Ruzic & Jelenich and Jelenich - [2009] FMCAfam 896

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUZIC & JELENICH and JELENICH

[2009] FMCAfam 896

FAMILY LAW – Parenting – interim orders – time to be spent with.

Family Law Act 1975, ss.60CA, 60CC & 61DA

B & B (1993) FLC 92-357 (sub-nom Bieganski)
B & O & M [2005] FMCAfam 379
C & J [1996] FamCA 86
Elspeth & Peter [2006] FamCA 1385
Goode & Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713
Murphy & Murphy [2007] FamCA 795
R & R: Children’s Wishes (2000) FLC 93-1000

Applicant:

MR RUZIC

First Respondent:

MS L. JELENICH

Second Respondent:

MS G. JELENICH

File Number:

SYC5902/2007

Judgment of:

Kemp FM

Hearing dates:

5, 6 & 7 August 2009

Date of Last Submission:

7 August 2009

Delivered at:

Sydney

Delivered on:

25 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms Falloon

Solicitors for the Applicant:

Ross Clarke

Counsel for the First Respondent:

Ms Conte-Mills

Solicitors for the First Respondent:

Phillip A Wilkins & Associates

Counsel for the Second Respondent:

Mr Foster

Solicitors for the Second Respondent:

Valenti & Valenti

Counsel for the Independent Children’s Lawyer:

Ms Leis

Solicitors for the Independent Children’s Lawyer:

Kathryn Renshall

THE COURT ORDERS AND PENDING FURTHER ORDER:

That all previous orders are discharged.
That the father have sole parental responsibility for the children [X] (“[X]”) born in 1992, [Y] (“[Y]”) born in 1994 and [Z] (“[Z]”) born in 2000 (“the children”).
The father shall not discourage [X] and [Y] from spending time with the mother or the maternal grandmother or otherwise communicating with the mother or the maternal grandmother in accordance with their wishes.
That the child [Z] live with the father and spend time with the maternal grandmother and the mother as follows:
(a) With the maternal grandmother:
(i)for a period of three months from the date of these orders on one Sunday (“the contact Sunday”) per month from 10am to 6pm, but in the event that [Z] is involved in any extra curricular or social activities on any contact Sunday then such time is to be spent with [Z] on the Saturday immediately prior to the contact Sunday;
(ii)thereafter, the contact Sunday will be every second Sunday from 10am to 6pm, but in the event that [Z] is involved in any extra curricular or social activities on any contact Sunday then such time is to be spent with [Z] on the Saturday immediately prior to the contact Sunday;
(iii)on an additional 2 days during each of [Z]’s school holiday period on dates to be arranged by agreement between the father and the maternal grandmother such to include overnight contact if agreed;
(iv)on 7 January each year from 10am to 6pm;
(v)at any other times by agreement between the father and the maternal grandmother.
(b) With the mother:
(i)at any time during which the maternal grandmother spends time pursuant to 4(a) above, but not to include overnight time under 4(a)(iii) above;
(ii)that the mother’s time with [Z] in accordance with 4(b)(i) above be supervised by Ms H and the maternal grandmother is to ensure that the said Ms H is present to so supervise;
(iii)at any other times by agreement between the father and the mother.
That order 4(b) is conditional upon Ms H being available to supervise in accordance with her undertakings to the Court, in the form of Schedule A to these orders.
That order 4(a)(i) shall commence on the second Sunday following the date of these orders.
That [Z] spend telephone time with the maternal grandmother and the mother as follows:
(a)         With the maternal grandmother:
(i)on one day per week, as agreed between the parties but not being the day of the mother’s telephone time, and failing agreement then on Thursday between the hours of 6.30pm and 7.30pm; and
(ii)at any other reasonable time in accordance with [Z]’s wishes.
(b)        With the mother:
(i)on one day per week, as agreed between the parties, but failing agreement, on Tuesday between the hours of 6.30pm and 7.30pm and supervised by the maternal grandmother.
When [Z] is spending time with her, including in telephone communications, the maternal grandmother shall not:
(a)permit the mother to have any form of contact with [Z], other than in accordance with these orders and the undertakings of Ms H;
(b)provide to the mother any telephone number for the father or otherwise for [Z];
(c)ask [Z] to provide any telephone numbers to the maternal grandmother or the mother;
(d)initiate any discussions with [Z] about the circumstances of the mother;
(e)discuss the relationship of the mother and father with [Z];
(f)speak to [Z] about the father in a critical or derogatory manner;
(g)permit [Z] to have contact with Mr R:
(i) without express prior notice to the father; and
(ii)unless [Z] is accompanied by either [Y] or [X] or Ms H.
(h)permit or require [Z] to have any form of contact with the mother’s partner or former partner S (also known as “S”);
(i)prevent [Z] from contacting the father by telephone.
When [Z] is spending time with the mother, she shall not:
(a)spend time with [Z], or seek to spend time with [Z], other than in accordance with these orders and the undertakings of Ms H;
(b)ask the maternal grandmother to provide any telephone number for the father, or otherwise for [Z];
(c)ask [Z] to provide any telephone numbers;
(d)initiate any discussions with [Z] about her own circumstances or the circumstances of the father;
(e)discuss with [Z] the relationship between the mother and father;
(f)speak about the father in a critical or derogatory manner in the presence or hearing of [Z];
(g)permit or require [Z] to have any form of contact with any partner or former partner of hers other than the father;
(h)prevent [Z] from contacting the father by telephone;
(i)physically or verbally abuse or threaten [Z] or administer any form of corporal punishment.
That the father is to provide to the mother a landline telephone number so as to facilitate telephone communication between the mother and [Z] and to notify the mother of any change of number within (3) days of such change
For the purposes of order 4, and unless otherwise agreed between the father and the maternal grandmother , the father shall take [Z] to meet the maternal grandmother or Ms H at [omitted] railway station and shall collect [Z] from the maternal grandmother or Ms H at that station.
Except as provided by Order 4, the mother shall not be present at any place or premises where [Z] is, or approach within 200 metres of any such place, including but not limited to the residence of the father.
The maternal grandmother is at liberty to contact the father on his mobile telephone number [omitted] for the purpose of making arrangements for [Z] to spend time with her pursuant to order 4, and the father shall immediately advise the maternal grandmother of any change to his mobile telephone number.
The maternal grandmother shall not be in breach of these orders if, due to ill health or other reasonable cause, she is unable to spend time with [Z].
The father shall not:
(a) discuss the mother’s circumstances with [Z];
(b)discuss the relationship of the mother and father with [Z];
(c)speak to [Z] or in his presence about the maternal grandmother or the mother in a derogatory or critical manner;
(d)prevent [Z] from contacting the maternal grandmother or the mother by telephone at any reasonable time.
The father shall arrange for [Z] to attend the wedding of Mr M in October 2009 as well as any related obligatory event such as rehearsals or suit hire or fittings, provided that the mother will only be permitted to spend time there with [Z] if either one or both of [X] and [Y] are present at the time.
Liberty to the parties or the Independent Children’s Lawyer to restore the matter on 3 days notice.
That the mother undergo a psychiatric assessment.
That the mother enrol in and complete an anger management course.
That the father provide to the mother copies of [Z] and [Y]’s school reports.
That the father inform the maternal grandmother by telephone of any major medical emergency, hospitalisation or illness that [Z] be involved in or suffer.
That the father provide to the maternal grandmother forthwith the current mobile phone numbers of [X] and [Y] and further that he provide an alternate or other mobile phone number of [X] or [Y] within 48 hours of him becoming aware of such alternative or other phone number.
That the maternal grandmother and the father shall forthwith exchange details of their mobile phone numbers (and landline so as to facilitate telephone communication between the mother and [Z]) and addresses and shall keep each other informed as to any changes thereof within 48 hours of such change.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
That the matter be relisted for mention on 1 December 2009 at 9.30am.

NOTATIONS

A. The father will encourage [X] and [Y] to attend the grandmother’s home at the same time as [Z] is visiting there.

IT IS NOTED that publication of this judgment under the pseudonym Ruzic & Jelenich and Jelenich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

SCHEDULE A

UNDERTAKINGS BY MS H

I, MS H, of Property S, New South Wales, give the following undertakings to the Court in these proceedings:

1. I will be present as supervisor at all times when the child [Z] (“[Z]”) is spending time with the mother MS L. JELENICH (“Ms L. Jelenich”) at the home of MS G. JELENICH (“Ms G. Jelenich”) in accordance with Orders made by the Court in these proceedings on 7 August 2009.
2. I will at all times carry out my role as supervisor taking into account only the safety and welfare of [Z], and putting above all other considerations the protection of [Z] from any form of abuse, including physical or verbal abuse.
3. I will not allow my friendship with either Ms G. Jelenich or Ms L. Jelenich to influence the decisions I should make and/or the actions I should take for the protection of [Z] while I am supervising his time with the mother and the maternal grandmother.
4. I will remain in the presence of [Z] and the mother at all times while they are together.
5. I will not permit the mother to spend any time alone with [Z].
6. If it is proposed that [Z] will leave Ms G. Jelenich’s home with Ms L. Jelenich in order for them to spend time together outside the home, then I will accompany them and keep [Z] within my sight at all times.
7. If Ms L. Jelenich behaves in any way that I believe to represent a risk to [Z], either physically or emotionally, then I will immediately remove [Z] from Ms L. Jelenich’s presence and immediately telephone the father MR RUZIC (“Mr Ruzic”) and tell him about the action I have taken and why I have taken that action.
8. If I am unable to contact [Mr Ruzic] I will telephone the police and ask them to assist me in removing [Z] to a safe place.
9. At all times while supervising [Z] I will keep with me a copy of these undertakings and a copy of the Orders.

DELETED.
If I am unable to supervise [Z]’s time with Ms L. Jelenich on any occasion, including the wedding of Mr M, I will tell Mr Ruzic and Ms G. Jelenich.

These undertakings were read to me by a solicitor before I signed them.
I understand what I am required to do as supervisor.
I understand that in giving these undertakings I am making a solemn promise to the Court for the protection and welfare of [Z].

Signed……………………………………………………………..
MS H

Witness…………………………………………………………..
SOLICITOR/BARRISTER

Date………………………………………………

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC5902 OF 2007

MR RUZIC

Applicant

And

MS L. JELENICH

First Respondent

MS G. JELENICH

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Application filed 21 August 2007 and as amended by an updated minute of proposed order, being Exhibit “A1”, the father sought certain parenting orders in respect of the children of the relationship, [X] (“[X]”) born in 1992, [Y] (“[Y]”) born in 1994 and [Z] (“[Z]”) born in 2000 (“the children”).
The Respondent mother in her Response filed 14 April 2009, and as amended by an updated minute of proposed order, being Exhibit “M3”, sought her own parenting orders.
The Respondent maternal grandmother in her Response filed 26 March 2009, and as amended by an updated minute of proposed order, being Exhibit “MG3” sought her own parenting orders.
On 21 April 2009, this Court made the following orders by consent and where noted “without admission” and pending further order:
1.   The children shall spend time with and communicate with the maternal grandmother commencing on 26 April 2009, as follows:
(a) on the last Sunday in each calendar month (unless a different day is agreed), between 10am and 6pm, such hours to be subject to the wishes of [X] and [Y]; and
(b) at such additional times as may be agreed between the father, the maternal grandmother and the children; and
(c) by telephone at any reasonable time in accordance with the wishes of the children.
2.   During any time the children or any of them spend with her, the maternal grandmother shall not:
(a) permit the mother to have any form of contact with the children or any of them, including but not limited to face-to-face contact, telephone contact and contact by way of electronic or written communication;
(b) permit the mother to be present at any place or premises where the children are spending time with the maternal grandmother;
(c) herself communicate with the mother while the children are spending time with the maternal grandmother;
(d) provide to the mother any telephone number for the father or the children;
(e) ask the children to provide their mobile telephone numbers to the maternal grandmother or the mother;
(f) initiate any discussions about the circumstances of the mother with the children;
(g) discuss the relationship of the mother and father with the children;
(h) speak to the children about the father in a critical or derogatory manner;
(i)   permit any of the children to have contact with Mr R:
(i)without express prior notice to the father;   and
(ii)unless, in the case of [Z], he is accompanied by either [Y] or [X];      and;
(iii)unless she has used her best endeavours and done all things reasonably necessary on her part to ensure that Mr R does not touch the children’s genitalia.
(j) permit the children to have any form of contact with the mother’s partner or former partner Slugden;
(k) prevent the children from contacting the father by telephone.
3.   The father shall not be in breach of Order 1 if:
(a) a sporting commitment or any other commitment of the children conflicts with that order, but in the event of there being such conflicting arrangements, the father shall use his best endeavours, in consultation with the maternal grandmother and the children, to arrange for them to spend alternative time with the maternal grandmother; or
(b) the maternal grandmother has breached order 2.
4.   Order 1 is conditional upon all of the children being available to spend time with the maternal grandmother together, unless it is the express wish of [X] and/or [Y] that they spend time with the maternal grandmother in the absence of [Z].
5.   For the purposes of order 1, and unless otherwise agreed between the parties, the father shall take the children to meet the maternal grandmother at [omitted] railway station and shall collect the children from the maternal grandmother at that station.
6.   The father may facilitate contact between the children and the maternal step-grandfather Mr R (“Mr R”) provided that:
(i) [Z] is not to have contact with Mr R without one or both of [X] and [Y] also being present; and
(ii)     the father has used his best endeavours and done all things reasonably     necessary on his part to ensure that Mr R does not touch the children’s genitalia.
7.   The mother shall not (without admissions):
a. be present at any place or premises where the children are, including but not limited to the residence of the maternal grandmother;
b. [not made]
8. The maternal grandmother is at liberty to contact the father on his mobile     telephone number [omitted] for the purpose of making arrangements for the children to spend time with her pursuant to order 1, and the father shall immediately advise the maternal grandmother of any change to his mobile telephone number.
9. The maternal grandmother shall not be in breach of these orders if, due to ill health or other reasonable cause, she is unable to spend time with the children.
10. The maternal grandmother shall promptly advise the Independent Children’s Lawyer if she becomes aware during the time the children are spending with her that the mother has spent any time with the children or communicated with them or attempted to communicate with them.
11. The father shall not:
(i)discuss the mother’s circumstances with the children;
(ii)discuss the relationship of the mother and father with the children;
(iii)speak to the children about the maternal grandmother or the mother in a derogatory or critical manner;
(iv)prevent the children from contacting the maternal grandmother by telephone at any reasonable time.
12. The father shall do all things reasonably necessary on his part to facilitate and encourage contact between the maternal grandmother and the children in accordance with these orders.
13. Orders made on 21 May 2008 are discharged.
14. Liberty to the parties or the Independent Children’s Lawyer to restore the matter on 3 days notice.
NOTATION
A. The matter is listed on 5, 6 and 7 August 2009 for hearing as to the applications of the father, the mother and the maternal grandmother.
B. Orders 2 and 11 are made without admissions.
Family Reports were released to the parties on 1 April 2009 by Ms Natalie Glaser (Exhibit “ICL2”) and on 9 July 2009 and 17 July 2009 by Ms Kalli Tsiotsioras (Exhibit “ICL1”). At the time of the preparation of Ms Glaser’s report, the mother was incarcerated and was not formally interviewed by Ms Glaser. Her report concentrated on issues then in dispute between the father and the maternal grandmother. Ms Tsiotsioras’ report was produced after the mother had been released from detention and she was interviewed by the said consultant.
On 5 September 2007, the Court appointed an Independent Children’s Lawyer to represent the interests of the children.
On the hearing, Ms Falloon of Counsel appeared for the father,

Ms Conte-Mills of Counsel appeared for the mother and Mr Foster of Counsel appeared for the maternal grandmother. Ms Leis of Counsel appeared for the Independent Children’s Lawyer.
When the proceedings came on for final hearing, given the recommendations of Ms Tsiotsioras, it became apparent to all parties that the matter had to be dealt with by way of interim relief only.
Given Ms Tsiotsioras’ recommendations involved, inter alia, the mother undergoing a psychiatric assessment, the children being referred to the Holy Oake program for counselling and support and a further report being conducted to assess the mother’s progress in approximately one year’s time, which in turn required a lengthy adjournment before a final hearing could be scheduled, the Court determined that, while it would principally deal with the matter on the papers, it would allow the parties an opportunity of hearing from and questioning Ms Tsiotsioras and in light of certain matters arising from that, the Court gave further leave for limited oral evidence to be taken from the maternal grandmother as to her qualifications to supervise the mother’s time and further evidence from a friend of the maternal grandmother’s, Ms H, as to her qualifications and ability to so supervise.

Accordingly, as the matter proceeded it also became apparent that the parties had reached substantial agreement as to a number of parenting orders to take the matter forward on an interim stage, although there was some disagreement as to the drafting of particular terms to reflect that agreement. The Independent Children’s Lawyer substantially adopted the father’s proposal. The mother also substantially agreed to a number of orders in the father’s proposal, but sought other orders and the maternal grandmother proposed her own orders, albeit with agreement to some extent of either the mother or the father, but with respect to specific and different terms.
Principally, the parties agreed that in the case of the two older children, no parenting orders would be made, save that the father would continue to have sole parental responsibility for them, together with [Z] and that all three children would live with him. The mother and the maternal grandmother could spend time with [X] and [Y] in accordance with their wishes. There was no need, given their ages and maturity for their time with the mother to be supervised. Further, the father agreed to an order that he would not discourage [X] and [Y] from spending such time or otherwise communicating with the mother and the maternal grandmother. Accordingly, orders 1, 2 and 3 of Exhibit “A1” will be made by consent.
Further, Exhibit “A1” provided a number of other orders and notations which all the parties agreed to (or if not consented to were specifically not opposed on the basis that they did not affect a party) and those orders will be made. Those orders are specifically orders 7 (which will be incorporated as order 7(a)(ii)), 8(a), (b), (c), (d), (e), (f), (h), and (i), 9(a), (c), (d), (e), (f), (g), (h), (i) and (j), 11, 12, (not opposed by the maternal grandmother) 13, 14, 15 (the Court has added the words “or mother” in 15(d)), 17, and Notation A. Those orders and notations are as set out at the commencement of these reasons.
Notation B as sought by the father in Exhibit “A1” was to the effect that he would encourage [X] and [Y] to provide their respective mobile telephone numbers to the mother and maternal grandmother. This notation was not agreed to by the maternal grandmother as she wished to have an order that the father specifically provide such information. The Court is of the view that the notation is to some extent inconsistent with the position adopted by the parties referable to [X] and [Y]. The Court is of the view that the more appropriate order is that promoted by the maternal grandmother in proposed order 5 of Exhibit “MG3”, accordingly that order will be made as order 22. Provision of such information to the maternal grandmother will in the circumstances of this matter allow for the provision of that information to the mother. The Court will therefore not make the order sought by the mother in her proposed order 8 namely, “That the father provide to the mother the mobile telephone numbers for [X] and [Y] and advise the mother of any change of numbers within three (3) days of such change”.
Further, Exhibit “M3” which provided for the orders sought by the mother similarly reached some consensus between the parties. In that document orders 2, 5, 6, 7, 8, 9, 10, 13, 14 were pressed as being orders not covered or different from that in the father’s proposal. Orders 5, 6 and 14 (limited to [Z] and [Y]) were agreed to by the father and the Independent Children’s Lawyer and not opposed by the maternal grandmother. Order 10 (limited to the maternal grandmother) was agreed to by all. Accordingly, those orders will be made and they will appear as orders 18, 19, 20 and 21 respectively.
Exhibit “MG3” being the orders sought by the maternal grandmother similarly had substantial agreement between the parties. Order 11 will be made by consent and will become order 23.

Principles to be applied and procedure to be followed

The best interests of the child remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…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) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(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 been 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 a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
“(a)   Identifying the competing proposals of the parties;
(b)     Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d)     considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h)     if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

Evidence

The father relied on:-
a)His Affidavit sworn on 27 July 2009 and filed on 27 July 2009;
b)His Affidavit sworn on 18 March 2009 and filed on 19 March 2009.
The mother relied on:-
a)Her Affidavit affirmed on 19 March 2009 and filed on 20 March 2009;
b)Her Affidavit affirmed on 8 April 2009 and filed on 14 April 2009;
c)Her Affidavit affirmed on 9 July 2009 and filed on 13 July 2009;
d)The Affidavit of Ms V sworn on 9 July 2009 and filed on 13 July 2009;
The maternal grandmother relied on:-
a)Her Affidavit affirmed on 19 March 2009 and filed on 20 March 2009;
b)
The Affidavit of Ms H sworn on 15 May 2008 and filed on

21 May 2008;
c)The Affidavit of the mother affirmed on 19 March 2009 and filed on 20 March 2009.
The following documents were placed into evidence as follows:

Exhibit No

Document

Date

Tendered by

ICL1

Report of Kalli Tsiotsioras released on 9 July 2009 and addendum released on 17 July 2009

ICL

ICL2

Report of Natalie Glaser released on 1 April 2009 excluding the last sentence of paragraph 50.

ICL

M1

Notice of mother’s parole order and conditions

1/8/08

Mother

M2

Minute of mother’s proposed orders

Mother

M3

Updated Minute of mother’s proposed orders

Mother

MG1

Minute of maternal grandmother’s proposed orders

Maternal Grandmother

MG2

Letter from DOCS

6/12/06

Maternal Grandmother

MG3

Updated Minute of Maternal grandmother’s proposed orders

Maternal Grandmother

A

Minute of father’s proposed orders

Father

A1

Updated minute of father’s proposed orders

Father

B

Father’s proposed form of undertaking to be provided by proposed supervisor

Father

The Court’s determination, therefore, is based subject to the above, on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where all of the evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.

Factual Matters

There appear to be a number of relevant uncontested facts, as follows:
a)The father was born in 1971 and is currently 38 years of age.
b)The mother was born in 1974 and is currently 34 years of age.
c)The maternal grandmother was born in 1958 and is currently 51 years of age.
d)The parties commenced cohabitation in 1991 and [X] was born in 1992, [Y] in 1994 and [Z] in 2000 and the children are currently aged 16, 15 and 9 years of age respectively.
e)The parties separated in September 2004.
f)The father is a pensioner.
g)The mother’s occupation is home duties.
h)The father lives at Property E with his mother and the children.
i)The mother lives at Property C with the maternal grandmother in a 1 bedroom unit, but where the dining room has been converted to a second bedroom for the mother’s use.
j)On 21 August 2007, the father commenced these proceedings.
k)On 11 September 2007, a final Apprehended Violence Order was made against the mother for the protection of the children. That order is in force until 11 September 2009.
l)In September 2007, the mother was arrested for supplying drugs. On 14 February 2008 she was imprisoned for 12 months in relation to the drug charges and 2 months for an assault charge, which were to be served concurrently. While in custody, the mother completed a parenting course, a domestic violence course and drug and alcohol counselling.
m)On 14 February 2009, the mother was released from prison.
n)The mother was the children’s primary carer prior to August 2007. Since 5 September 2007, the father has been their primary carer.
o)The father and mother have been involved in drug use and criminal activity. The father was convicted of a dishonesty offence in 2004 and served home detention.
p)On 24 March 2009, despite one of the mother’s parole conditions that she was to provide clear random urine results as directed by her parole officer, the mother took the maternal grandmother’s prescribed Benzodiazepines and produced a positive result.
There appear to be a number of disputed facts, as follows:
a)Whether in 2007 the children were “skipping school” or the mother was failing to have them ready for school.
b)Whether the father introduced the mother in 2007 to drugs such as Ice and Ecstasy and supplied her with them.
c)Whether the mother understood her actions towards [Y] amounted to a “gentle shove”, more than a “gentle shove” or “intentional harm”.
d)Whether the mother was physically and/or verbally abusive towards the children.
e)Whether the mother stabbed a wall and cut herself with a knife.
f)Whether the child, [Z], lacked warm clothes.
g)Whether the mother verbally threatened the father on 21 April 2009 at the Federal Magistrates Court.
h)Whether the father sent an abusive text message to the mother’s mobile telephone.
i)Whether the maternal grandmother spoke to the children in derogatory terms about the father.
j)Whether the mother had been threatened by drug dealers in the presence of the children.
k)Whether the father denigrated the mother in the children’s presence and whether the mother did the same.
l)Whether the father provided to the children letters and cards written by the mother while when she was in prison.
m)Whether the mother is currently drug free.
n)Whether the mother has a psychiatric illness.

Expert evidence

The reports of Ms Kalli Tsiotsioras were based, as she described, on the material provided by the parties and the interviews conducted.
Ms Tsiotsioras stated the following within the terms of her evaluation:
a)The children have grown up in an environment where both parents have been involved in criminal activity and violence and were, at one time or another, using drugs.
b)There appears to be a strong and close sibling bond between the children and they are protective of one another.
c)The father has made every effort to provide a safe, stable and secure relationship with the children and the children share a close relationship with him. The children appear happy and settled in his care.
d)All the children want to spend time with the mother.
e)The children have missed the mother, and have positive memories of her before she commenced using drugs.
f)Though the mother reported that she has been drug free while in detention, a period of abstinence of one year is advisable from the time of release, as prison is considered to be a controlled environment.
g)If the mother were to relapse, this would mean another significant loss for the children. The children need to be reassured of the mother’s ongoing wellbeing and maintain connections with her. This need is to be balanced against limiting any disruption to the children’s lives and shielding the children from conflict, so that their relationship with the mother does not become burdensome for them.
h)Given that the mother has been imprisoned for, inter alia, assaulting [Y], any time that the children spend with her will need to be supervised, until such time as she has been formally assessed, treated and can demonstrate that she has made sufficient changes to her lifestyle.
i)Given that the maternal grandmother does not believe that the mother is a threat to the children, this may compromise her suitability as a supervisor, as it is possible that she would not always be sufficiently vigilant.
j)The children appear to experience a close relationship with the maternal grandmother and they enjoy spending time with her, however, they are also busy with school, employment and soccer commitments.
k)Given her history and presentation in interview, the mother may have some form of mental health problem. It would be important for the mother to be formally psychiatrically assessed and for the children to be given a clear age appropriate explanation of the outcome in order to better understand her.
l)Since the mother’s release from detention, she has been cautioned in relation to substance use by her probation and parole officer. The evidence in this regard showed that she had consumed a prescription drug prescribed for the maternal grandmother and given to her by the maternal grandmother.
m)From both parents’ accounts, there is currently little communication between them, with any form of contact quickly turning into conflict. Consequently, it would be in the children’s best interests that minimal contact occurs between the parents and equal shared parental responsibility would not be a viable option at this time.
Ms Tsiotsioras makes the following recommendations in her report:-
a)That the children live with the father.
b)That [X] and [Y] spend time with the mother in accordance with their wishes.
c)That [Z] spend supervised day time contact with the mother, for half a day, every three weeks for six months, then every two weeks for six months.
d)That [Z] be accompanied by at least one sibling when spending supervised time with the mother, at a time that they are available and that does not impact on their activities.
e)That the mother undergo a psychiatric assessment.
f)That the children be referred to the Holy Oake programme for counselling and support.
g)That an update report be conducted to assess the mother’s progress in about one year’s time.
The Court has quoted extensively from the family report writer’s report as set out above. Ms Tsiotsioras was orally examined and her evidence was entirely consistent with the terms of her written report.
The Court accepts and gives significant weight to the expert’s recommendations. The Court has had regard to the general observations set out by the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713 at p. 78,819 to 78,820.

Presumption of equal shared parental responsibility

Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
The Court notes that this interim decision may be disregarded, if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.
As the Full Court in Goode & Goode [2006] FamCA 1346 states unless displaced by court order, the parties parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict, provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]

If the issue is not a “major long-term issue”, then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).

Parental Responsibility

The Court finds that the presumption will not apply in this case, as the parties have agreed that the father will have sole parental responsibility, pending further order. Under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.

Time to spend

To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.

Supervised time

The basis for a supervision order was described by Carmody J at paragraph 58 in Murphy & Murphy [2007] FamCA 795 as follows:
“Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”
As the Full Court of the Family Court of Australia stated in B & B (1993) FLC 92-357 (sub-nom Bieganski) (Fogarty, Baker & Purvis JJ.):
“Both social science, literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists…Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.”
The Full Court of the Family Court of Australia in C & J [1996] FamCA 86 (Fogarty, Kaye and May JJ) when ordering supervised access through the paternal grandparents as being in the best interests of the children in that case for a further period of time during which the party the subject of supervision could have counselling and therapy and the matter then reviewed in light of progress made, took the opportunity of expressing their views that the comments of the Full Court in B & B (1993) FLC 92-357 had become regarded as “too rigid”. The Court said:-
“The significance of B’s case was as a timely reminder that supervised access was not to be used routinely and by way of compromise in cases of this sort. The Court pointed out a number of difficulties inherent in that approach. Firstly, such orders may not give proper consideration to the real issues. Secondly, practical difficulties are usually encountered in arranging satisfactory supervisors, especially long term. Thirdly, whilst supervision may protect a child from a repetition of sexual or other abuse, it may not protect the child, and indeed may exacerbate the situation, in relation to what might be described as the psychological consequences of the child being brought into contact with a person who has abused or may have abused that child…. In addition, we think it can be said that supervised access would have been inappropriate in a case like B’s case where the abuse was established and had continued after a previous supervision order had been made.”
The mother’s evidence was that she was prepared to vacate the maternal grandmother’s home at any time that the children were there. That is, however, not necessary for the two older children in light of the parties’ agreement. However, in the case of [Z], the mother may spend such time in the maternal grandmother’s home with [Z] there, provided such time is supervised by Ms H.
The Court does not propose to restrict the location for the mother and/or the maternal grandmother to spend time with [Z] to the maternal grandmother’s home. The evidence is that the home is a converted one-bedroom apartment and it would appear sensible that [Z] be permitted to spend such proposed time, outside the home. Further, the evidence supports the maternal grandmother spending time with [Z] at the nearby shops and play areas. Provided, Ms H is present to supervise such time, the Court does not see the utility in restricting or defining the location as to where such time may be spent.
The Court adopts the recommendations of Ms Tsiotsioras for the need for there to be a graduated approach to the spend time issue but is also of the view that given the parties agreement as to the length of that time, namely 10am to 6pm, that, for a period of three months, such time should be on one Sunday per month and after that period, on every second Sunday. In other words, a faster approach to that proposed by the father but not its immediate introduction as proposed by the mother and the maternal grandmother.

Primary considerations

In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which 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.
The need for a meaningful relationship must be balanced against the need to protect the child from physical or psychological abuse or exposure to family violence, which is itself defined in s.4(1) of the Act as:
“ conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The considerations listed in s.60CC(2), do not inevitably outweigh the other considerations, but the Court must give some weight to be attached to the term “primary”. See Elspeth & Peter [2006] FamCA 1385.
In this regard:
a)The primary consideration referred to in s.60CC(2)(a) is supportive of the position that, provided the issues concerning the mother’s current condition, which are still subject to further investigation and assessment, are guarded against, as much time as possible between [Z] and the mother is in the child’s best interests.The Court accepts that [Z] has a meaningful relationship with both parents.
b)The primary consideration referred to in s.60CC(2)(b) is relevant on the facts of this case. Given the evidence concerning the mother’s understanding and appreciation of the assault to [Y] is untested, the Court is concerned to ensure that, until there is a proper assessment of the matters referred to by the family consultant in her recommendations, any time with the child, [Z], should be supervised and be “day” time only.

Additional considerations

The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:

(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;

In R & R: Children’s Wishes (2000) FLC 93-1000, , the Full Court of the Family Court of Australia said:-
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
None of the children have expressed a wish to spend overnight time with the maternal grandmother.
[X] and [Y] are engaged in representative soccer and play each Saturday. [Z] also plays club soccer on Sundays.
The Court accepts that all the children, including [Y] who was the subject of the mother’s physical assault, wished to see her and were excited when they did, as there had been a substantial period of absence from her.

(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);

The Court accepts that the maternal grandmother has had a close and loving relationship with all three children, including sleeping at her home, taking them to school, cooking for them and caring for them. The maternal grandmother says that she does not wish to undermine the father’s relationship with the children.
The children’s relationship with the maternal grandmother’s ex-partner needs to be further investigated.
The Court accepts the submission that the orders sought by the maternal grandmother should not displace the importance of the relationship of the father and the mother as parents and, in particular, there is a need for all of the children to get on with their lives.

(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;

The father’s evidence was that he was willing and able, subject to the matters to be investigated and highlighted in the family consultant’s report, to facilitate a relationship between [Z] and the mother.
The observations of the family consultant in her report where she terminated the mother’s interview as she believed the children were becoming uncomfortable when the mother started discussing certain things with them are of some importance. Notwithstanding the family consultant’s statement that she requested the mother to change the topic of her conversation with the children, the mother apparently ignored this request and continued conversing with the children. In those circumstances, Ms Tsiotsioras terminated the interview.

(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;

The orders now contemplate that [Z] will only be the subject of spend time orders. [Z]’s time with the maternal grandmother will be increased and he will be re-introduced to the mother. To the extent that these orders are not being made with respect to [Z]’s brothers, this has the potential for some effect on [Z]. This will need to be further investigated.

(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;

The maternal grandmother’s evidence was that she lives in a one bedroom flat, converted to provide a second bedroom for the mother. This presents a practical difficulty for both the maternal grandmother spending time with [Z] and for the mother to spend such time supervised. The practical consequences are that overnight time should not be permitted given the issues relating to the mother and the need for [Z]’s time to be supervised.

(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;

The family consultant describes the father as managing the children in an age appropriate manner. The evidence suggests that the father is able to provide for the children during the time that they spend with him.
The Court accepts that the father has the relevant capacity to provide for the children.

(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.

Ms H has indicated that she communicates with the children in Serbian, although it would appear that they have a limited grasp of that language. Nevertheless, the Court was satisfied that Ms H had a sufficient grasp of English to fulfil her role as a supervisor.
The evidence of the maternal grandmother was that 7 January each year is celebrated as “Christmas” in her culture and the Court is of the view that the children should, otherwise, spend time with her on that date, in accordance with her proposal.

(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;

These factors do not apply to this child.

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

The issue identified by Ms Tsiotsioras as to the need for a psychiatric report for the mother is of critical concern for the Court to assess the mother’s actions as evidencing her attitude to the children and to the responsibilities of parenthood.

(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;

Federal Magistrate Brown in B & O & M [2005] FMCAfam 379 discussed the impact of violence on children as follows:
“The danger that is represented to young children of violent conduct of this type is not confined to a risk of physical harm to them. It is generally accepted that it is not appropriate to expose children to any kind of violent behaviour and such exposure may have serious consequences for their long term development. The issue was discussed by the Full Court of the Family Court in two cases, In the marriage of J D & B G (1994) 18 FLR 255 and In the marriage of Patsalou (1994) 18 FLR 426. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict with the use of violence in the future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents. In this regard, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of another person, especially the other of a child’s parents, is not a suitable role model for children”.
The mother was the subject of a final Apprehended Violence Order for the protection of the children made on 11 September 2007. This order is in force until 11 September 2009.

(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

The Court finds that, as this is an interim hearing, this factor must be assessed in this light.

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

There is no other fact or circumstance relevant.

Matters in ss.60CC(4) & (4A):

Given the status of the hearing, the Court does not find it necessary to consider the factors set out in ss.60CC(3)(c) and (i) of the Act at this time as, to a large extent, the consideration of those matters will require the further reports recommended by the Family Consultant.

Reasonably practicability of ‘spending time’

The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):

(a) how far apart the parents live from each other; and

The Court finds that this factor poses no real issue.

(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

The mother’s capacity needs to be the subject of further assessment and report.
The Court accepts that, at this point in time, the father has the relevant capacity.

(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

The Court accepts that there are communication issues between the parties but particularly between the mother and father and also notes that there are mechanisms to overcome these and the current proposed orders of the parties reflects the intent of all to achieve this outcome.

(d) the impact that an arrangement of that kind would have on the child; and

The Court is concerned that [Z] will see himself as being in some way treated differently from his brothers, but given the age and maturity differences, this is a matter which needs to be handled sensitively by engaging [Z] and his brothers to assist in this.

(e) such other matters as the Court considers relevant

The Court finds that the mother’s current living arrangements in the maternal grandmother’s home provides practical problems for [Z] to spend overnight time and supervised time. The mother’s evidence appeared to indicate that this arrangement may be of short term duration. If this issue changes, the family consultant would need to be provided with updated information.

Conclusion

General time

The father in his proposal sought a staged approach to the time issue. For a period of two months, such time was to be exercised on one Sunday per month and then on every third Sunday for four months and then every second Sunday. The mother’s proposal was for the twice monthly time to commence immediately. The Court was of the view that a staged approach should be adopted but to reflect a quicker time frame to implement the twice monthly time.
The Court was also of the view that given [Z]’s potential sporting and other social commitments it was important for such time to occur on the Saturday immediately prior to the contact Sunday in accordance with the maternal grandmother’s proposal if [Z], because of those commitments, could not spend that time with his mother and/or maternal grandmother.
Further, the Court is of the view that given the importance for the maternal grandmother of “7 January” being “Christmas” in her culture, the time orders in her favour should include that date, together with such further or other times as may be agreed between the father and the maternal grandmother and the mother in respect of each of their times.

Wedding Time

The Court was informed the father had already made arrangements for all of the children to attend Mr M’s wedding. In light of Ms H’s reluctance to provide an undertaking which covered specifically
“I intend to be at the wedding of the maternal uncle MR M in October 2009, and throughout that event I will be bound by the above undertakings for the protection of [Z], if Ms L. Jelenich also attends that event,”
the Court is of the view that she should not be required to so supervise (as was sought by the father) before [Z] could attend. The Court is satisfied that the public nature of the event (including rehearsals, suit hire or fittings) and the attendance of [Z]’s brothers is a sufficient protection for [Z], provided that the mother is only permitted to spend time there with [Z] at that time, if either or both of [X] or [Y] are present at the time.

The Court does not consider in light of the arrangements made by the father with Mr M that there is any utility in considering the maternal grandmother’s proposed order 8 to the following effect:
“Further thereto the child [Z] be permitted to attend and remain at the premises of the maternal grandmother from 12pm midday Saturday 3 October 2009 until departure for the above wedding ceremony. Should Ms L.Jelenich be present at any time in this period, then the maternal grandmother is to ensure Ms H is there also to supervise contact between [Z] and Ms L. Jelenich.”

Telephone time

The maternal grandmother sought an order that she be permitted to contact [Z] each Tuesday and Thursday between 6pm and 9pm and at other times by agreement with the father. The mother sought telephone time with [Z] each Tuesday and Thursday between the hours of 6.30pm and 7.30pm to be supervised by the maternal grandmother.
The father did not seek any specific telephone time for the mother with [Z] and sough that the maternal grandmother’s time be in accordance with [Z]’s wishes.
The Court accepts that there should be a limitation on the telephone time so that it does not become too intrusive.
The Court is of the view that the mother’s proposal for telephone time should be ordered, but limited to one day per week as agreed between the parties but failing agreement, on the Tuesday between the hours of 6.30pm and 7.30pm with such time to be supervised by the maternal grandmother. The Court is satisfied that the maternal grandmother is capable of supervising this type of time. Similarly, the Court is of the view that the maternal grandmother’s telephone time should occur on one day per week, which will be as agreed between the parties, but failing agreement, on a day other than the day the mother’ exercises such time and, therefore, on Thursday, together with such other time as accords with [Z]’s wishes.

Supervision

The Court is of the view, in accordance with Ms Tsiotsioras’ recommendations, that the mother’s time with [Z] should be supervised.
The Court is not satisfied, notwithstanding all the maternal grandmother’s good intent, that she should be placed in a position of being that supervisor. The Court is of this view for a number of reasons. First, the maternal grandmother is not physically capable to physically supervise and this appears to be reflected by the mother in her conversation with the family consultant, where the family consultant reports that the mother expressed concern “that the maternal grandmother’s mental health has “relapsed””. Secondly, the maternal grandmother describes herself as being largely dependent on the mother and it would appear that the mother is her full time carer. Thirdly, both the mother and the maternal grandmother live together in the same unit and it would place the maternal grandmother in some difficulty if she had to remove [Z] from the mother’s presence at any time. This view was supported by the maternal grandmother’s evidence as to her discussions with the mother concerning the delivery of clothing to the children using a Police escort. Understandably, the maternal grandmother saw and still sees her role to assist the mother as her daughter. Similarly, the maternal grandmother’s evidence that she prescribed her own prescription drug to the mother to assist her is of some concern.
While the maternal grandmother is supportive, it must be remembered that Ms Tsiotsioras identified matters which the Court requires to be the subject of further investigation now referrable to [Z]’s ongoing safety issues with the mother.
The Court, however, is of the view that Ms H is otherwise an appropriate supervisor who carefully thought about her responsibilities, conceding matters where she could not supervise for example school holiday time and at the wedding and was otherwise an impressive witness.
The Court is of the view that the form of undertaking as set out at the conclusion of these reasons is an appropriate form of undertaking, excluding paragraph 10 which relates to the wedding and on the basis that Ms H provides that undertaking to the Court, she is permitted to supervise [Z]’s time with the mother, as contemplated by the orders of the Court.
The Court is also of the view that there should be some obligation on the maternal grandmother to ensure that Ms H is available to attend for supervision purposes, given her obvious close relationship to Ms H. The maternal grandmother’s proposal in order 4 reflects this and this will be incorporated into order 4(b)(ii).

Other orders

Order 8(g) of the father’s proposal will be made as while there is evidence that Mr R, being the maternal grandmother’s ex-partner is no longer in a relationship with her, they having separated in January 2008, the maternal grandmother’s own evidence was that she would encourage [Z] to meet with Mr R. Given the allegations and the existing consent orders made in April 2009 and that Ms Tsiotsioras had not interviewed Mr R, the Court is of the view that it is appropriate to continue that order on the basis that [Z] may also be accompanied by Ms H. This amended order will become order 8(g).
Order 9(b) as sought by the father will be made so that it is clear to the mother that she should not put the maternal grandmother into a position of being in breach of order 8(b) which was made with the mother’s consent.

Orders that will not be made

The Court will not make an order as sought in order 10 of the father’s proposal as follows:
“The father shall not be in breach of Order 4 if there has been a breach of Order 8 or Order 9 or if MS H is not available to supervise [Z]’s time with the mother.”
The Court will not make Order 9 of the mother’s proposal:
“That the father is to provide to the mother a landline telephone number so as to facilitate telephone communication between the mother and [Z] and to notify the mother of any change of number within (3) days of such change.”
The Court will impose this obligation on the father but will incorporate this requirement within order 23 referable to the maternal grandmother.
The Court will not make Order 13 of the mother’s proposal:
“In the event that the father wishes to travel with the children interstate or outside the Commonwealth of Australia the father is to provide written notification to the mother detailing intended dates of travel, itinerary, copies of airline tickets and contact numbers 21 days prior to the intended dates of travel.”
The Court will not make Order 10 of the maternal grandmother’s proposal:
“At all times during the currency of these orders, the father shall facilitate and encourage [Z] spending time with the maternal grandmother.”
The Court will not make Order 13 of the maternal grandmother’s proposal:
“Either party shall be at liberty to call or contact the other in relation to [Z]’s contact.”
The Court will not make the above orders recognising the difficulties identified by Ms Tsiotsioras in the current state of the communications between the mother and the father. The maternal grandmother is a vital connection to assist in the resolution of those communication issues and orders should be made directed to achieve a resolution rather than impose hurdles.
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders set out above are, otherwise, in the best interests of [Z] and accordingly, the Court will so order.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of FM Kemp FM

Associate: Joanne Balson

Date: 25 August 2009

UNDERTAKINGS BY MS H

I, MS H, of Property S, New South Wales, give the following undertakings to the Court in these proceedings:

2. I will at all times carry out my role as supervisor taking into account only the safety and welfare of [Z], and putting above all other considerations the protection of [Z] from any form of abuse, including physical or verbal abuse.

3. I will not allow my friendship with either Ms G. Jelenich or Ms L. Jelenich to influence the decisions I should make and/or the actions I should take for the protection of [Z] while I am supervising his time with the mother and the maternal grandmother.

4. I will remain in the presence of [Z] and the mother at all times while they are together.

5. I will not permit the mother to spend any time alone with [Z].

6. If it is proposed that [Z] will leave Ms G. Jelenich’s home with Ms L. Jelenich in order for them to spend time together outside the home, then I will accompany them and keep [Z] within my sight at all times.

7. If Ms L. Jelenich behaves in any way that I believe to represent a risk to [Z], either physically or emotionally, then I will immediately remove [Z] from Ms L. Jelenich’s presence and immediately telephone the father MR RUZIC (“Mr Ruzic”) and tell him about the action I have taken and why I have taken that action.

8. If I am unable to contact [Mr Ruzic] I will telephone the police and ask them to assist me in removing [Z] to a safe place.

9. At all times while supervising [Z] I will keep with me a copy of these undertakings and a copy of the Orders.

DELETED.

If I am unable to supervise [Z]’s time with Ms L. Jelenich on any occasion, including the wedding of Mr M, I will tell Mr Ruzic and Ms G. Jelenich.

Signed……………………………………………………………..
MS H

Witness…………………………………………………………..
SOLICITOR/BARRISTER

Date………………………………………………

Exhibit No	Document	Date	Tendered by
ICL1	Report of Kalli Tsiotsioras released on 9 July 2009 and addendum released on 17 July 2009	ICL
ICL2	Report of Natalie Glaser released on 1 April 2009 excluding the last sentence of paragraph 50.	ICL
M1	Notice of mother’s parole order and conditions	1/8/08	Mother
M2	Minute of mother’s proposed orders	Mother
M3	Updated Minute of mother’s proposed orders	Mother
MG1	Minute of maternal grandmother’s proposed orders	Maternal Grandmother
MG2	Letter from DOCS	6/12/06	Maternal Grandmother
MG3	Updated Minute of Maternal grandmother’s proposed orders	Maternal Grandmother
A	Minute of father’s proposed orders	Father
A1	Updated minute of father’s proposed orders	Father
B	Father’s proposed form of undertaking to be provided by proposed supervisor	Father