Petrovic and Petrovic

[2016] FamCA 912

FAMILY COURT OF AUSTRALIA

PETROVIC & PETROVIC [2016] FamCA 912

FAMILY LAW – CHILDREN – Interim parenting – With whom the children live– Assessment of family violence risks posed by the father – Need to protect the children from harm– Nature of the children’s relationships – Capacity to provide for the children’s needs – Best interests of the children – No time with father and restraint on contact – History of contraventions of apprehended domestic violence orders.

Family Law Act 1975 (Cth)ss 60CA,60CC, 61C, 61DA, 65DAC, 68B, 68C

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Kuebler& Kuebler (1978) FLC 90–434
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Petrovic

RESPONDENT: Mr Petrovic

INDEPENDENT CHILDREN’S LAWYER: Crawford Ryan Lawyers

FILE NUMBER: PAC 1425 of 2015

DATE DELIVERED: 31 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Morrison

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carroll

Orders

pending further order

1. The mother have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010 (“the children”).

2. The children live with the mother.

3. The children spend no time with the father.

4. Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is restrained from approaching, contacting or communicating with the children or coming within 500 meters of the children’s home, school or extracurricular activity location:

   (a) IT IS NOTED that the above order 4 pursuant to s 68B of the Act is an injunction made for the personal protection of the children to which s 68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm any of the children, may arrest the father without warrant.

5. Pursuant to s 68B of the Act, the father is restrained from approaching, contacting or communicating with the mother or coming within 500 meters of the mother’s home or place of employment:

   (a) IT IS NOTED that the above order 5 pursuant to s 68B of the Family Law Act 1975 is an injunction made for the personal protection of the mother to which s 68C of the Act would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm the mother, may arrest the father without warrant.

6. The mother may travel outside the Commonwealth of Australia with each of the children with such travel to occur between 30 December 2016 and 9 January 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1425  of 2015

Ms Petrovic

Applicant

And

Mr Petrovic

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are engaged in property and parenting proceedings following the breakdown of their 15 year relationship. The parenting proceedings relate to the parties’ three sons, who are almost 14, 11 and six and a half.

2. For some time following separation the children spent time with their father as agreed between the parties. The father was then charged with and found guilty of a number of offences including an assault perpetrated by him against the mother and damaging her property.

3. The father also contravened apprehended violence orders made for the protection of the mother and was sentenced to imprisonment on more than one occasion.

4. Following his release from custody the father sought interim parenting orders that he spend time with the children. The mother opposes the father’s application and seeks orders that she have sole parental responsibility for the children, that the father spend no time with them, and that the father be restrained from any contact with herself or the children.  She also seeks permission to take the children on an overseas holiday.

5. This judgment deals with the competing interim parenting applications.

Background

1. The parties who are both 41 began a relationship in 1993. They began living together in 1996 and married in 2002.

2. The parties’ eldest boy was born in 2002 and is almost 14.

3. A second son, who is currently 11, was born in 2005.

4. The mother contends that the father was violent towards her throughout almost the entirety of the relationship. Although it is not entirely clear, I understand that the father denies that he was violent or at least to the extent contended for by the mother.

5. The parties’ third son was born in 2010 and is currently six and a half.

6. In October 2011, the parties separated on a final basis, and the mother took the children to live with her in a women’s refuge for some time.

7. From November 2011 the children continued to live with the mother and spend around one night per week with their father under an informal verbal agreement between the parents.

8. In May 2012, the father was charged with assaulting the mother, and three counts of damaging property and was subsequently convicted of these offences.

9. In June 2013 an apprehended domestic violence order (ADVO) was made against the father for the protection of the mother following a violent incident at the mother’s home.

10. In December 2014 the father was charged with further offences (for which he was subsequently convicted and sentenced to a prison term) following a violent incident in the presence of the children. The father was taken into custody and bail was refused and an ADVO was issued against him for the protection of the mother.

11. A few days after the ADVO was made the father was arrested for contravening the order. He was subsequently convicted and sentenced to a term of imprisonment of six months.

12. On 11 December 2014 a final ADVO was made against the father for a period of two years for the protection of the mother. This ADVO that prohibits the father coming into contact with the mother and children and is due to expire in 11 December 2016.

13. On 1 April 2015 the mother commenced the current parenting proceedings at a time when the father was in custody.  A few weeks later the father was released from custody.  Following a further contravention of the ADVO the father was sentenced to a further six months imprisonment.

14. In September 2015 the mother filed an Amended Initiating Application seeking restraints upon the father from coming into contact by any means with her and the children on an interim and final basis.

15. In January 2016 the father filed a Response seeking final orders and interim orders for an approximately shared care arrangement.

16. On 7 June 2016 a family consultant interviewed the family as part of the Child Responsive Program.

17. An independent children’s lawyer (ICL) was subsequently appointed and on 12 October, the same day as the interim parenting proceedings, orders were made for the appointment of a psychiatrist for an assessment of the father’s psychological functioning and mental health.

The Contested facts

1. In addition to the uncontested facts, in accordance with Full Court authority, the Court may have some regard to the matters in dispute.  In SS & AH[1], their Honours said at [100]:

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

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. It was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. The mother contends that she has been the victim of significant family violence perpetrated against her throughout almost the entirety of the relationship with the father, often in the presence of the children after they were born.  Although the mother sets out details of many specific instances of the father’s violence between 1995 and December 2014 in her affidavit the father does not address any of these specific incidents in his affidavit. It appears however, that he only concedes that the personal difficulties between himself and the mother were limited to bitter arguments.  In his most recent affidavit the father also makes the broad statement that he “dispute[s] the other points not supported by the evidence” which would seem to suggest that he may take issue with the contentions about the extent of his violence.

5. In assessing the probability of the mother’s allegations concerning the father’s significant violence, I am of the view that it is likely that her version of events will be found proved at the final hearing for the following reasons. First, there is no dispute that the father has a significant history of assault, damaging property at the family home and breaching ADVOs and has served terms of imprisonment in relation to his conduct. The mother’s version of events which led to him being charged, are consistent with the court records in relation to those offences to which the father either pleaded guilty or was found guilty following hearing.

6. Further, in relation to some of the other particular incidents there is other evidence which in my view is reliable, consistent with the mother’s version of events. For example, the mother’s version of events in December 2014 in which she alleges that the father forced his way into the home and grabbed her by the throat in the presence of the children contains a number of specific details, which were also reported by her at the time the events were occurring in the course of a 000 call. The transcript of that call is consistent with the mother being the victim of the father’s frightening and violent conduct in her own home as she asserts in her affidavit.

7. Although a number of the incidents of violence outlined by the mother did not result in the father being charged or convicted of an offence, police records are consistent with the mother having made complaints on a number of occasions about the father’s violence since around May 2010.  The records also indicate that the mother expressed fears about the father’s reaction if she reported the matter to police or sought to have the father charged.

8. Further, the mother’s evidence about the father’s behaviour since separation, and in particular in breaching bail and ADVOs, as set out in her affidavit is consistent with the father’s own affidavits. It is the mother’s contention that the contraventions have occurred as the father remains obsessed with her and continues to seek a relationship with her. 

9. In his affidavit of 19 August 2016, the father states “I hope in time, [Ms Petrovic] and I can get back together” and says “to fix my relationship with [Ms Petrovic] is a long-term goal”.  The father also told the Family Consultant that the ideal scenario for the children’s parenting arrangements would be for he and the mother to reconcile.  In the course of submissions at the interim hearing the father raised the possibility of the mother wanting marriage counselling.

10. The mother also contends that on occasions the father perpetrated physical abuse and violence against the children and sets out a number of specific incidents in her affidavit. These incidents are specifically denied by the father. The mother does not claim to have personally witnessed these assaults, but relies upon complaints made by the eldest child in particular about physical assaults perpetrated by the father and the children’s fear of the father observed by herself and staff at the children’s school.

11. The father takes issue with these observations about the children’s fear of him and claims that he and the children have a close, loving and caring relationship.  So far as weighing the probabilities of abuse of the children is concerned I attach some weight to the disclosures made by the children in the interviews with a Family Consultant as part of the Child Responsive Program. 

12. The Memorandum prepared by the Family Consultant records that each of the children reported the father’s physical abuse.  B is recorded as reporting that the father gave him “a few pushes” or a “slap” as discipline and claimed that he would prefer to “take a hit” as punishment.  C reported that the father slapped him and his siblings in the face at times for doing “the smallest thing wrong”.  D stated that the father “kept pulling my ear” and also reported the father had kicked him and slapped him on the back and face.  In my view, it is likely on the available evidence that the father will be found to have used inappropriate and excessive physical discipline towards the children at times.

13. So far as the need to protect the children from exposure to family violence in the future is concerned, in my view, there are significant risks on the evidence.  Despite the parties having separated in October 2011, the father has continued to indicate that he wishes to reconcile with the mother.  There are statements in his affidavit to this effect and the father expressed similar sentiments to the Family Consultant and in his submissions in the interim application.  The father’s repeated contraventions of the ADVO, although not involving acts of violence towards the mother, show the father’s struggle with compliance with any order that requires that he have no contact with the mother.  I accept the submission made on behalf of the mother that he seems to be unable or unwilling to come to terms with the breakdown of the relationship.  This was also noted in the Child Responsive Program Memorandum. 

14. The mother also relies upon a breach of parole report produced on subpoena in relation to the father’s attitude towards engaging in domestic violence prevention interventions.  It is recorded in a Breach of Parole Report prepared by his Community Corrections Officer that during interviews on a number of occasions in May 2015, the father indicated that domestic violence intervention “would not serve a purpose”, nor would he engage in it if directed to attend.

15. On the evidence available at the interim hearing, I am of the view that there is a real risk that the father will continue to attempt to contact the mother unless he is restrained by court order against making such contact.  In my view this contact is likely to give rise to conflict at the least and may give rise to other acts of family. 

16. The ADVO which is in broad terms is due to expire in December 2016.  If the restraints sought by the mother are not in place, I am of the view that there is a real likelihood that the mother will be placed at risk of violence perpetrated by the father to which the children may be exposed.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:

   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.

3. The principles underlying these objects include:

   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).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  Although these proceedings have been on foot since April 2015 and it appears to have been almost two years since the father has spent time with the children, the parenting proceedings have not progressed in any significant manner.  This is due to a large extent to the father having spent time in custody and having been unable to exercise the time he has sought to spend with his children even if such orders were made. 

6. On 12 October 2016 orders were made for the appointment of an expert psychiatrist but appointments for interview are not available until mid-2017.  In these circumstances the interim orders currently under consideration will be in place for at least eight months prior to the release of the expert’s report and may be in place for up to a year pending final hearing having regard to the current delays in this Registry.

Parental responsibility

1. The mother seeks sole parental responsibility for the children on an interim basis and the father does not seek any order with respect to this matter.

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the children. 

3. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

1. Under s 61DA(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.

2. The presumption does not apply if:

   ·there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)); or

   ·when the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

3. As there are more than reasonable grounds to believe that the father has engaged in family violence the presumption does not apply.

4. So far as the orders sought by each of the parents are concerned, the Court must make such orders as are in the best interests of the children as a result of the consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in subsection (2), are:

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

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

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the protection of the children from harm than to the benefit of having a meaningful relationship with both parents.

The benefit of a meaningful relationship with both parents

1. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

2. Under the proposed orders of the mother and the proposal of the ICL, on an interim basis there would be no capacity for the children to share a meaningful relationship with their father as he would spend no time with him them and he would be restrained from having any contact with them. 

3. The father’s proposed orders which amount to the children spending substantial and significant time with him would support such a relationship.

4. This consideration has not been interpreted as creating a presumption that there is a benefit to a child in having a meaningful relationship with each of his parents.  Rather, the focus of the consideration is on the question of whether there is a benefit to the child in having a meaningful relationship with each parent. 

5. In circumstances where the father has spent no time with the children for almost two years and there are clearly significant issues in relation to risks associated with the father, I am unable on an interim basis to make a finding that there is a benefit to the children in having a meaningful relationship with their father.  This is especially so, as I have no expert evidence relating to the father’s psychological functioning.

The need to protect the children from physical or psychological harm

1. It is central to the mother’s proposal that there be an order that the father spend no time with the children and that he be restrained from coming into contact with them by any means, that there is a significant need to protect them from psychological harm from being exposed to family violence and subjected to abuse.

2. There is no dispute that the father has behaved violently towards the mother in the presence of the children in those instances which have led to the father being convicted of assault and damage to property.  There is also no dispute that the father has contravened ADVOs and bail conditions put in place for the protection of the mother.

3. For the reasons previously given, I am satisfied that the father’s violent conduct against the mother extends beyond those instances which have resulted in his arrest and conviction and it is likely that the mother has been the victim of violence perpetrated by the father over many years to which the children have been exposed.

4. For the reasons given, it is also likely that the children have been the victims of the father’s abuse perpetrated against them.  In these circumstances the need to protect the children from physical or psychological harm looms large.

5. The Family Consultant is of the opinion that there are concerns that the father “has behaved towards the children in a manner that could be considered abusive”.  She recommends that if the Court is minded to order that the father spend time with the children on an interim basis that this occur at a contact centre.  There is no proposal for supervised contact and the father seeks orders that his time commence immediately and include extensive overnight time, almost amounting to shared care.

The additional consideration: s 60CC(3)

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

Any views expressed by the children

1. The Child Responsive Program Memorandum includes the views of the children as expressed to the Family Consultant. 

2. The eldest child who was 13 and a half when interviewed said he would be “happy” if it was decided that he should spend time with his father. 

3. The middle son said that he enjoyed living with his mother and spending no time with his father.  He stated that he “hated” his father “in every way” and would be “devastated” if orders were made that he should spend time with his father.  This child was 10 and a half when he expressed this view. 

4. The youngest child who was six when interviewed said that he does not really like his father and would feel “a bit angry” if it were determined that he should spend time with his father.

5. Although in my view some weight should be attached to the views of the older two children having regard their age, in circumstances where the most weighty consideration is the need to protect the children from harm, their views are overall, a less weighty consideration.

The nature of the relationship of the children with each of their parents

1. As the mother has been the primary carer of each of the children since birth and their sole carer for the past two years, it can be assumed that they have a close attachment relationship with her.

2. Although the father makes assertions about the children’s close and positive relationship with him, this has not been assessed by an expert.  Having said that, the eldest child expressed some positive views about his father to the Family Consultant while the younger two boys expressed negative views.  This is consistent with the mother’s opinion that the eldest child is favoured by the father which has caused some tension in the relationship between the siblings.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children

1. An ADVO has been in place since December 2014 restraining the father from coming into contact with the mother and children.  In these circumstances the father has not been given the opportunity to participate in decision making, spend time with or communicate with the children.  Since these proceedings have been initiated, the father has consistently sought to involve himself in the children’s lives.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. The children have been in the sole care of the mother since separation and she has entirely supported them without financial support from the father.  This has included the mother renting accommodation for herself and the children and until very recently the father has continued to live in the family home.

Likely effect of any change in the children’s circumstances

1. The orders proposed by the mother will not bring about any change in the children’s circumstances as they will continue to live with her and spend no time with their father.  The father will also continue to be restrained from making contact with the mother and children in a similar fashion to the restraints imposed by the current ADVO.

2. An order providing for the children to spend time with their father under his proposal would bring about a significant change in the children’s circumstances.  The father proposes that the children live with him each weekend from Friday after school until Sunday afternoon and that each child alone also spend an additional midweek night with him each week, and another midweek night with him on a rotating three week cycle.  The practical effect of this proposal is that the children would be separated from their mother three to four nights each week and on one to two nights each week the children would be separated from each other. 

3. In circumstances where the children have not spent time with their father for almost two years and the two youngest children express concern about spending any time with the father, it is likely in my view, that the separation from their primary carer would have a significant deleterious impact upon the children.  The youngest child in particular, who is only six, is likely to be particularly adversely affected. 

Practical difficulty and expense of a child spending time with and communicating with a parent

1. There is no particular expense associated with the father’s proposal, though in my view, there may be practical difficulties associated with the complex regime of midweek time that the father proposes.  However, in circumstances where the most weighty consideration relates to protection of the children from harm and the father’s capacity, this consideration is not weighty.

Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs

Attitude to the children and responsibilities of parenthood

1. Although there has not been an expert assessment of the mother’s capacity, she has demonstrated that she is a capable parent who has adequately met the children’s needs over the last two years when she has been solely responsible for their care. 

2. The father does not raise issues with the mother’s capacity in a general sense, though he expresses concern about the mother’s proposal that she be permitted to take the children on a cruise.  The father contends that the eldest child “can’t be controlled” and that the mother will also be unlikely to exercise control over the second child’s behaviour.  In my view, there is nothing particularly concerning about the environment of a holiday cruise ship that would suggest that the mother needs special skills in this setting to control the management of the children when she otherwise appears to be a capable parent.

3. The father’s capacity to care for the children under his proposal is untested.  As I understand it, he previously had care of the children for single nights only where as he now proposes almost shared care. 

4. The Family Consultant expressed concerns about the father’s previous conduct which may be considered “abusive” and his overall psychological wellbeing.

5. I am also concerned that the father has limited insight into the impact of exposure to family violence upon the psychological wellbeing of his children.  Despite his convictions and having served terms of imprisonment, he maintains that his sons have not been adversely affected. 

6. The father’s current living arrangements are unknown and it appears that he has limited income which also raises questions about his capacity to meet the day to day needs of the children.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. The father sets out in his affidavit his personal history and some aspects of his beliefs and lifestyle.  He places particular emphasis on the importance of sporting skills to himself and his sons.  There is no evidence of any traditions associated with either parent’s culture or ethnic heritage.

Family violence & family violence orders

1. Family violence is a weighty factor in this interim application.  For the reasons given, I am satisfied that the father has perpetrated family violence towards the mother for many years to which the children have been exposed.  I am also satisfied that he has perpetrated abuse against the children.  Family violence was also considered with reference to the father’s parental capacity, the children’s relationship with their father and the need to protect the children from physical and psychological harm from being subjected to abuse and exposed to family violence.

2. As previously noted there have been a number of ADVOs made for the protection of the mother and the children against the father.  The father has also been convicted of charges of contravening the most recent ADVO which is due to expire in December 2016.

3. While it may have been expected that the history of ADVOs and their contravention by the father may have grounded an extension of the protection provided by those orders, it appears that that has not occurred.  In my view, the mother and children should be afforded the same level of protection as is provided under the current ADVO when it expires, particularly where it appears that the father still holds some hope for reconciliation between himself and the mother and holds an idealised view of the family.

Whether it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. There is a small difference in the orders proposed by the mother and ICL respectively.  The mother seeks an order that the father spend no time with the children while the ICL seeks that there be no order for the father’s time pending release of the expert’s report (in mid 2017).  The ICL’s proposal envisages an additional interim hearing with respect to the father’s time.

Any other fact or circumstances the Court thinks relevant

1. As noted, the mother seeks an order that she be permitted to travel with the children on a cruise to New Zealand for ten days from 30 December 2016.  In Kuebler& Kuebler[6], the Full Court set out factors to be taken into account in an application of this type. 

   [6] (1978) FLC 90–434

2. Having regard to those factors, I note the short and specified period of travel proposed by the mother and the fact that the travel will not involve the children being deprived of time with the other parent (as this is not occurring).  I also consider that the travel is to a safe destination and note the mother’s significant ties to Australia (including unresolved property proceedings) and that New Zealand is also a party to the Hague convention.

3. For those reasons, I am satisfied that there are no risks that the mother will not return from this proposed travel. 

Summary and Conclusion

1. The mother played the primary role as the children’s carer until the parties separated.  Thereafter the father spent some fairly limited time with the children as agreed between the parents.  This was brought to an end when the father was charged (and later convicted) of assaulting the mother and damaging her property.  For the reasons given, I am of the view that it is likely that his conduct formed part of a pattern of similar conduct occurring over a number of years.

2. Despite various measures put in place to control the father’s conduct including bail conditions and an ADVO, the father contravened these orders and persisted in an attempt to at least contact the mother and in a desire to reconcile with her.  Ultimately an order was put in place restraining the father from having any contact with the mother and children from December 2014.  In my view, this level of protection is appropriate and a similar level of protection should continue to apply. 

3. Having regard to the considerations with respect to the best interests of the children and giving weight to particular considerations for the reasons given, I am of the view that it is in the best interests of the children for interim orders to be made as proposed by the mother.

4. In coming to my view about the interim orders, I have had regard to the proposal of the ICL who supported all of the orders proposed by the mother with the exception of the father’s time with the children.  The ICL proposed that there be no order for the father’s time until after consideration by the expert.  In my view, having regard to the history of the matter and in particular the father’s attitude towards the ADVO, it is in the children’s best interests for it to be clearly stated that it is not in the children’s best interest at this stage to have time with their father rather than be silent as to that matter.  For the reasons given, I make the orders as set out in the forefront of this Judgment.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on

31 October 2016.

Associate: 

Date:  31 October 2016