KUSIC & SHORT

[2012] FamCA 816

FAMILY COURT OF AUSTRALIA

KUSIC & SHORT [2012] FamCA 816

FAMILY LAW – CHILDREN – Application to change interim parenting arrangements made by consent – Both parties seeking live with order – Family violence between father and his sister consideration as to whether father poses risk of harm to the children – No change to interim Orders pending final hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Kusic

RESPONDENT: Mr Short

FILE NUMBER: PAC 3973 of 2010

DATE DELIVERED: 19 July 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 19 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Hanna

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Mr White

White & Associates

Orders

1. That I dismiss all interim applications.

2. That I vary Order 4(a) made on 26 May 2011. In lieu thereof, the mother shall spend the first two weekends in each three weekend cycle from Friday 5.00 pm until Sunday 5.00 pm commencing 27 July 2012.

3. That the mother shall return the children to the father at 5.00 pm on Sunday 22 July 2012.

4. That the return and thereafter all changeovers shall occur at the McDonalds Family Restaurant at W.

5. That the listings before myself and Registrar Tran on 26 July 2012 be and are hereby vacated.

6. That the parties attend upon a conference with a Family Consultant of this Registry and for that purpose I direct the legal representatives of the parties communicate with the Director of Court Counselling to arrange such an appointment.

7. That I stand the matter over thereafter, that is after the parties have attended upon a Family Consultant, for a conference with a Registrar at a time to be appointed by a Registrar.

8. That in the event of any difficulties, the matter may be relisted before myself upon giving forty-eight (48) hours notice to the other party and to the Court.

9. That pursuant to s 68L(2), the interests of the children H born … July 2004 and J born … August 2007 be independently represented by a lawyer and it is requested Legal Aid New South Wales, Parramatta make arrangements as soon as practicable to secure that independent representation of the children's interests.

1. That the legal representatives forward to the officer in charge of such appointments at the Legal Aid office of Parramatta all documents sought to be relied upon by them in relation to this matter.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3973 of 2010

Ms Kusic

Applicant Mother

And

Mr Short

Respondent Father

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me on an interim basis to determine for the immediate future where the children of the parties should live.  Those children are H, who was born in July 2004, and J, who was born in August 2007.  The children have lived with their father until recently pursuant to Orders made on 26 May 2011 in the Federal Magistrates Court of Australia at Parramatta by consent. 

2. Those Orders conferred equal shared parental responsibility upon the parents and provided for the children to live with the father.  The mother was then to spend time with the children as defined with some precision in those Orders. 

3. The Orders provided that changeover in respect of the children was to be affected at a McDonald’s restaurant at W. 

4. It would appear that the parties, however it came to pass, varied the effect of that Order for collection and return and other arrangements were put in place whereby the mother collected the children from the place where the father was living with his grandmother, and returned the children to that place. 

5. Matters came to a head when it became apparent that the father was leaving the premises owned by his grandmother, with the children, to take up residence with his new de facto partner.

6. The mother’s reaction upon learning that the father had left, or was about to imminently leave, the grandmother’s premises was to retain the children.  The mother then filed an application seeking final and interim orders.  The father then bought an Application in a Case for return of the children.  The mother then filed an Application in a Case seeking that the children live with her. 

The parties’ applications

1. The mother filed her Initiating Application seeking both final and interim relief on 26 June 2012.  The father filed his Application in a Case seeking return of the children and a location order on 9 July 2012.  The mother’s Application in a Case was filed on 17 July 2012.  The orders sought in her case application, as to interim orders, were similar to, but not in identical terms, with the interim orders sought in her Initiating Application filed 26 June 2012.

The parties’ affidavit material

1. The parties filed and relied upon a number of affidavits.  The mother has filed affidavits of herself, the paternal grandmother, Ms R Short, and the paternal aunt, Ms E Short.  Those affidavits were filed respectively, as to the mother and the paternal grandmother on 17 July 2012, and that of the paternal aunt on 19 July 2012. 

2. The father, for his part, has relied upon his own affidavit, filed on 9 July 2012, simultaneous with the filing of his Application in a Case. 

The evidence before me

1. Today, I have granted leave for his present partner, Ms B to give oral evidence (despite her not having prepared and filed an affidavit in the father’s case).  She gave evidence and was cross-examined.

2. Each of the parties, the paternal grandmother and the paternal aunt have also given limited evidence before me, and were subjected to limited cross-examination. 

3. There is no doubt that there was a violent confrontation between the father and his sister, which resulted, on the father’s own admission, in him striking his sister at least twice. 

4. I understand that the evidence of his sister, the paternal aunt, is that the event was more significant than that.  However, at this stage, it seems to me to be sufficient to note that there was an episode, which the father has indicated resulted in him making at least two slaps or strikes to the face of his sister.  He denies choking her and there seems to be some real dispute as to what happened in respect of that.  The episode occurred on or about the 10^th of May this year, as I understand it.

5. The mother’s evidence, as I understand it, is that she has for some time been frightened of the father, that he was controlling of her and that as a result of his actions towards her in the past, she has lied to police in relation to matters before a Local Court.  However, when cross-examined by Mr White in relation to her reasons for retaining the children, and her concerns, her evidence was not that she feared violence to the children or further violence to herself.  As I understood her evidence, it was because she was worried about how the children would be cared for that she decided to retain the children in the face of an Order. 

6. Her concern, she said, was the care that the father could give the children without family support.  There is no doubt that the father had for some time lived with his grandmother, the great grandmother of the children.  That lady, who is some 80 plus years of age, was assisted from time to time by the father’s mother, to whom I have already made reference as the paternal grandmother, and to some extent by his sister, the paternal aunt.  The full extent of the involvement of these persons in the father’s care of the children have not been thoroughly investigated, nor could they be in a truncated hearing such as this.

7. It appears to me that there is some common ground and the father concedes that he was significantly, and that is my word, assisted by female members of his family in his care of the children.  However, I am not able to be convinced on the material I have heard that he, as it were, delegated all of his responsibilities in respect of the children. 

8. During this period, the mother was seeing the children on an alternate weekend basis in accordance with the Orders, apart from perhaps a period of time when she was in a de facto relationship with a man who was apparently violent towards her.  I am satisfied that relationship is over.  It does appear that during the period of time that that relationship was on foot, there were some difficulties with her seeing the children. 

9. The situation that has now arisen is that the father has moved away from the premises of his grandmother.  More importantly than that, I gather from the material that I have heard and read, that the father’s relationship with his family has, at this stage, come to a most unfortunate and uncomfortable end.

10. The father is now living in premises that he describes in his affidavit.  These premises appear adequate to accommodate him, the subject children, Ms B and one of her children.  He says that he is working on a casual part time basis. It was asserted that at least one of Ms B’s children had in some way been violent to the subject children, but I am not able to determine the extent of that today.  In any event, the evidence appears to be that the child responsible for any such activity is no longer living with Ms B, but is living with that child’s father.  Ms B sees those children on alternate weekends by arrangement.

The issues to be determined

1. The question to be answered therefore appears to be:- are the children to remain with the father in accordance with the current Orders, even though the practical circumstances of his situation have changed, or are the children to be placed with the mother, particularly as a result of the family violence she alleges, which is evidenced by her filing several Notice of Child Abuse or Risk of Family Violence.  A number of the matters to which she refers pre-date the making of the interim Consent Orders in May 2011.  It is argued, with real force by Ms Hanna, that nonetheless they are relevant because they provide a background to what has occurred. 

2. It appears that the matters that have occurred since the making of those Orders are:- an allegation of the father driving erratically and dangerously, and particularly, the assault by the father upon his sister.  The wife further asserts that there have been messages sent that have caused her concern. 

3. While I propose to deal to the various sections and subsections of the Family Law Act 1975 (Cth) to which I must give consideration to, it is clear that the amendments to the Act, which came into force for matters commenced on or after 7 June 2012, place a far greater emphasis on family violence or abuse than was previously the case. The mother’s main thrust, as I understand it, however, is not a concern of violence or harm to the children. In other words, whilst she has made the allegations set out in her affidavit and referred to in her Notice of Child Abuse or Risk of Family Violence, she does not seem to assert, so far as I am aware, that the children would be at any risk of violence being directed towards them, or indeed towards her, if the children continue to reside with the father.

4. The episode with his sister does the father absolutely no credit.  However, it is something that I must consider in the totality of the matters that I am required to take into account. 

The law to be applied

1. The family violence amendments, as I said, are somewhat extensive.  Whereas previously section 60CC(2) postulated two primary considerations to the benefit of a meaningful relationship and the need to protect, there can be no doubt that the amendments now elevate the need to protect children over the need for children to have a meaningful relationship with both parents.  I have no doubt that the assault upon the father’s sister comes within the meaning of family violence, as set out in the new section 4AB of the Act. 

2. Family violence means “violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family ... or causes the family member to be fearful”.  Examples of behaviour that may constitute family violence include, but are not limited to, an assault.  That clearly would catch the episode between the father and his sister in this case.  The question, to my mind though, is whether the fact that such violence is established something that constitutes, as it were, an absolute bar against the perpetrator? 

3. In my view, that is not necessarily so.  As I have said, what needs to be looked at is the totality of the factors, but giving real priority, as the Act requires, to the violence aspect. 

4. I then turn to the section 60CC(3) matters to which I must have regard.  The first relevant consideration is any views expressed by the children (subparagraph (a)).  I have no evidence before me of what the children wish and where they would wish to live.  Having regard to the age of the oldest child, that view may have been of some assistance to me, but on my reading of the affidavit material neither of the parties, nor their witnesses, give me any indication of the children expressing any wish in this regard.

5. The next consideration is the nature of the relationship of the children with each of their parents (subparagraph (b)).  It would seem to me that, regardless of what the mother has asserted, the children do have a close relationship with their father.  He has been, even though it may well be that he has not been the sole carer for them, a more constant figure in their lives than has the mother.  I am satisfied that the mother is not able to say that the reason she has not been as involved in the children’s lives as the father is because of his behaviour towards her.  I am not able to make any finding in that respect. 

6. The next consideration is the willingness and ability of each of the parents to facilitate a close and continuing relationship, which is now overtaken somewhat by the new definition which is the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions and spending time with and communicating with the children and the extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the children (subparagraphs (c) and (ca)).  The facts in this case would again seem to indicate that the father has involved the mother appropriately.  Since the making of the Consent Orders on 26 May 2011, he has facilitated the mother’s time with the children in accordance with those Orders.  The mother has availed herself of the time allocated under those Orders, with some exception.  

7. I am satisfied that, until recently, the manner in which the parties have dealt with each other had the colour of equal shared parental responsibility.  Neither party seems to make any complaint to me that there has been any difficulty in both of them discharging the obligations imposed upon them to participate in the making of decisions concerning long term issues in respect of the children.

8. Subsection (d) refers to the likely effect of changes in the children’s circumstances.  The situation, from the time of the making of the interim Consent Orders until when the mother retained the children, was that the children lived with their father, in the household of his grandmother with the assistance of members of his family.  Whatever order I make today, that situation is not going to be restored.  Accordingly, whatever order I make, there will be some change to the situation for the children.

9. The mother’s proposal is that the children live with her.  She says she should have sole parental responsibility for the children and the father should spend some supervised time with the children. 

10. The father says the children should be returned to live with him and the existing interim Orders should not be interfered with.  On either parties’ proposal, it will mean a change from what the children have known at their great grandmother’s home for a significant period of time. 

11. The mother, as I understand it, presents her case on the basis that the assistance that was previously given to the father when he was a member of his grandmother’s household is now, for all practical purposes, effectively transferred to her.

12. She is in full time employment and that is to her absolute credit.  It seems that she would need and would propose to receive assistance from the paternal grandmother, as well as the paternal aunt, to care for the children. 

13. The father’s case is that the children would be cared for largely by him, but when he was unable to care for the children because of work commitments, the children would be cared for by his partner, Ms B.  Ms B does not work and she would be available, as I understand her evidence, to care for the children at all times when the father was absent.  It is, therefore, clear that both parties are relying on others to assist them in the care of the children in the event the children were to live with them. 

14. I turn to the practical difficulty and expense of a child spending time with and communicating with a parent (subparagraph (e)).  The proposal of the mother for the father to spend supervised time with the children, supervised by members of his family at his grandmother’s home, presents some practical difficulties.

15. It is, to my mind, clear that, for whatever reason, the female members of his family have now parted company with him in a very definite and significant way.  The mother’s proposal that he might spend time with his children under the supervision of his mother in his grandmother’s home, to me, has real practical difficulties.  It would be an uncomfortable and unnatural situation with the dislike that permeates this matter.  Under such circumstances, I am satisfied that the dislike of the father and his mother would be apparent to the children, and not be to their benefit. 

16. As to the capacity of each of the child’s parents (subparagraph (f)), again, each of the parents has the need of some assistance.  The father, in the past, has cared for the children with the assistance of members of his family.  The mother has had the children with her on alternate weekends.  The father, so far as I am concerned, has provided proper accommodation for the children in respect of the premises to which he has moved.  I am satisfied that there is little that I can differentiate between the households of the two parties insofar as their physical presentation.

17. As I say, again, there is the situation of each of the parties requiring assistance and the assistance that was previously available to the father being made available to the mother.  However, I have heard nothing that would indicate to me that Ms B is not a person who can adequately assist the father in caring for the children as required. 

18. So far as the attitude to the children and the responsibilities of parenthood (subparagraph (i)) are concerned, it seems to me that both parents love the children and want the best for them.  It seems to me that the mother has a genuine concern, not that the children will be in some way harmed by the father but that his care of the children simply will not be as good as the care that she can provide with the assistance of members of his family.  

19. I have dealt with the issue of family violence (subparagraph (j)) to the extent that I wish.  Whilst certainly the need to protect is present, I am not satisfied that the need to protect completely overwhelms all other considerations.  Under subsection (k), when looking at a family violence order, I can take into account the nature of the order, the circumstances in which it was made and any evidence admitted in the proceedings.  Clearly, that order relates to the father’s sister.  It is made in a situation that does him no credit, but again and I stress, I am not satisfied that it indicates the children would be at risk if they were to remain with their father. 

1. Those are the matters to which I believe I am required to take note, pursuant to section 60CC of the Act.

2. The next of the matters to which I must have regard is the section that requires me, in all circumstances, to apply a presumption that there should be equal shared parental responsibility.  The mother argues, with some strength, that in this case, the family violence to which I have already made reference, indicates that the section should be found not to apply, as is indeed specified within the section itself, section 61DA(1).

3. In the circumstances of this case, and having regard to the matters I have endeavoured to deal with, I believe that it is appropriate for the parties to continue to have equal shared parental responsibility until this matter can be fully investigated and resolved at a final hearing. 

4. As I have left in place the equal shared parental responsibility finding, it then falls to me to deal with considerations of equal time with each parent or significant and substantial time.  Neither party seeks that there should be equal time.  In my mind, it is also not a case where that would be appropriate.

5. This would involve the children in unnecessary movement between parties and, at this stage, their reaction to such a situation is unknown.  To my mind, the children, therefore, must live with one party and spend time with the other.  The issue of significant and substantial time means that I must take into account a number of factors, including whether or not such an arrangement is practical.  The children presently spend each second weekend with their mother.  It is put, again with some force by Ms Hanna, that I should amend, if I do nothing else, that situation so that the mother spends every weekend with the children.

6. This is put on the basis that the mother provides a position of stability that the father does not.  I find that I am unable to fully understand and appreciate quite what is meant by that submission.  However, I am satisfied that the mother should spend some more time with the children, pending further order, than is presently the case.

7. In the circumstances of this case, I am satisfied the children should remain with the father.  I am satisfied that, in the circumstances of this case, I should however, vary Order 4(a) made on 26 May 2011 in the Federal Magistrates Court to provide that the mother is to spend time with the children for the first two weekends in each three week cycle.  What I will order is this - that the cycle of times, that is, the first two weeks in each three week cycle, will commence on the 27^th of July.  I will order that the mother is to return the children to the father on Sunday the 22^nd of July at 5.00 pm, which is the normal time for return.

8. The effect of the above order will mean that the mother will retain the children until this Sunday night, then will return the children to the father.  The mother will then spend time with the children again from Friday the 27^th to Sunday the 29^th of July, and she will see them again the following weekend, but not the weekend after that.

9. I would ask the parties to consider whether it is appropriate that an Independent Children’s Lawyer be appointed sooner rather than later in this case.

10. I make the orders set out at the forefront of these reasons for Judgment. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 19 July 2012.

Legal Associate:       

Date:    20 September 2012