Trosti and Trosti

FAMILY COURT OF AUSTRALIA

TROSTI & TROSTI

[2012] FamCA 370

FAMILY LAW – CHILDREN – with whom the children should live – where there has been family violence – where the family lived with the paternal grandparents – whether the children should have contact with the mother after incidents of family violence – whether the contact with the mother should be supervised – whether the parents should have equal shared parental responsibility – whether the allegations of family violence have been exaggerated – where the eldest child is believed to have coached the younger siblings into disliking the mother – where the father has sole parental responsibility – where the mother has shown an ability to improve her life and obtain counselling after separation – where the older two children are only to have contact with the mother in accordance with their wishes – where the youngest child is to have supervised contact with the mother – where both the mother and father are to continue counselling

Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Trosti

RESPONDENT:

Ms Trosti

INDEPENDENT CHILDREN’S LAWYER:

Ross Clarke & Associates

FILE NUMBER:

SYC

7220

2009

DATE DELIVERED:

18 May 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

13-16 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Adams Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

INDEPENDENT CHILDREN’S LAWYER:

Ross Clarke & Associates

Orders

The father have sole parental responsibility for the children.
The children V Trosti born … March 1999, N Trosti born … April 2002, and M Trosti born … February 2007 (“the children”), live with the father.
The child V spend time with the mother in accordance with her wishes and at times separate to the child M’s time with the mother.
The child N spend time with the mother in accordance with his wishes and at times separate to the child M’s time with the mother.
The child M is to spend time with the mother as follows:
(a)once per month at a contact centre in the Sydney Metropolitan area, nominated and arranged by the mother, for as long as the centre allows, for a period of six (6) months and
(b)after six (6) months of time at the contact centre, M to spend supervised time with her mother every four weeks on an agreed day from 10.00 am to 4.00 pm, together with another adult chosen by the mother who shall be present during the time period in a monitoring role.
For the purposes of all time periods referred to in these Orders, the father is to transport M to the changeover venue for the time with her mother and collect her at the conclusion, and such changeovers are to occur at the contact centre, or if unavailable, a place nominated by the mother.
The father, mother and children are to attend a further assessment with the Single Expert, Dr R, in eight (8) months time for the purposes of assessment and procurement of a report.
The report of Dr R is to be provided to the Independent Children’s Lawyer.
The mother is to telephone the father each week to speak to the children on a day and at a time agreed between the parties.
The father is to do all he can to ensure that the children V and N do not undermine the child M’s time with the mother by speaking negatively about the mother or discouraging M from spending time with her mother in any other way.
The parents are to communicate by email, and by phone calls and text messages, and are to provide each other with their mobile and landline numbers for that purpose.
The father is to do all things necessary to ensure that the mother is permitted to attend any school events at M’s school, which parents are normally permitted to attend.
The father is to do all things necessary to ensure that the mother is entitled to receive and does in fact receive copies of school reports, school newsletters and any other documents normally made available to parents, from the children’s schools.
The father is to keep the mother advised of his intentions in regard to the children’s schooling and take account of any information the mother provides to him of her views in that regard in his decision making in relation to those matters.

The father is to advise the mother of any medical treatment of the children, other than minor illnesses, and advise her of all details of the children’s treating doctors or therapists, and authorise such doctors and therapists to provide the mother with full information about their treatment of the children.
The parties are to continue to attend on Ms B, or if she becomes unavailable, any person she nominates, for counselling for as long as she recommends they continue to do so.
The father is to do everything he can to ensure that neither he nor any member of his family speaks about the mother in a negative way in the presence or hearing of the children.
The mother is not to speak about the father or his family in a negative way to or in the presence or hearing of any of the children.
The mother and father are hereby restrained from physically chastising or physically disciplining the children.
The father is to attend counselling with a mental health professional familiar with Family Court matters to give him a better understanding of what has happened to himself and the children, from a perspective other than the father’s, and he is to provide such counsellor with a copy of Dr R’s report.
The father is to attend a “Keeping Kids in Mind – Post-separation Parenting Course”.
The mother is to continue to see her counsellor for as long the counsellor recommends.
The mother is to communicate with the children by sending cards and letters, and may send presents and the father is to ensure they are treated respectfully in his home and is to allow the children to respond in a similar manner.
Within twelve (12) months of the date of these Orders the mother will pay the sum of $5,830 to Legal Aid NSW as payment of half the costs of the Independent Children’s Lawyer.
Within three (3) months of the date of these orders the father will pay the sum of $5,830 to Legal Aid NSW as payment of half the costs of the Independent Children’s Lawyer.
Pursuant to Section 65L of The Family Law Act 1975:
(a)compliance with these parenting orders is to be supervised by a family consultant nominated by the Manager of Child Dispute Services of the Sydney Registry of the Court and
(b)the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with and the carrying out of the parenting orders.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed for the list of Active Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7220 of 2009

Mr Trosti

Applicant

And

Ms Trosti

Respondent

And

Ross Clarke & Associates
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between parents with respect to the parenting of the children of their marriage: V Trosti born in March 1999 and now 13 years of age; N Trosti born in April 2002 and now 10 years of age; and M Trosti born in February 2007 and now 5 years of age.
The parties met and were married in Macedonia. After obtaining a visa the mother moved to Australia and lived with the father and his parents for the entirety of their marriage save for a period when she returned to Macedonia to give birth to a child.
The mother has not seen the children since July 2010 when the father unilaterally suspended time between the mother and the children, apart from the interviews with Dr R in May and June 2011.
The household in which the mother lived was one where there were two organisers of the house, the mother and the paternal grandmother, and each had her own views on how the house should be run. The mother asserts that she was constantly criticised and that nothing she did was right. The paternal grandmother asserts that she always helped the mother and avoided becoming involved in the parenting of the children as these were decisions for the mother and the father. Where the truth lies is uncertain. The Court accepts that it is a clear perception of the mother that she was being constantly criticised.
The evidence suggests that the children’s home was in a hostile household, and that the conflict which there existed has continued unabated since separation which the Court finds disappointing.
There are allegations against the mother that she has physically abused the children. While there appears to be some truth in the allegations, the Court has doubts as to the extent of the violence and it is open to the mother’s suggestion that there is a possibility that the father also physically abused the children. The Court perceives that both the mother and father have exaggerated for forensic advantage their evidence with respect to the violence perpetrated against the children. This reflects on the credit of both the mother and the father.
The Court notes that since separation the mother has changed her life dramatically by gaining independence in obtaining her driver’s licence and employment. She has undertaken education, accepting responsibility for her actions and demonstrating an ability to carry on with her life. It appears she has developed confidence and self-esteem since she has been significantly free from the stresses of the hostile and constraining household of which she was once part.
There are also issues in this matter as to whether the father is a responsible parent, in particular in allowing the children to make decisions about when they should see their mother and also as to which high schools they should attend. Are these allowances paying proper attention to child autonomy or are they inappropriate empowerment of children in an arena of decision making which should be adult and parental? Where does the distinction lie between recognition of child autonomy and abrogation of parental responsibility?
A central issue is the danger to the children in not having contact with the mother at all as against the possible danger to the children if the Court makes Orders for the children to have contact with the mother.
If different Orders are made in relation to the individual children there is a need to consider the effect on the sibling relationship, particularly if M is to have contact with the mother without V and N.
The father relied on the evidence of members of his family including: the paternal grandmother Mrs T (“the paternal grandmother”); the paternal grandfather Mr T (“the paternal grandfather”); and his sister Ms K.
The mother relied upon her evidence.

Background Facts

In 1974 the father was born and is now aged 38.
In 1974 the mother was born in Macedonia and is now aged 37.
In 1996 the parties were married in a civil ceremony in Macedonia. Soon after that wedding the father returned to Australia and the mother remained in Macedonia pending the outcome of her Australian visa application.
In February 1997 the mother asserts that she was raped by her ex-boyfriend in Macedonia. The father does not believe that the mother was raped but infers there was consensual sexual intercourse between the mother and her former boyfriend.
The mother arrived in Australia in March 1997 and commenced cohabitation with the father and his parents.
After her arrival the mother discovered that she was pregnant as a result of the rape she asserts took place in Macedonia.
On becoming aware of the situation the father asked her to have an abortion but the mother’s pregnancy was already in her second trimester and she was unable to do so.
The father then sent the mother back to Macedonia to have the baby adopted once it was born. The mother asserts that she was isolated for three months before she gave birth and then put the baby up for adoption. The parties reconciled and the mother returned to Australia in November 1997 to start her life with the father.
In December 1997 the parties went through a religious ceremony of marriage in Australia.
In March 1999 the child V was born and is now aged 13.
In April 2002 the child N was born and is now aged 10.
Approximately two years after N was born, in June 2004, the parties had a son E who was stillborn.
Approximately six months after the stillbirth of E the mother had a miscarriage at seven weeks of pregnancy.
In February 2007 the child M was born and is now aged 5.
In approximately 2007 or 2008 V was diagnosed with having a cyst on her brain.
In September 2009 the father’s sister, Ms K, was married. The wedding reception took place at the family home.
On 29 October 2009 an altercation took place between the mother, father and paternal grandmother. This incident is detailed below. On 29 October 2009 following this incident the parties separated. The mother was charged with assault and damage to property. The police took the mother to a women’s refuge.
On 27 November 2009 the father filed an Initiating Application where he sought orders for sole parental responsibility for day-to-day decisions; for the children to live with the father; and for the children to spend time with the mother as agreed between the parties.
On 4 December 2009 at a Local Court the mother consented without admissions to an Apprehended Violence Order for the protection of the father for a period of one year. By consent this was extended for a further six months and has now expired. On the same day the father also consented without admissions to an Apprehended Violence Order for the protection of the mother for a period of two years. This expired on 4 December 2011. The mother also received a Section 10 Bond for the assault charge and a one year good behaviour bond.
On 13 December 2009 the paternal aunt, Ms K, took the children to McDonald’s for the purposes of spending time with the mother. The mother spent two hours with the children on this occasion.
The mother did not spend time with the children for the period from then to

7 February 2010.
On 14 January 2010 the mother filed a Response to the father’s Initiating Application in which she sought orders that the children live with her.
On 27 January 2010 Orders were made by Judicial Registrar Loughnan (as he then was), that the mother spend time with the children each Sunday from 10.00 am to 5.00 pm for a period of four weeks commencing on 7 February 2010. The Orders also provided that starting on 6 March 2010 the mother spend time with the children from after N’s soccer on Saturdays until 5.00 pm on Sundays each alternate weekend.
On Sunday, 21 February 2010 the mother spent time with the children. The father alleges that V and N returned home that day with scratches on their arms and reported that the mother had scratched them and dug her nails into their arms and that she had pushed M. The children also allegedly reported to the father that the mother was making derogatory remarks about the father and the paternal grandparents to the children. The mother denies this. After this incident the father unilaterally ignored the Orders for contact.
On 26 February 2010 the father filed a Notice of Abuse which relied solely on the events of Sunday, 21 February 2010.
On 14 April 2010 consent Orders were made on an interim basis allowing the mother to spend time with the children supervised at a Contact Centre for a period of two hours each weekend. The mother spent time with the children under this arrangement from 22 May 2010 until July 2010.
In July 2010 the father unilaterally suspended the time the mother was to spend with the children at the Contact Centre due to altercations which occurred between the mother, V and M, and complaints said to have been made by the two older children.
On 23 May 2011 the Court made Orders for the parties to attend on a psychologist nominated by the Independent Children’s Lawyer, Ms B. Orders were also made for the father to attend a “Keeping Children in Mind Course”. The father deposes that he completed this course in August 2011. The mother had already completed this course previously.
On 8 June 2011 the father made an Application for Apprehended Violence Order against the mother. It is the mother’s evidence that the Apprehended Violence Order was withdrawn prior to a final hearing by the father.
On 19 July 2011 the Single Expert, Dr R’s report dated 7 July 2011 was released to the parties.
On 17 September 2011 the parties were divorced.

The Issues to be Determined

Whether the parties should have equal shared parental responsibility.
Whether Orders should be made for the children V and M to spend time with the mother.
Whether the child M should spend time with the mother and, if so, whether it should be supervised time and how much time should be allowed.

Credit

The truth in some of the allegations of violence is hard to find. The Court believes that there was exaggeration for forensic purposes on the part of both parties.
Whilst the mother believes that there is a conspiracy against her devised by the father and his family, the weight of the evidence suggests that it is more probable than not that violence occurred including her attack on the paternal grandmother. The mother’s credit is impugned to at least this extent.
The mother demonstrated relative equanimity for the whole day that she was under cross-examination. Whilst she did express emotions at times she did not appear as mercurial under stress as the evidence suggests she was at the time of separation.
The father also demonstrated some emotion whilst under cross-examination, in particular at the point when questioned about the stillbirth of his son E.
The father had a tendency to exaggerate his evidence. Such examples are stating that he had blood “all over him” after the incident on 29 October 2009, and that there was glass through the “entire house”. Upon being questioned about his evidence, the father stated that he had a little blood on his singlet and that there was glass in the kitchen, one bedroom, the hallway and the dining room as a result of a broken cookie jar. It was highlighted in the evidence that the house is a large double-storey house with four bedrooms, two bathrooms, two television rooms, kitchen, dining room, two smaller rooms downstairs, a storage area and a double garage, and that glass could not possibly be through the “entire house”.
The father made submissions that the Court should find the mother to be an untruthful witness due to the discrepancies in her evidence about the scratches that appeared on V and N after they had a visit to the mother’s house on Sunday, 21 February 2010.
The father submits that while the mother did her best to appear insightful and stable in Court, the objective evidence contained at paragraph 21.1 of

Dr R’s report would indicate that she remains labile.
In his submissions, the father also states that there is compelling evidence of the mother’s lack of reliability as a witness which can be gained from a viewing of the Electronically Recorded Interview of N produced by the NSW Police pursuant to a subpoena. The DVD is an interview of N following the incident on 29 October 2009 (“the Electronically Recorded Interview”) and is part of Exhibit 8.

The Court adheres to its finding in paragraph 47.

The Orders Sought by Each Party

The father, in summary, seeks the following Orders:
(1)That all previous and existing orders be discharged.
(2)That the husband have sole parental responsibility for the children with regard to major long term issues.
(3)That the husband is to have sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the children when they are in his care, and the wife is to have the sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the children in the event that they are in her care.
(4)That the children live with the husband.
(5)That the wife be restrained from removing the children from the Sydney metropolitan area without the express written consent of the husband.
(6)That until further order the wife be restrained from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.
(7)It is further ordered that:
(a)The Australian Federal Police place the names of the children on the Airport Watch List and maintain the children’s names on the Watch List until further order of the Court.
(b)The Australian Federal Police maintain an airport watch of the said children on all flights leaving any International Airport in all states and territories of Australia.
(8)That within seven days of the date of these orders, the wife provide to the husband’s legal representatives an address to which the husband can forward correspondence and documentation concerning the children.
(9)That the husband keep the wife informed of all major decisions he makes in relation to the children, notifying the wife in writing of those decisions to the address provided by the wife.
(10)That each party forthwith keep the other fully informed of their current place of residence, landline and mobile telephone numbers and email address, and advise the party forthwith upon any change in details of the same.
(11)That there be no contact between the children unless pursuant to the wishes of the children.
(12)That the mother be restrained from approaching the children in any way, including at their schools or extracurricular activities unless with written agreement of the father.

The mother, in summary, seeks the following Orders:
(1)That all previous orders be discharged.
(2)That the mother and father have equal shared parental responsibility for the children.
(3)That the children live with the father.
(4)That [V] shall spend time with the mother as agreed between [V] and the mother.
(5)That the children [N] and [M] shall spend time with the mother as follows:
(a)For a period of six months, for a period of up to four hours each fortnight supervised at the [a named] Contact Service, or other available service.
(b)Thereafter, for a period of three months, each Sunday from
9.00 am until 1.00 pm.
(c)Thereafter, for a period of three months, each Sunday from
9.00 am until 5.00 pm.
(d)Thereafter, for a period of six months, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday.
(e)Thereafter, each alternate weekend from after school Friday until before school Monday.
(f)Commencing in the school holiday period at the end of Term 1 2014, for the first half of each school holiday period at the end of Term 1, Term 2, and Term 3 and during these school holiday periods the time the children spend with the mother in accordance with Order 5(d) shall be suspended.
(g)Commencing in the Christmas school holiday period at the end of 2013, for one half of the school holiday period on a week about basis commencing on 10.00 am on the first Saturday in odd numbered years and commencing on the second Saturday at 10.00 am in even numbered years and during these school holiday periods the time the children spend with the mother in accordance with Order 5(d) shall be suspended.
(h)From 1.00 pm until 5.00 pm on Christmas Day in 2012.
(i)From 9.00 am Christmas Eve until 2.00 pm Christmas Day in 2013 and each alternate year thereafter.
(j)From 2.00 pm Christmas Day until 5.00 pm Boxing Day in 2014 and each alternate year thereafter.
(6)That for the purpose of changeover on non-school days the father cause changeover to occur at the nominated contact centre in Order 5(a).
(7)In the circumstances that nominated contact centre is not available the parties shall meet at the McDonalds Restaurant in … and the parties are permitted to have one adult, other than the paternal grandparents, present with them at changeover.
(8)That each of the parties are restrained from:
(a)Denigrating the other party to the children or in the presence of the children.
(b)Denigrating any member of the other party’s family to the children or in the presence of the children.
(9)That the father shall within 14 days obtain a referral from his GP to attend upon a mental health professional nominated by the Independent Children’s Lawyer and attend all appointments and comply with all recommendations.
(10)That the father shall make arrangements at the children’s schools to ensure that the mother is provided with the following documents:
(a)A copy of all school reports for each child.
(b)A copy of any newsletter released by the school.
(c)Notification for school activities.
(d)Notification of parent/teacher nights.
(e)In the event of the children being taken from the school for an emergency, remedial or correctional treatment that the mother be informed as soon as practicable.
(11)That in the event of any of the children suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable.
(b)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
(c)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.

The Independent Children’s Lawyer, in summary, seeks the following Orders:
(1)That the father have sole parental responsibility for the children.
(2)That the children live with the father.
(3)That [N] spend time with the mother in accordance with his wishes, and at times separate to [M’s] time with the mother.
(4)That [M] spend time with the mother as follows:
(a)Once per month at a contact centre in the Sydney Metropolitan area, nominated and arranged by the mother, for as long as the centre allows, for a period of 6 months.
(b)After 6 months of time at the contact centre, [M] to spend supervised time with her mother every four weeks on an agreed day from 10 am to 4pm, together with another adult chosen by the mother, who shall be present during the time period in a monitoring role.
(5)For the purposes of all time periods referred to in these Orders, the father is to transport [M] to the changeover venue for the time with her mother and collect her at the conclusion, and such changeovers are to occur at the contact centre, or if unavailable, a place nominated by the mother.
(6)The mother is to telephone the father each week to speak to the children on a day and at a time agreed between the parties.
(7)The father is to do all he can to ensure that [V] and [N] do not undermine [M’s] time with the mother by speaking negatively about the mother or discouraging [M] from spending time with her mother in any other way.
(8)The parents are to communicate by email, and by phone calls and text messages, and are to provide each other with their mobile and landline numbers for that purpose.
(9)That the father do all things necessary to ensure that the mother is permitted to attend any school events at [M’s] school, at which parents are normally permitted to attend.
(10)That the father do all things necessary to ensure that the mother is entitled to receive copies of school reports, school newsletters and any other documents normally made available to parents, from the children’s schools.
(11)That the father keep the mother advised of his intentions in regards to the children’s schooling and take account of any information the mother provides to him in that regard.
(12)That the father advise the mother of any medical treatment of the children, other than minor illnesses, and advise her of all details of the children’s treating doctors or therapists, and authorise such doctors and therapists to provide the mother with full information about their treatment of the children.
(13)The parties are to continue to attend on [Ms B] or, if she becomes unavailable, any person she nominates, for counselling for as long as she recommends they continue to do so.
(14)The father is to do everything he can to ensure that neither he nor any member of his family speaks about the mother in a negative way in the presence or hearing of the children.
(15)The mother is not to speak about the father or his family, in a negative way to or in the presence of any of the children.
(16)The father is to attend counselling with a mental health professional familiar with Family Court matters to give him a better understanding of what has happened to himself and the children, from a perspective other than the father’s, and he is to provide such counsellor with a copy of Dr [R’s] report.
(17)The mother is to continue to see her counsellor for as long she recommends.
(18)The mother is to communicate with the children by sending cards and letters, and the father is to ensure they are treated respectfully in his home and is to allow the children to respond in a similar manner.

The Evidence

Behaviour and alleged violence during the marriage

The father deposes that the mother and paternal grandmother used to perform the household tasks together. He states that the paternal grandmother was mainly responsible for preparing the family meals and the other tasks were shared between them. He states that the mother usually took the children to and from school each day, and sometimes the paternal grandparents would do so.
The mother asserts that during the course of the marriage the father sought to and did to some extent exercise control over her by discouraging her from getting employment, obtaining citizenship, a driver’s licence, a telephone and friends. She further asserts that this control was actively supported by the paternal grandparents. The mother deposes that the paternal grandparents, in particular the paternal grandmother, were a source of continual tension between her and the father.
The mother also deposes that the father was verbally and physically abusive towards her throughout the marriage. She states that the abuse was often in the presence or hearing of the children.
The mother deposes that on more than one occasion the father grabbed her by the neck and hit her head against the wall, or he pushed her on the ground or the bed and said to her words to the effect, “I am going to kill you one day fucking bitch”. The mother’s evidence is that on occasions the paternal grandmother would hold her arms behind her back whenever the father would grab her.
The father denies that the mother’s life was restricted during the marriage. He deposes that the mother did not want to work in paid employment during the marriage and was content caring for the children.
The father conceded in his cross-examination that moving to Australia would have been a big adjustment for the mother to make, but qualified this by stating that she already knew the language, was well educated and she could easily

re-adapt her diploma from Macedonia in teaching to qualify her for the same work in Australia. The mother was a qualified teacher in Macedonia, and undertook one year of voluntary teaching.
The father deposes that he encouraged the mother to undergo an English language course and that she completed a Diploma in 1997, and then did a Diploma course in childcare through a private college in 1998. The mother’s evidence is that she currently holds a child care certificate from a business college in western Sydney.
The father deposes that he did not think it would be difficult for the mother to live in a house with the paternal grandparents and sister-in-law, and states that it is quite common in the Macedonian culture and that the mother knew the arrangements prior to their marriage and accepted them.
It was the father’s evidence that he believes tension only arose between the mother and the paternal grandmother because the mother did not like the way in which the paternal grandmother intervened when the mother physically disciplined the children.
The father’s evidence is that the parties had a joint account and that he did not restrict the mother’s access to that account. He states that they received a family allowance from Centrelink and this was deposited into the joint account. His oral evidence was that two cards were issued for their joint account and that one of the cards was given to the mother; however he could not say whether the mother ever withdrew money from this account.
The mother deposes that the father excluded her from all the decisions regarding the children, and that he and the paternal grandmother made the decisions with respect to schooling, health and sport. The father denies that he excluded the mother from decision making in relation to the children and asserts that all decisions were made jointly. The paternal grandmother denies that she was ever involved in the decision making for the children.
The father deposes that the mother chose not to have a driver’s licence and did not want to learn to drive.
The mother deposes that the paternal grandmother would often complain about the mother and the children to the father which caused the father to verbally abuse the mother and the children.
The mother’s evidence is that the paternal grandmother did not allow the children to bake cakes, play with toys in the television room and that they were only allowed to play in the converted laundry which was small and hot. The paternal grandmother denies this.
The mother deposes that the paternal grandmother would often say to her words to the effect, “You are not supposed to clean after the children, but to stop them making a mess in the first place”.
The mother’s evidence is that there was stress in the household following the stillbirth of their child for which she was continually blamed by the father and paternal grandmother. She deposes that after the birth of the child M she began to feel depressed and told the father that she needed help which the father ignored. The paternal grandmother denies that the mother was blamed for the stillbirth of their son.
It is the mother’s evidence that she has witnessed and heard the paternal grandparents call the children names if they did not agree with them, such as “stupid”, “animals”, “spastic” and “worst children in the world”. The paternal grandmother denies this.
The mother deposes that she has witnessed the father say to the children words to the following effect, “If you do that again, I will kill you, I will smash your head”.
The mother’s evidence is that she has witnessed the father and paternal grandmother hit the children forcefully on many occasions.
The mother deposes that the father and paternal grandparents encouraged physical discipline of the children but that she did not believe in this method.
The mother also states that the paternal grandmother would pressure her to smack and physically discipline the children, and told her that the children would misbehave if she did not physically discipline them. The mother said that she would then smack the children so that the paternal grandmother would not pressure her and abuse her about being a bad mother.
The father deposes that throughout the marriage there were many occasions where the mother lost her temper and became violent towards members of the family. The father states that he and his family suggested to the mother that she should seek help for her behaviour.
The father deposes that the mother has a short temper in her dealings with the children and states that she has also been physically violent towards them. He says that the mother’s outbursts arose from fairly simple disputes such as the children not eating all of their dinner, not going to bed when first asked, or doing their homework.
The father denies that the paternal grandparents were ever abusive or physically violent towards the children and states that they have a fantastic relationship with the children. He deposes that the paternal grandparents were often concerned by the mother’s treatment of the children and the paternal grandmother would often try to intervene when the mother was hitting the children or physically disciplining them.
The father admits that from time to time the parties argued, but denies that he was verbally and physically abusive towards the mother during the marriage.
The father deposes that in early 2009 the mother smacked the child V across the face with a full open hand with a lot of force and that V almost stumbled. He deposes that the mother frequently hit V around the head notwithstanding that, in approximately 2007 or 2008, they discovered after seeking medical advice for V’s headaches that she had a cyst on her brain. The mother denies hitting V over the head.
The father deposes that the mother frequently dragged the child N off the couch if he was disobeying her. He states that on one occasion in August 2009, N was taking too long to go to bed one evening and the mother lost her temper. He states that she put her hand around the front of his throat, pulled him physically off the couch and dragged him down the hallway. The father’s evidence is that N had bruises on his arm from her fingers. The mother denies grabbing N by the throat.
The father did not mention in his affidavit or his questionnaire for the Independent Children’s Lawyer that the mother slapped N across the face or on the head. In his oral evidence he stated that this only happened on one or two occasions and that the main things she did was grabbing N by the throat and arms and dragging him down the hallway.
The father also deposes that the mother used to force-feed the child M. He states that sometimes when the mother had difficulty feeding M the mother would hold M’s mouth and neck while feeding her, and that she would choke her. He also deposes that to stop M crying, the mother would hold her hand over M’s mouth. The mother denies ever force-feeding M and stated that out of all the children she was the least fussy about food and it was a joy to see her eat all types of food.
It is the father’s evidence that after the parents separated, V told him of an incident which happened when the children were younger pre-separation, where V and N played a game called “Kings and Queens” with the mother on the back porch. V allegedly told the father that she and N were dressed up as a king and queen and that the mother allowed them to stand on a table. V reported to the father that she fell off and hit her head on the concrete and suffered a heavy blow to the head. V told the father that the mother said to her, “if you repeat this to your father I will kill you”.
The father’s evidence is that V did not report this incident to the specialist when they diagnosed her with a cyst on her brain because she was too scared. The father deposes that he had organised another appointment with the specialist, which was to take place after the trial finished, after V told him this story to diagnose whether the fall could have caused the cyst.

The father was critical of the mother allowing the children to play on a table, and that it was more than poor judgment on the mother’s part and she should have anticipated that the children would fall.
The father states that there may be a possibility that this game may have caused V’s cyst.
In fact, in his Parenting Questionnaire filed on 8 March 2011, the father said that V’s cyst was a result of this fall. It was the father’s evidence that he has not conveyed this belief to V and has always reinforced the idea that her cyst is a birth defect.
The father conceded in cross-examination that there were strengths in the mother’s parenting, including her organisation skills, being able to do good hairstyles for the girls, and basic playing with the children. He also stated that there were nice times with the mother including reading books, playing with dolls, taking the children to the park, going out shopping and organising birthday parties for the children, including food, entertainment and cake.
The mother’s evidence is that she did not grab N by the throat, but that on occasion when N fell asleep on the couch, she would stand him up and guide him to his bedroom. She demonstrated that she would stand behind him, place her hands on his shoulders and walk him to his bedroom. The mother deposes that the father used to grab N by the neck, not her. She states that the paternal family made N believe that she was the one who did this.
The mother admits that she had smacked N maybe once or twice, but that it was only ever lightly on the bottom. She states that N’s fears of abuse are irrational and that he is just copying V as he has always copied her.
The mother denies being physically or verbally abusive towards the children. The mother concedes that she has “only reluctantly lightly smacked the Children if they misbehave…this occurred on no more than four occasions during my marriage”. The mother also admits to smacking V lightly on the bottom about three or four times.
In the child N’s Electronically Recorded Interview with the police, N states that the mother does get angry with him and that when she gets angry with him she grabs him by the neck and starts to choke him. N is shown to place his hands around his neck in a choking fashion. He states that she “grabs hard” and also feels like she is “squeezing”. He states that the last time she did this was in the previous year on Christmas Eve, being 2008. N says that there was one time when he almost vomited after she did this. He also says that she had done this to him about twenty times.
N states that the mother does not grab him by the neck anymore as “I’m used to it” and it “doesn’t hurt me anymore” so now she slaps him. He states that she slaps him on the tummy and the face and that the last time this happened was three days previously when she slapped him about five times on the same cheek. N could not recall the reason which caused the mother to slap him. N states that she usually keeps slapping him until he starts crying.
The father states that he has told V that the mother loves her and she is her mother, but that V refused to accept this.
The father also deposes that he has told V a number of times about not telling the child M bad things about the mother, and that it is not right and she should not do that. He asserts that he told V that the experiences are her own and unfortunately not all happy.
The father also asserts that he has reminded the children of the positive times with the mother and recently went through one of the old photo albums with the children.
It appears that the father has made attempts to reassure the children, in particular V and N, that the mother is not a bad person; however these do not appear to have been successful attempts. He states that things in the children’s lives are settling down as a result of not seeing the mother anymore.

Evidence of the Paternal Grandmother

The paternal grandmother’s evidence is that, together with the mother and the father, she used to look after the children. She deposes that she used to help the mother on a daily basis with their care and that she cooked most of the meals for the whole family.
The paternal grandmother states that it was the mother’s responsibility to take the children to school and the father’s responsibility to take them to extra-curricular activities.
The paternal grandmother asserts that she used to encourage the mother to get her driver’s licence and a job. She deposes that she thought getting a job would give the mother an opportunity to get out of the house, gain some independence, earn money and make new friends.
The paternal grandmother’s evidence is that she always observed the father encouraging the mother to have friends, socialise, study, drive and work.
The paternal grandmother gives evidence that the mother and father used to fight and argue over the children like any husband and wife do. Her evidence is that the mother used to smack the children sometimes, and that she would say to the child N, “you’re a dumb dumb like your father” and that’s when they used to argue.
The paternal grandmother deposes that the mother used to hit the child V on her head many times, and that this was despite the fact that V has a cyst on her head.
She also asserts, that when N was doing his homework, they used to argue all the time and the mother used to take hold of him by the throat, strangling him. The mother used to dig her fingers into his arms. She deposes that the paternal grandfather also saw the mother “strangle” N.
The paternal grandmother deposes that she did not always tell the father about these incidents as she did not want the parents to argue between themselves.
She deposes that she observed the mother to lose her temper at the children, yell at them in a loud voice and smack them many times. She also states that the mother would lose her temper at her, the father and the paternal grandfather and would yell at her “you are stupid” or “you stink”.
The paternal grandmother states that there were never any restrictions placed on the mother in the household. She also states that it was not true that the father was verbally and physically abusive towards the mother. She also denies ever holding the mother’s arms back when she was having a fight with the father.
The paternal grandmother states in her oral evidence that there were some bad and some good things about the mother. She says that the mother used to breastfeed the children, look after them, take them to school and help with their homework. Whilst there is more balance in the paternal grandmother’s evidence than in that of the paternal grandfather, the Court is left with the impression that some of it might have been the product of exaggeration.

Evidence of the Paternal Grandfather

The paternal grandfather’s evidence is that he had seen a number of violent outbursts from the mother during the course of the marriage. He deposes that he has seen her often lose her temper over small matters and be physically violent towards the children.
The paternal grandfather gives evidence of an incident shortly before Ms K’s wedding in September 2009. He states that he was outside cleaning the barbeque and heard the back door bang loudly and saw the child N come outside. He deposes that the mother came outside also, approached N and put her hand around the front of his throat and physically lifted him off the ground. He states that the mother was screaming at N saying “You have to eat your food” and that she let him go once she saw the paternal grandfather approaching her. The mother denies this incident ever occurred.
The paternal grandfather deposes that he has often seen the mother grab N by the neck or arm and drag him if he is disobeying her. He also states that he has seen the mother slap the child V around the head and lose her temper with her over small incidents.
The paternal grandfather states that he would be concerned for the safety of the children if the mother was allowed to have them in her care without supervision.
The paternal grandfather cannot indicate any positive things about the mother except to say that she gave birth to the children. He states that he did not think she was a good mother when she lived with them as she was always screaming, breaking things and would give the children the wrong food and food they did not like, as well as the fact that she was hurting the children. The Court is not confident that there is no element of exaggeration for forensic advantage in the paternal grandfather’s evidence.

Evidence of the Paternal Aunt, Ms K

The paternal aunt’s evidence is that she has always found the mother to be of a volatile nature and has seen many incidents involving the mother which have caused her concern over the years.
The paternal aunt deposes that the child V was choked by the mother and states in her oral evidence that the mother had done this a couple of times. It is submitted by the Independent Children’s Lawyer, and the Court notes, that it is not mentioned by any other family member in their evidence, including V in her account to Dr R.
It is the paternal aunt’s evidence that she frequently saw the mother grab the child N and this would occur on occasions where N was not listening to the mother, when he was eating, and if he was asleep she would “drag him away”. She states that she saw the mother also do this to V but not as much as she did it to N. The paternal aunt also deposes that she observed the mother grab N by the throat if he was misbehaving.
The paternal aunt’s evidence is that the mother was quite rough with the child M at feeding time; she would brace her in and grab her by her mouth/chin to force-feed her and shove the food in M’s mouth. She states that if M tried to move, the mother would squeeze her harder and dig her nails in. She also deposes that if M did not fall asleep, the mother would shake and rock her and say in Macedonian words to the effect of, “I can’t take her anymore, she’s driving me crazy, I want to pick her up and slam her on the ground”. She states that she would then see the mother take M into her room and cover her mouth with her hand to stop her crying and muffle her cries.
The paternal aunt also asserts that in between feeding, the mother would grab M by the throat to move her away and then drag her by the hand, and if M did something wrong she would grab her by the throat.
It was the paternal aunt’s evidence that if the children did not listen to the mother, she would lose her temper very quickly, grab the children by their arms, dig her nails into their arms and shake them.
The paternal aunt’s evidence is that in around November 2008 she observed the mother hit V across the head. She states that when she approached the mother about this the mother became angry, grabbed a small kitchen knife with a very big point at the tip and threatened the paternal grandmother with it. The mother denies ever threatening the paternal grandmother with a knife or ever grabbing a knife in a threatening way.
The paternal aunt gives evidence that there were aspects of the mother’s parenting where she was doing a good job and states that the mother loved the children, she would help them with their homework, take them to school and play with them.
The paternal aunt deposes that she thinks it is important for the children to spend time with the mother but that it should be supervised contact as she has witnessed the mother lose her temper very easily and can see this happening again, and also because of the violence she had witnessed.

The 29 October 2009 incident

On 29 October 2009 an issue arose between the mother and the child V in relation to tuna sandwiches that the mother had prepared for the children’s school lunch.
It is the father’s evidence that V complained about the tuna sandwiches being wet, soggy and smelly and being hungry at school. She asked the father to write her a lunch order which he did for both V and N. The father asserts that the mother took the lunch orders and ripped them up. He admits that he had not consulted the mother prior to writing the lunch order. He accepts in cross-examination that the mother may have found these actions as not being supportive of her.
The paternal grandmother also gives evidence that she was in the kitchen when she heard V and the mother arguing about the sandwiches and saw V place the sandwich in the bin. She deposes that “to fix the situation” she offered to make the children another sandwich and that the father said that there was no time and he would write them a lunch order.
The paternal grandmother’s evidence is that the mother had prepared the tuna sandwich the afternoon before at 4.00 pm and that the children did not want to eat this sandwich. She also states that the mother had to ask the children whether they wanted to eat tuna. She states that the mother had told the children that they were going to eat tuna for one week or nothing. The paternal grandmother concedes in her cross-examination that it is appropriate for parents to prepare all kinds of food for children to get them to eat a variety of food.
The mother deposes that when she took the lunch order away from the father she had the intention of explaining to him her attempt to provide a healthy lunch for V. She deposes that the father raised his voice and started verbally abusing her and said words to the effect of, “My kids are not going to be like you stupid bitch and eat grass. As long as they can eat meat they don’t need anything else”.
The father asserts that the mother was yelling at him and the children and picked up the father’s mobile phone and ran outside the house via the back entry. He states that she looked as though she was going to smash his phone on the ground. The father asserts that he grabbed her arm in an attempt to grab the phone and that she started yelling abuse at him and scratching his arms and legs. It is the father’s evidence that at this point the paternal grandmother came outside and tried to separate them by standing in between them and he managed to get the phone off the mother. The father asserts that the mother attacked the paternal grandmother.
It is the mother’s evidence that she took the father’s phone in an attempt to threaten to call the police, but asserts she was not going to call the police. She also states that she wanted to take the argument outside the house so that the children could not see what was going on.
The mother asserts that the father pinned her to the ground in an attempt to grab the mobile telephone and that the paternal grandmother helped him in pinning her to the ground. The mother deposes that she began to scratch and bite in an attempt to defend herself. She states that the paternal grandmother bit and scratched her as well.
The paternal grandmother’s evidence is that she saw the mother kicking the father’s leg and that she tried to reason with her and said to her, “Your mother would be very upset if she saw you behaving like this”. She deposes that after this the mother turned towards her and struck her several times and also bit her. She states that she ended up with bruising on her chest, shoulder and arm.
The father asserts that the mother then ran back inside the house and smashed a glass cookie jar in between the hallway and the kitchen. He asserts that there were glass shards “throughout the entire house” and that the child M was standing in the hallway at the time. The paternal grandmother also asserts that M was nearby and saw it happen. The mother asserts that the children were in the television room at the time and denies seeing M in the hallway when she began to clean up the glass.
The father’s evidence is that after smashing the glass jar the mother was yelling and out of control. He says he thinks the paternal grandmother yelled at N and M to not enter the kitchen as there was glass on the floor.
The father asserts that he threatened to call the maternal grandmother in Macedonia if the mother continued with her behaviour. He states that the mother respects her mother and listens to her and thought maybe she could talk some sense into her. The father asserts that the mother yelled, “If you call my mother I will stab you and your parents” and then proceeded to pick up the glass shards whilst barefoot with her bare hands. The father asserts that he told the mother to stop as she was cutting herself with the glass.
The mother asserts that breaking the glass cookie jar was an act of desperation. It was her evidence that the paternal grandfather had always blamed her for breaking things, for example the gutter, which she hadn’t done. She deposes that the paternal grandfather was again blaming her for breaking things and swore at her. She said she thought if she gets blamed for breaking things which she does not do, then she would actually break something deliberately.
It is the mother’s evidence that she attempted to vacuum the glass shards from the cookie jar but that the father had turned the power off and so she began using her hands to clean up the glass. The mother asserts that the paternal grandfather emptied the glass in the bin back onto the floor.
At this point the father began filming the mother as she was cleaning up the glass, cutting her hands and bare feet, and the mother tried to grab the video camera off the father. The paternal grandmother attempted to restrain the mother and it is asserted that the mother started digging her fingernails into the paternal grandmother’s arms.
The paternal grandfather contacted the police.
The father admits to getting his video camera and recording the mother after she broke the glass cookie jar, and his explanation for this was that in the local area the men are usually blamed and he wanted to record the glass on the floor in a way to vindicate himself. The father cannot admit that it was insensitive of him to film the mother in this way and insisted that he was trying to protect himself from being handcuffed by the police. The father states that he had “blood all over him” and he needed to prove to the police he did not do anything. After further cross-examination, the father states that he had a little blood on his singlet near the shoulder.
The paternal grandmother admits to also getting a video camera from her room but states that she did not know how to record. She deposes that the mother grabbed the camera from her and pushed her to the ground and bit her on the chest. The paternal grandmother agrees that the mother would have been upset to see two cameras facing in her direction, however she states that she should have approached it in a nicer way; not by fighting and arguing.
The father also asserts that at this time the mother was punching and biting the paternal grandmother. The paternal grandmother deposes that as she tried to restrain the mother she grabbed her arms and squeezed them hard.
The mother admits to scratching and biting in an attempt to defend herself and asserts that the paternal grandmother also bit and scratched her.
The father and paternal grandmother assert that after putting the glass in the garbage bin, the mother emptied the garbage on the paternal grandfather’s head. The mother admits to doing this but denies there was any glass in the garbage bag. It is her evidence that the paternal grandfather had emptied the glass back onto the floor after she had cleaned it up and that she got upset about this and then poured the garbage, containing vegetable peels and other rubbish, on the paternal grandfather’s head. The mother admits that she was glad she had done this and states it was a little dose of his own medicine.
The police attended and the mother was charged with assault and damage to property. The mother received a Section 10 Bond for the assault charge and was otherwise placed on a one year good behaviour bond.
The paternal grandmother asserts that after the police arrived the mother continued to scream, “It’s your fault I do this stuff”.
The police also took out an Apprehended Violence Order (“AVO”) on the father’s behalf protecting him. The children and paternal grandparents were not placed on the AVO. On 4 December 2009 the mother consented to the AVO being made against her for a period of twelve months on a without admissions basis.

The mother also applied for an AVO against the father and the paternal grandparents. The father consented to the AVO being made for a period of two years on a without admissions basis. The mother deposes that as a sign of goodwill she did not follow through with the AVO against the paternal grandparents.
Following this incident, the police took the mother to a women’s refuge.
The mother states that she did not recall the child N entering the room to try to break up the fight, and states that she does not think that this happened. She states that they were in the hallway and that N was near the door to the grandparents’ room and asked them from a distance to stop fighting otherwise he would join in. She asserts that she and the paternal grandmother were on the other side of the hallway and not close to N.
It was put to the mother that N had reported to the police that she was swearing. She denies swearing, stating that she never swears and may use other words but not swear words. It is her evidence that N must have heard somebody else swearing and mistaken the voices. She states that the father and paternal grandmother swear and that maybe N heard the paternal grandmother swearing.
Exhibit 6, being photographs of the injuries caused to the paternal grandmother, was shown to the mother in cross-examination. The mother admits to biting the paternal grandmother, and asserts that the paternal grandmother bit her as well. The mother denies causing some of the injuries to the paternal grandmother, being a bruise to her upper thigh and a bruise on her stomach. The mother asserts that the paternal grandmother may have inflicted them upon herself. The Court does not accept this assertion.
It is the mother’s evidence in cross-examination that the injuries inflicted on the paternal grandmother were not serious enough to require medical attention. She admits to inflicting these injuries in self-defence. She accepts that the paternal grandmother may have been in pain and traumatised to a degree, but states that if she was that traumatised she would not have thought about getting a video camera and recording the mother. The bruising in the photographs appeared extensive and severe.
The mother also states that, working in aged care, she knows that it is very common for an older person to bruise easily without pain and asserts that the paternal grandmother may have felt pain in the instant that she was bitten, but that the pain would have gone away quickly after that.
The mother admits to digging her fingernails into both the father and paternal grandmother in attempts to grab the video cameras off them. She denies ever having long nails, and asserts the injuries caused as shown in the photographs in Exhibit 6 were with short nails.
It is the mother’s evidence that the children were in the television room at the time of the fight and does not believe that M came out from the television room. She accepts that it is possible that M heard the fighting.
The mother states that she did have concern for the children at the time of the fight and that is the reason she wanted to take the argument outside. She admits that this incident would have had a psychological effect on the children, and states that it should not have happened and she should not have broken the glass cookie jar or poured the garbage over the paternal grandfather’s head.
The mother states that in hindsight she would have done things differently. It is her evidence that her reaction on this day was in response to everything that had happened over the twelve years of marriage. She admits to breaking down that day but denies that she lost control completely. She states that she was feeling under a lot of pressure and stress at this time, in particular in relation to her father’s illness.
The mother states that the things causing her stress at this time were that she had three children; there were the preparations for the paternal aunt’s engagement, kitchen tea and wedding; they had the paternal grandmother’s sister from Macedonia living with them at the time; she was toilet training the child M; she was weaning M off breastfeeding and teaching her to feed from the bottle; and her father was sick in Macedonia and the father did not allow her to take the children to visit him. She also states that with the paternal grandmother’s sister living with them, the paternal grandmother had more power and control over her.
The mother states that she received no support from the father or paternal grandmother; she was always criticised; nothing she did was good enough; and no one ever thanked her except for the paternal aunt, Ms K.
It is the mother’s evidence that she had the least amount of control at the point that she smashed the glass cookie jar, and was also almost out of control when she emptied the garbage onto the paternal grandfather.
In the child N’s Electronically Recorded Interview, he tells the police that during this incident the mother was scratching the father on his legs, and was grabbing the grandmother’s hair and scraping her arms and chest with her nails.
N also states in his Electronically Recorded Interview that he saw the mother and paternal grandmother fighting and that he jumped in between them to try and pull them apart. He states that he managed to stop them fighting and that the mother started cleaning up the glass and was swearing at the father and paternal grandparents.
N is shown in the Electronically Recorded Interview to ask if the mother was coming back home, which was answered in the affirmative by the police officer. It appears that the child showed no fear that the mother would be returning home.
The father concedes in his cross-examination that at the time this incident occurred he accepted that the mother was stressed about the maternal grandfather dying and about the father not letting her take the children to Macedonia.

The Maternal Grandfather’s illness

It is the father’s evidence that he became aware of the mother’s father’s (“maternal grandfather”) illness sometime in the middle of 2009. He asserts that he was not aware of his condition but that he was told by the maternal grandmother that he required a heart operation. He asserts that the maternal grandfather told him over the telephone not to worry about him and to care for the mother and the children.
The father asserts that the mother asked to go visit her father in Macedonia and asked to take the children with her. It is the father’s evidence that he told the mother that she could go but he did not want her taking the children with her. The mother denies this and asserts that the father said that she could not go to Macedonia and never gave her the option to visit her father.
The father accepts that his response in not allowing the children to go to Macedonia may have been stressful for her but states that he was allowing her to go on her own and that this would not have been stressful for her.
The father also accepts that given she was living in a stressful household with the preparations for his sister’s wedding, had no driver’s licence or job, knowing that her father was ill and required a heart operation, and not being allowed to take the children to Macedonia, would have been stressful for the mother. However he qualified this acceptance by stating that in any case he still allowed her to go.
When asked what the reasons were for denying to the mother the right to take the children to Macedonia, the father stated that it was because Macedonia is a third world country and the children were too small.
It was put to the father that he did not state that the reason was because the mother could not be left alone with the children, and he was asked whether it was possible that he has exaggerated the allegations of violence against the children, which the father answered in the negative.
The paternal grandmother gives evidence that she was not aware that the maternal grandfather was dying at the time of the 29 October 2009 incident. She states that she knew he had been in hospital and was going to have an operation but did not know anything else. It is her evidence that had the mother told her what was happening then they may have helped her.
The father’s evidence is that he was not aware of when the maternal grandfather died and states that he had never been formally told of his death.

Contact with the children post separation

The father deposes that following separation he wanted to start negotiations with the mother about what contact she would have with the children, but that because she was living at a women’s refuge at the time he was unable to forward any correspondence to her as her address was unable to be provided to him.
The mother’s evidence is that following separation she tried to contact the father numerous times to arrange to see the children, but that the father did not respond.
The mother saw the children on 13 December 2009, for an agreed period of two hours at McDonalds. The paternal aunt and her husband took the children to McDonald’s and waited nearby for the duration of the visit.
The paternal aunt deposes that the mother appeared “virtually emotionless” when she first saw the children, and that at times she observed her to be very animated, looked angry and her face became red. She asserts that whilst she could not hear what the mother was saying, she could hear her voice above the noise of the restaurant and the music that was playing.
She also states that the child M at times kept looking at her and that the mother would pull her arm so she would stop and then appear to be yelling at her.

The paternal aunt’s evidence is that at one point M was screaming out her name and was waving at her.
The father deposes that when the children returned home from seeing the mother, the older children said to him words to the effect of, “Dad you should hear all the bad things mum was saying about you”. He states that they repeated some of the conversation they had with the mother and said the following:
“Mum said she’s going to live with us no matter what.”
“She said [Ms K and her husband] never loved us or liked us and when they have their own kids they’ll never want to see us again and won’t do anything for us.”
“Because your dad lives with his mother that’s why you should live with your mother.”
“[Ms K], you and your grandparents are evil and that house is evil.”
“Your grandparents are going to Court for bashing me up.”
“Dad made me hit you.”
“Your grandparents made me hit you.”
The paternal aunt’s evidence is that V and N made the above comments in her presence.
The father deposes that V also made the following comments:
“Mum was speaking in a really loud voice and while we were eating everyone heard her in the McDonald’s and she kept saying everything over and over again. People were staring at us because we were upset and she kept saying all of these things and we got embarrassed because everyone was watching and listening to Mum.”
“Mum said if you say you want to live with me then you can do whatever you like whenever you like and you’ll never get into trouble. I’ll never shout at you or hit you. You can do whatever you want.”
“She also said we shouldn’t go with you on our Christmas holidays.”
“Mum said that her and her Mum are normal and you and your parents are crazy. She said to us that you say good things only so we love him and want to be with him.”
“Mum was pulling [M] by the arm because [M] wanted to go outside to [Ms K] and spend time with her and she wouldn’t let her go.”

The paternal aunt deposes that V and N also said, “We didn’t really get much of a chance to speak to her. She wasn’t very interested in what we wanted to say. She didn’t ask us how we were, if we were upset, how school was, about soccer, tutoring, what [M’s] been learning lately – nothing”.
The father deposes that as a result of the events on this visit that V and N were reluctant to spend more time with the mother. His evidence is that V repeatedly said to him, “I don’t want to go and see Mum. I am scared she will hit us. Mum will be angry with us”.
The mother’s evidence is that the children were very happy to see her and that M hugged her tightly and refused to let go at the end of the visit. She denies making any inappropriate comments to the children.
The mother denies saying any bad things about the father and the paternal family on this visit at McDonalds. The mother states that she did not call the paternal family “liars” but that she did say to the children that “you’ve been told lies”. She states that it was the truth to tell the children what they had been told was a lie, and that it was not healthy for the children to be told untrue stories.
It is the mother’s evidence that M wanted to show the paternal aunt the present that the mother had given her and that she allowed her to do that, but that M did not spend time with the aunt.
The mother’s evidence is that her voice is normally loud and high pitched and that she was very excited to see the children and was hugging and kissing them and talking constantly. She deposes that she did not notice any people staring at them.
The father’s evidence is that the mother would call the father’s home to speak to the children, and that her telephone communication was not restricted but that it became problematic from the outset.
The father deposes that V and the mother spoke regularly on the telephone; however he noticed that they argued with each other. He states that V was and remains very defensive about him and the paternal grandparents in conversations with the mother.
It is the father’s evidence that the mother’s legal representatives at the time requested the mother spend time with the children for two hours on Sunday,

20 December 2009. The father deposes that he was not prepared for the mother to have unsupervised contact with the children given the comments made after the previous contact visit.
The mother did not see the children from 14 December 2009 until 7 February 2010. The father took the children on holidays to the South Coast during the Christmas school holiday period. The mother deposes that the father did not consult her about taking the children on a holiday.
Pursuant to Orders of 27 January 2010 the children spent time with the mother on Sunday, 7 February 2010 from 10.00 am to 5.00 pm. The father deposes that when he told V and N on the Friday that they would be seeing their mother, they both got upset and N said, “No, I don’t want to go” and locked himself in the bedroom. He also states that V started to cry and said, “I don’t want to go Dad and you can’t make me”.
The father’s evidence is that on the morning of 7 February 2010, N and V again refused to spend time with the mother, and deposes that V hid behind her computer desk and wrote a letter stating that she did not want to see the mother. It appears that the father was able to encourage the children to see the mother.
The father deposes that when he collected the children on 7 February 2010 that both children related to him matters they had observed or conversations they heard whilst in the mother’s care. His evidence is that V made the following comments:
“There was no baby chair in the car for [M].”
“There were men’s clothing all over the house. There were jeans and underwear in the bathroom and men’s clothes in mum’s room. There’s also men’s clothes in [N’s] room.”
“Mum said to us, ‘Your father and grandmother don’t like you.’”
“Mum said you are dumb and stupid.”

The father deposes that the children also overheard the mother say to the child M, “If you stay with Mummy you will be better off and not go home to live with Dad and your grandparents”. He also states that one of the children said to him, “Mum took [M] outside and I heard her saying bad things to her about you and our grandparents. One of the things I heard her say was ‘They don’t love you and you should live with Mum’”.
The mother denies mentioning the father or the Court proceedings to the children during their time together.
It is the mother’s evidence that she did have a baby chair in the car for M.
The mother deposes that her cousin Ms D, who she reconnected with after twelve years, came over with her three children and states that all the children got along and played together.
The father’s evidence is that the next contact visit was on Sunday, 14 February 2010, and again both V and N indicated that they did not wish to see the mother. The father asserts that he encouraged the children to go. The father deposes that V and N made similar comments to the above about the mother.
The father also deposes that the children complained that the mother did not spend a lot of time with them as she had her friends Ms J, Ms D and Ms Y and all their children there, and that the children played amongst themselves while the women chatted to each other.
The mother’s evidence is that she took the children shopping and bought snacks and a small present for each of them. She deposes that she told the children she had lunch at home for them but that V insisted on eating Oporto, and so to avoid any arguments she bought Oporto for V and N.
The mother deposes that her friend Ms J, who she met at the refuge, came over with her children, shortly after they returned from the shops. Her evidence is that V refused to play with them and stated, “I am not talking to any Arabs”. She states that V and N refused to say hello or play with the children.
The mother’s evidence is that Ms J made fish and rice for lunch and she and M ate this for lunch as the older children had already eaten.
The mother deposes that Ms D and her three children also came over shortly after lunch, and that the children played together on the Nintendo Wii.
The mother’s evidence is that V and N refused to let the mother hug or kiss them at the conclusion of their time together. She states that M told the mother she wanted to stay, hugged her tight and began to cry.
The mother deposes that she heard N and Ms D’s son S have the following conversation:
[Child N]: Would you care if your mother dies?
[Child S]: Of course, I love my mummy.
[Child N]: I don’t care, I have my dad.
The next contact visit was on Sunday, 21 February 2010. The father deposes that he had similar difficulties persuading V and N to spent time with the mother but that they agreed to do so reluctantly. It is the father’s evidence that when he collected the children, both V and N were very upset and came running to him.
The mother deposes that she took the children to the shops to buy food and party decorations for M’s birthday party which she had organised for the following weekend. She deposes that shortly after arriving home her friend Ms Y, the mother of one of N’s classmates, and her three children came over to her home.
The mother’s evidence is that N and Ms Y’s boys played Nintendo Wii together and then played with building blocks in N’s room. She deposes that V did not want to play with the boys and that she saw V push the boys from the chair and snatch the remote control from their hands. Prior to this, the mother states that V was in her room trying on new clothes the mother bought for her. The mother states that M spent most of the time with her.
The mother deposes that V and N again refused the mother to kiss them or take photographs of them.
The mother’s evidence is that at changeover M was hugging her tight and said, “I want to stay with mummy, I don’t want to go”. The mother deposes that M had toys that the mother had bought her, and she saw the father throw these toys on the street when he put M in the car.
The father deposes that V said to him words to the following effect:
…Mum started talking to us about you. She said you never did anything for us, you were bad and evil and that she’s the only one who loves us and takes care of us. [N] and I both said to her ‘No, that’s not true’. Mum got really angry and pushed us both hard up against a wall. She hit us both and grabbed us by our arms. She scratched our arms and dug her nails into them. She also turned on [M] and pushed her.

It is the father’s submission that while the children have not seen the mother for almost two years, they are well settled and have recovered from the nightmares, stomach upsets and headaches previously suffered by them. He submits that they are performing well at school, have friends and appropriate parenting in the Trosti household. The father submits that the risks in any Order for contact are that the father’s parenting ability may be adversely affected, the elder children upset, and the risk of further litigation increased.

(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

A practical difficulty and expense which may arise is the cost of supervision at a contact centre.
Another significant difficulty is the hostility currently between the mother and the paternal family, and also the anger and hostility evident in V’s and N’s behaviour towards the mother.
There do not appear to be any other practical difficulties on the children spending time with the mother apart from the fact that some counselling may be required, in particular for the older children, before contact can recommence.

(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

Dr R reports that there is a concern that the mother does not have the necessary emotional stability and maturity to not react in a manner which is unempathic and distressing to the children when she is feeling emotionally threatened. She states that such behaviour is not warranted, even if the mother feels she needs to defend herself and give her version of events.
Dr R reports that the mother presented as an “emotionally distressed woman with a labile effect”. She states that the mother has a history of significant loss (her country and family of origin, her first and fourth children, her father) and trauma (rape, domestic abuse), which would account for some of her volatility during the marriage. In her oral evidence Dr R elaborates on this stating that the mother has a rapid response to situations where she changes from being contained to uncontained rather quickly.
Dr R also reports that the mother’s current loss of contact with the children has understandably increased her grief and defensiveness, contributing to her inappropriate, thoughtless arguments with V in the Contact Centre and at the assessment with Dr R.
Dr R reports that since the separation, the mother has established herself in a positive manner in the community which “contradicts the significant characterological disturbance suggested by the [Trosti’s] descriptions of her”.
The mother gave evidence that she is currently seeing a psychologist and that it has helped her in that she does not cry as much as she did at the time of separation. She also states that she is learning to deal with things and not letting feelings of lack of self-esteem affect her. She states that she has made some big improvements in her life like studying at TAFE, gaining employment, getting her driver’s licence, obtaining rental accommodation and moving out of the refuge. She states she is calmer emotionally.
The mother states that if the Court made Orders for her to see M at a Contact Centre she would avoid any conversations about the past and any negative comments made by M, and would engage her in activities and concentrate on having a good time with her. The mother states that she is aware that they need professional help and that she is prepared to pay for counselling as long as it takes and take small steps. She states she is working very hard and not crying.
The mother also states that she would be prepared to apologise to the paternal grandmother and paternal grandfather for the incident that occurred on

29 October 2009. She states that she has tried to fix the relationship with them since separation and believes that for the sake of the children they need to have a relationship.
Dr R states that when the mother is stabilised by appropriate supports with no threats to her self-esteem, she appears appropriately sensitive, responsible and generous. She becomes depressed and irritable when she is confronted with further loss: her children/her reputation/her feelings of self-worth.
Dr R uses the example of the way the mother and V were interacting with each other at the interview with her to demonstrate the mother’s inability to contain the situation. She states that there was certainly yelling from both the mother and V. She states that the mother had an inappropriately raised voice in a situation where V was distressed and yelling. Dr R states that the mother should be speaking softly and firmly to the children when they are defiant towards her, as yelling back escalates and perpetuates the situation.
There is a concern that the father has a lack of responsible parenting, in particular where it appears that he is allowing the children to be the parents rather than asserting his own authority. For example, he indicates that it is up to the children whether they want to see the mother, and also it appears that there has been little discipline or reprimand for the children’s comments made about the mother.
The father was questioned about the steps he has taken to appease V’s fears about the mother. The father was asked whether he had ever told V that the mother is not going to kill her and allay these fears. The father responded that he had said words to the effect, “You’re not going to be alone with your mother, there will be another person present, you will be fine”. It is the Court’s view that the father has made a futile attempt to address V’s emotional needs in this situation and reassure her that the mother had no intention to kill her.
Dr R states that Recommendation 5 provides for the father to undertake counselling which she believes will allow the father to open his eyes and see the bigger picture, because presently he speaks quite positively about his capacity to parent.
Dr R states that the father does not warrant a psychiatric diagnosis. She states that he has never separated from his parents and would be influenced significantly by them. She states that the father could be assisted to develop more objective views about his marriage and the children’s behaviours by talking to an experienced mental health clinician.
The paternal grandparents demonstrate a high degree of antipathy of the mother, and their capacity to provide for the children’s emotional and intellectual needs is in question.
The children need to emotionally be permitted to love their mother and have a relationship with her, and it is questionable whether the father’s household has the capacity to provide for such emotional needs.
The mother is a qualified teacher in Macedonia for young children and has the capacity to provide for the children’s intellectual needs. The father has also demonstrated that he is able to assist the children with their homework. The older children appear to be performing well at school as demonstrated by their 2011 school reports, and M has started Kindergarten this year. It is acknowledged by the Court that there has been a marked improvement in the children’s education where there has been an absence of conflict. This improvement must continue in the absence of conflict once the children are having contact with both parents.

(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

V attends P College and is in Year 8, N attends F Public School and is in Year 5, and M commenced Kindergarten this year at G Primary School.
N participates in soccer on Tuesday, Thursday and Saturdays. The children also have swimming lessons. V attends NIDA on Sundays for a dramatic arts class.
V was diagnosed with a cyst on her brain in approximately 2007 or 2008 after complaining of suffering from headaches. The treating doctor came to the conclusion that the cyst is a birth defect, that it does not seem to hinder on her development, and that she should have regular check-ups, but not too frequently as x-rays and MRI scans can be harmful to children. V was due to have an appointment with the specialist the week after the trial finished.
The children have been raised in a household with an extended family including the paternal grandparents and, prior to her marriage in 2009, the paternal aunt.
The children are children of parents of Macedonian origin. The children live in an Australian culture. The Orders proposed to be made will afford the children the opportunity to continue to enjoy what each of those cultures has to offer them, and each parent will provide the children with aspects of their cultural heritage in an appropriate way.
According to Dr R, V presented as an emotionally distressed child, in particular when discussing issues about the mother. She states that she has entered adolescence in a very vulnerable state, and she suspects her adolescence will be turbulent and her adult life compromised without family and professional assistance to help her achieve a more balanced way of viewing her mother and managing herself emotionally.
Dr R states in her oral evidence that V needs to learn with maturity that both her and the mother react to situations in an inappropriate way. She states that V needs to learn to understand her contribution to a situation. It is acknowledged that she is now a 13 year old who is likely to be defiant at this stage of her life.
Dr R reports that N presents as being locked into rejecting his mother because of his views she had been abusive to him and other family members. She states that he has taken refuge in the family narrative where the mother has no redeeming features. Dr R states this is not in his best interests and will have a long term negative impact on his future relationships and emotional development.
Dr R reports that M presents now as a happy 5 year old who is being influenced to reject her mother.

(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

This is not applicable.

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

It appears that the father demonstrates a lack of responsible parenting and shows a willingness to allow the children, in particular V, to at times be the parent and make decisions which should be made by the parent.
The father gives evidence that he intends for N to attend a high school of his choice as V was given this autonomy also. He states that his two choices are the private school X School, or the selective school Z School. The father states that he believes that V had the maturity and understanding to choose her high school.
Another example of the father’s failure to appropriately parent the children is by allowing V to believe that she has the authority to decide whether N and M should have continued attending the Contact Centre to see the mother. The father deposes that he was worried that V saw that it was her role to decide whether the younger children could continue to see the mother and that he had told her this was not her responsibility. He states that V is a strong-willed girl. The Court’s view is that the father allowed V to assert such parental responsibility when he unilaterally suspended the time between the mother and the younger children at the Contact Centre. He was aware that V did not want her younger siblings to attend the Contact Centre, and he made the decision to cease all contact.
The father also gives evidence that giving photos of the children to the mother is not up to him and that he would need to ask the children about supplying photos to the mother. It is his evidence that he does not know how the children would deal with photos being given to the mother. He states that V said the photos are of personal times with the father and does not want the mother to have them, and that N is concerned that the mother would rip the father out of any of the photos provided to her. It is the Court’s view that to place this decision in the hands of the children is not a responsible attitude to parenting, and that the father should be able to make this decision without the influence of the children. Putting too much power in the hands of the children is inappropriate.
The father concedes that it is important for parents to have a united front and that he did not do that at the incident on 29 October 2009. It was put to him that this is an example of giving up immediately to what V said, to which he responded “not immediately”.
V had reported to Dr R that she is scared and might run away with N and M if contact with the mother is ordered. The father’s evidence is that he was aware of this and had told V not to think about it and not worry and that she is not responsible for the other children. It was suggested to the father that it would have been more appropriate to say something like, “don’t you dare think about that”. The father agrees, however states he was trying not to be too aggressive, and did not agree that he was being too lenient with her.
Dr R states that this was very unwise and is an abdication of his parental responsibility. Dr R states that the father is the parent, needs to make parenting decisions, needs to set limits on the children, needs to not believe everything they say, and needs to be prepared that by acting in such a way he may disappoint the children.
The evidence seems to suggest that discipline by the father does not appear to have been successful.
It was Dr R’s evidence that the father is very concrete in his way of thinking and that this appears to be the case with the paternal grandparents as well. She states the father’s household is an enmeshed family which has an ethos that you must agree otherwise you are on the outer. She also states that there appears to be a strong need to remain affiliated with the family which is demonstrated by the father not moving out of his parents’ home once he was married and had his own family.
Dr R states that the father’s family will not change, especially not without a lot of convincing. She states that the father needs to learn to not take what the children say at face value, and that he appears to accept everything V and N have asserted without question.
Dr R states that both the mother and paternal grandmother have the propensity to exaggerate and dramatise situations which V seems to have developed as well. She states that in such surroundings you cannot expect V to act otherwise. She states that V appears to misrepresent things, exaggerate and dramatise, and at times misheard what the mother was saying at the interviews with Dr R.
It is Dr R’s evidence that when the children are defiant towards her the mother has not demonstrated a good tolerance and tends to react in a way that is not helpful to the children’s growth.
Dr R states that there was a concern for both the mother’s and father’s reaction to the children expressing a view which was different to their own.

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

There is evidence of violence occurring at the hands of the mother. After the

29 October 2009 incident the mother was charged with assault and damage to property and received a Good Behaviour Bond once convicted.
Both parties have also obtained Apprehended Violence Orders against each other, which are now expired.
The father claims that the mother has assaulted the children including hitting V over the head, choking and digging her nails into M and force-feeding M. The mother denies these allegations.
The mother asserts that with N, if he had fallen asleep on the lounge, she would gently dress him in his pyjamas at which point he would wake up slightly and she would guide him to his bedroom by standing behind him and placing her hands on his shoulders. The Court accepts this is appropriate conduct by the mother.
It is submitted by the Independent Children’s Lawyer that it appears that the paternal family is inclined to exaggerate and generalise their allegations of abuse by the mother, and that it may not have been as serious or as frequent as they allege. An example used was the father’s evidence that incidents like slapping V on the face and grabbing and pulling N by the throat have occurred “ever since the children were born”. The Independent Children’s Lawyer submits that it is unlikely that the family would have tolerated such serious ongoing abuse, continuing over a period of ten years.
The Independent Children’s Lawyer submits that if the Court accepted every description of abuse as alleged by the paternal family, then the mother would pose a serious risk to M; however it is submitted that the reports of abuse by the paternal family cannot be taken at face value. Dr R questions whether the mother’s hitting/mishandling of the children was as extensive as has been reported, and she is not convinced that the mother had threatened to kill the children. Dr R also found that V has misrepresented or exaggerated events involving her mother’s conduct.
The Independent Children’s Lawyer submits that some of the descriptions of abuse, such as the paternal grandfather’s account of the incident at the barbeque and the paternal aunt’s description of slapping V on the face, have the ring of truth. However, it is submitted, there are many anomalies in the accounts given by the various family members.
Dr R states that the father’s judgment that the mother can become volatile and inappropriate is supported by the 3 July 2010 Contact Centre notes and the assessment with Dr R.
Dr R states that all the adults in the household exposed the children to aggressive, out-of-control behaviour, which is harmful to them. She states that whilst not convinced by the mother’s denial of ever hitting the children, she would question whether it was as extensive as has been reported or that there had been minimal affectionate care of them, as they allege.
Dr R states that she is not convinced that the mother felt so powerless or was so abusive that she needed to control the children by picking up knives and threatening to kill them.

(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

The parties both have had Apprehended Violence Orders issued against each other, and were both consented to on a without admissions basis. These appear to now be both expired.

(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

It is always preferable to make Orders that would be least likely to lead to further litigation. The question remains whether the parties are able to overcome their reactions and hostility towards each other to facilitate and put in place the Orders. The prospect in this case unfortunately is dim.
The Court believes that the Orders provided are the best chance of the possibility to an end to litigation.

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

Dr R states that it would be beneficial for the parties to attend family therapy and has made recommendations for the father to attend counselling and for the mother to continue seeing her own counsellor.

Dr R states that while the idea of the mother and V having counselling is appropriate, she does not believe such an endeavour would be viable currently.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons, I conclude that the Orders I propose will operate to foster the best interests of the children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an Order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
The Independent Children’s Lawyer submits that there is no presumption in favour of equal shared parental responsibility given the incident of family violence on 29 October 2009. It is further submitted that there is great antagonism between the parties and although they have recently commenced email communication, it is quite superficial and requires a lot of development. It would be difficult for the parties to communicate in a productive manner.
The mother’s submission is that whilst agreeing with the Independent Children’s Lawyer’s submission that there is great antagonism between the parties, family therapy would help the parties to develop the “superficial” communication that currently exists into a more substantial level of communication. The mother therefore submits that the presumption of equal and shared parental responsibility has not been rebutted and that, with assistance, the parents communication can improve to support such an Order.
Given the total lack of current effective communication between the parties the Court does not propose to make an Order for equal shared parental responsibility.

Section 65DAA

This section requires me to consider making an Order for equal shared time for the children with each parent where it is proposed to make an Order for equal shared parental responsibility. It is not proposed to make such an Order. The antipathy referred to would make such an Order a basis for continuing conflict. These children must be sought to be made free from such conflict.
The Orders the Court proposes to make will not afford the parties equal shared time with the children and I find that to be in their interests.
The Court proposes to make an Order pursuant to s 65L requiring compliance with the parenting Orders to be supervised by a Family Consultant and requiring a Family Consultant to give any party to the parenting Order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting Orders.

Costs

The Independent Children’s Lawyer seeks Orders that the mother and father each pay half of the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer indicates that these costs amount to $11,660 and are comprised of the usual lump sums provided by Legal Aid NSW to the Independent Children’s Lawyer and including Counsel’s fees.
The Independent Children’s Lawyer submits that both parties are in paid employment, that there is evidence that the father and his family own a number of properties, and that neither party was legally aided for the hearing.
The mother submits that pursuant to s 117(4)(b) of the Act the Court must not make an Order for costs if the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children’s Lawyer.
The mother’s submission is that she has limited savings in the bank; her wage is $17.70 per hour; she was previously granted legal aid; and, due to her circumstances, her legal representative and counsel appeared at Legal Aid rates.
She also submits that she was forced out of the family home and forced to find her own accommodation; she has not received spousal maintenance; and she has incurred significant costs in attempting to help the children to spend time with her.
It is submitted by the mother that for these reasons she would suffer financial hardship if she is required to pay a proportion of the Independent Children’s Lawyer’s costs and says accordingly no costs Order should be made against her.
The father submits that a payment schedule for him be as follows:
a)$2,000 payable in one months time
b)$2,000 payable in two months time
c)$1,800 payable in three months time.
The Court, having considered the matters it is required to consider, and in particular the relevant means of the parties and their respective capacities to meet Orders for costs, will make the Orders for the payment of the costs sought but provide for time in which each of the parties can attend to that payment.

I certify that the preceding four-hundred and sixty-seven (467) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 18 May 2012.

Associate:

Date: 18 May 2012

[2012] FamCA 370

Key Legal Topics

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Family Law

Legal Concepts

Costs