisor.

7. The question therefore remains as to whether it is necessary for the time the paternal grandmother spends with the children to be limited to the four occasions per year and whether it is in the children’s best interests to require that such time be supervised.

8. The other remaining issues concern the mother’s desire to change the children’s name, be permitted to take the children overseas and the restrictions placed upon other paternal family members participating in the time, including whether Q, the father’s son by Ms V, should attend.

Significant findings on matters in dispute

1. In the affidavits filed by the mother she set out a significant history of violence by the father towards her.  She refers to the violence commencing shortly after the parties were married and continuing throughout the relationship.  Her affidavit refers to the husband kicking her, hitting her and pulling her hair.  She refers to being punched in the stomach, legs, arms and all over her body, including at times when she was pregnant.  The mother alleges that she was forced to have sex with the father.  She refers to him slapping her.  The mother refers to the father being controlling of her and feeling isolated.

2. The mother’s affidavits also refer to the intimate sexual relationship between the father and Ms V.  She says that in about May 2008 Ms V moved in to the family home, resided in the bedroom with the father.  She then slept on the couch.

3. The mother’s affidavit also refers to the father hitting H. 

4. The affidavits of the mother also refer to the incidents which occurred on the 23 October 2008 (which is the incident which brought about the end of the relationship).  The violence in the incident is referred to in some detail.  The mother asserts that H and Z were aware of and present during part of the violent incident.  It is alleged that Ms V was present on this occasion and participated in the violence towards the mother.

5. Amongst the exhibits tendered by the Independent Children’s Lawyer and received by the Court are the Sentencing Remarks of the Judge of the District Court (Exhibit 5).  This confirms that after a jury trial the father was convicted of assault on two counts and that the father and Ms V were both convicted on count three being:

   “Between 20 October 2008 and 25 October 2008 at [C suburb]each offender did whilst in the company of each other detained [Ms Hobbs] without her consent and with intent to obtain an advantage, namely psychological satisfaction and at the time of detaining occasioned actual bodily harm of [Ms Hobbs]”.

6. That offence carried with it the potential for up to 25 years of imprisonment.  (See page 1 of Exhibit 5).

7. Ms V was also found guilty of one count of malicious damage. 

8. The Sentencing Remarks set out the serious assaults and offences for which the mother was a victim.  One of the remarks of the sentencing Judge was “She had clearly been a victim of prolonged and widespread violence”.  (Page 6 of the Sentencing Remarks).

9. The father was sentenced to various terms of imprisonment which were concurrent, the longest being a term of five and a half years from 8 March 2010 (being the non-parole period of five and a half years) with the balance of the term expiring on 7 September 2018. 

10. Ms V was sentenced to a non-parole period of three and a half years from 8  March 2010, which makes her eligible for release on 7 September 2013, with the balance of the three years expiring on 7 September 2016.  She was also sentenced to a concurrent period of 16 months in relation to the malicious damage charge.

11. During the oral evidence the mother was not significantly challenged about the violence by the father and Ms V.

12. The paternal grandmother and other witnesses called on her behalf at times acknowledged some violence by the father towards the mother, but at other times appeared reluctant.  This evidence was, at times, inconsistent.

13. The paternal grandmother denied being present at any time of violence by the father towards the mother and denied any prior knowledge of the violent, controlling behaviour by the father.

14. Having considered all the evidence, and particularly because the mother was not significantly challenged in her version of events, I find the mother’s evidence far more reliable than that of the paternal grandmother and her witnesses.

Conclusions

1. The provisions of section 61DA require the Court to apply a presumption that is in the best interests of the children for the parents to have equal shared parental responsibility.  Subsection (2) provides:

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

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

   (d)family violence.

2. In this matter there are clear grounds upon which to find that the father has engaged in family violence.  The evidence of the mother and the convictions of the father for serious offences readily establish the reasonable grounds required under section 61DA.

3. Further, the provisions of section 61DA(4) allow the presumption to be rebutted by evidence which “satisfies the court that it would not be in the best interests” of the children for the parents to have equal shared parental responsibility. 

4. In this matter the evidence of the violence by the father, his convictions for assault offences upon the mother and the mother’s ongoing concerns about future risk to her and the children, readily satisfies the Court that it is not in the best interests of the children for the parents to have equal shared parental responsibility.

5. All of the above factors readily support orders that the mother have sole parental responsibility for the children and that they live with her.

6. Section 60CC sets out the matters which the Court is required to consider when making determinations about the children’s best interests.

7. The primary considerations set out in section 60CC(2) emphasise both the benefit to the child of having a meaningful relationship with both parents and the need to protect the child.

8. Dr L’s opinion, which was not significantly challenged, was that the domestic violence by the father upon the mother had resulted in “significant psychological overlays as a consequence of the abuse”.

9. These considerations are related to the objects set out in section 60B.

10. I accept the evidence of Dr L at paragraph 117 of his report which states:

    “117.As a corollary, the concern is that given the grandmother’s (and [Mr R’s]) denial of the violence the father perpetrated against the mother, the potential for the grandmother to undermine the relationship of the children with the mother remains high.  To my mind these children have been exposed to endemic family violence, accepted by all parties, and the children are at significant risk as a result.  In that circumstance I think it would be quite unwise to trust that [Mr R] or the grandmother would be able to constrain themselves from making comments that would place the mother in a bad light and create confusion in the children who do appear to have been witnesses to the violence that took place.  The failure of the paternal family to engage in a realistic way with the issue of [Mr Y’s] domestic violence makes it extremely unwise to assist them in having contact with the children except in tightly supervised situations.”

11. The violent conduct of the father towards the mother, at times in the presence of the children or in the household in which the children resided, creates a significant need to protect the children from psychological harm.  Any possible benefit the children might have if they establish a meaningful relationship with the father is significantly outweighed by the need to protect the children from harm.  This harm includes the need not only to protect them from any risk of physical harm but to reduce any psychological harm that could be caused by exposing the children to the father or, if his family do not recognise the father’s past abusive behaviour.

12. The additional considerations which are particularly relevant in this matter are as follows:

    (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

13. The expert reports indicated that H, T and S did not wish to spend time with the father or his family.  H is now ten, T nine and S eight.  It is therefore appropriate to give some regard to their wishes taking into account the history of the experiences of the children whilst in the household with the father, mother and Ms V.  Z is six years old.  His expressed views and wishes therefore would not normally be given significant weight.

14. Taking into account the young ages of the children, their wishes are not determinative, but worthy of some consideration.

    (b)the nature of the relationship of the child with:

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

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

15. The mother has a strong ongoing relationship with each of the children.  The father has not had any relationship with the children following his conviction of serious assaults upon the mother.

16. The children currently have a limited relationship with the paternal grandmother and the father’s brother.  The evidence of the mother, paternal grandmother and the father’s brother indicate that the children spent time with, and were from time to time in the care of, the paternal grandmother and had a relationship with the father’s brother.  The relationships between the children, the paternal grandmother and the father’s brother have not been continued since the separation of the mother and father, save and except for brief periods of interaction.

17. Subsection (c) not relevant.

    (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

18. The Court accepts the mother’s evidence about her ongoing anxiety as a result of the family violence she experienced.  A change in the children’s circumstances which included regular time with the paternal family or unsupervised time with the paternal family is likely to have a significant detrimental effect upon the mother’s psychological health and thereafter possibly put at risk the development of the children.

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

19. There are difficulties associated with the mother’s reasonable concern for her safety which would require the Court to impose appropriate conditions upon any time that the paternal family spend with the children.

    (f)the capacity of:

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

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

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

20. The evidence indicates that the mother has at times had difficulty providing appropriate care for the children.  She requires assistance of third parties from time to time to improve her parenting of the children and to reduce the impact of the trauma she has suffered following the father’s violence.  The father does not have the capacity to provide for the needs of the children.

21. The paternal grandmother has the capacity to provide for the physical needs of the children, but has limited capacity to provide for their emotional and psychological needs because of her inconsistent and unreliable approach to recognising the harm caused to the mother and children by the father’s violent controlling behaviour.

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

22. The children’s culture and background are relevant considerations.  The Court is satisfied that the mother will provide the children with information and experiences about their family culture and background.  The children would benefit from visits to the mother’s home country which would give them first hand experience of the culture and traditions of the family.

23. The order for change of surname will not be made.

24. The children are of an age where a change of surname would be a significant event, particularly for the oldest three children.  The time which has passed since October 2008 is also a factor to be considered when weighing the factors about the change of name.  The mother has agreed to the paternal grandmother and father’s brother spending supervised time with the children.  Any change of name may therefore provide little benefit to the children and risks further psychological problems and confusion for the children.

25. The mother should therefore be free to travel overseas with the children.  The Court is not satisfied that the paternal grandmother’s concerns about the return of the children have established a sufficient reason to restrict the mother’s ability to travel with the children when, and if, she can afford to do so.

26. Subsection (h) is not relevant.

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

27. The mother’s attitude to the responsibilities of parenthood and to the children supports orders being made which protect the children from risks that might be encountered if the paternal family spend unsupervised time with the children.

    (j)any family violence involving the child or a member of the child's family; and

    (k)any family violence order that applies to the child or a member of the child's family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

28. The Court is satisfied that the mother has experienced serious violent behaviour by the father.  Two of the children were witness to the violent assault by the father.  All of the children were resident in the household in which the violence and controlling behaviour of the father took place over a significant period of time.  Ms V, the mother of Q, also engaged in violence towards the mother.

29. The family violence in this matter provides a reasonable background for the mother’s concern about contact with the father’s family.  Her anxiety in these circumstances is reasonable.

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

30. The Court considers that in most cases it is preferable to make an order that would be least likely to lead to further proceedings in relation to the children.

    (m)any other fact or circumstance that the court thinks is relevant.

31. The mother wished to impose a condition on the time the paternal grandmother spent with the children, such that the child Q not be present.  I accept that the mother’s anxiety and emotional concern relate to the child Q because he is the child of the two people (the father and Ms V) who have been found guilty of assaulting her.  It is therefore in the children’s best interests that the child Q not be permitted to participate in the supervised time the paternal grandmother spends with the children.  Similarly, the mother is concerned about who else might be present and how they might behave.  The mother’s ability to care for the children should not be reduced by ongoing anxiety about these matters.  The conditions sought by the Independent Children’s Lawyer are therefore appropriate.

Orders

1. For the above reasons the orders set out herein are orders which the Court considers to be in the best interests of the children.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 November 2012.

Associate: 

Date: 20 November 2012