KAPOOR & SHAH

[2013] FMCAfam 256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAPOOR & SHAH [2013] FMCAfam 256

FAMILY LAW – Interim parenting orders – allegations of family violence – live with – spend time – supervision of time – appointment of independent children's lawyer.

Family Law Act 1975, ss.4(1), 4AB(1), 4AB(2), 4AB(3), 4AB(4), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61C, 61DA, 61DA(1), 61DA(3), 61DB, 65DAA(3)

“Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
Goode & Goode [2006] FamCA 1346
M & K[2007] FMCAfam 26
Murphy & Murphy [2007] FamCA 795
Newlands & Newlands [2007] FamCA 168
R & R: Children’s Wishes (2000) FLC 93-000

Applicant: MS KAPOOR

Respondent: MR SHAH

File Number: CRC 323 of 2012

Judgment of: Kemp FM

Hearing date: 28 February 2013

Date of Last Submission: 8 March 2013

Delivered at: Sydney

Delivered on: 22 March 2013

REPRESENTATION

Solicitors for the Applicant: Filewood Carty Lawyers

Solicitors for the Respondent: Slater & Gordon

THE COURT ORDERS, PENDING FURTHER ORDER:

1. That [X] born [in] 2008 (aged 4 years and 6 months) (“[X]”) and [Y] born [in] 2009 (aged 3 years and 5 months)(“[Y]”) (“the children”) live with the mother.

2. That the children spend time with the father as follows:-

   (a)For a period of 3 weeks, commencing on 25 March 2013 at the [C] Contact Centre for 2 sessions per week, being for not less than 2 hours each on such days to be agreed between the parties, but failing agreement on the days specified by the father, when the children are not, otherwise, in day care.

   (b)Thereafter, for a further period of 6 weeks, for 2 sessions per week for a period of not less than 8 hours each session at such times and on such days to be agreed between the parties, but failing agreement from 9.15am to 5.15pm on days specified by the father, when the children are not, otherwise, in day care, with the father’s time to be supervised by the paternal grandparents and provided that no such time shall commence until the said paternal grandparents provide a written undertaking to the Court, in relation to their duties as supervisor, in a form acceptable to the Court.

3. That all changeovers be effected at the [C] Contact Centre as arranged by the parties with the said Centre.

4. That the children have telephone communication time with the father between 6.00pm and 7.00pm each day, while the children live with the mother (excluding the days when the children are spending 8 hours with the father), with the father or his nominee to initiate the call. The mother is to provide forthwith to the father a telephone number to enable that telephone time to occur.

5. That neither party denigrate the other or permit any other person to do so in the presence or hearing of the children. 

6. That neither party discuss any matter the subject of these proceedings with the children or in their presence.

7. That both the father and the mother do all things reasonably required to ensure that the children continue to attend their current pre-school, being the [L] Pre-School at [W], for at least 2 days per week, as they currently attend.

8. The matter be stood over to 17 May 2013 at 10.00am for mention.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

CRC 323 of 2012

MS KAPOOR

Applicant

And

MR SHAH

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed on 23 November 2012 and as amended by a minute of proposed order, the mother seeks certain interim parenting orders in respect of the children of the relationship, [X] born [in] 2008 (aged 4 years and 6 months) (“[X]”) and [Y] born [in] 2009 (aged 3 years and 5 months)(“[Y]”) as follows:-

   a)That the children live with the mother.

   b)That the children spend time with the father supervised at the Children’s Contact Centre, at such times and with such frequency as is proposed by the Contact Centre, for not less than 6 occasions.

   c)Thereafter, that the children spend time with the father, to be supervised by the Grandparents [paternal], for not less than 4 hours per week, with changeover to take place at the Children’s Contact Centre.

2. The Respondent father in his Response filed 13 December 2012 and as amended by a minute of proposed order, sought his own interim parenting orders as follows:-

   a)That the father and the mother have shared parental responsibility of the children.

   b)That the parties are required to make all decisions about major issues in relation to the children jointly.

   c)That the mother be restrained from removing the children from the [C] Local Government area, without order of the Court.

   d)That the  children have telephone communication with the parties between 6.00pm and 7.00pm each day, while the children live with the mother, the father’s nominee to initiate the call and, when the children live with the father, the father’s nominee to initiate the call to facilitate telephone communication at this time.

   e)That the mother be restrained from removing the children from their current pre-school [T] Preschool at [address omitted].

   f)That the mother forthwith advise the father’s parents [Mr & Mrs D] and keep them advised of her address (to enable the father’s nominee to collect the children and return them to her) and contact telephone numbers (to facilitate telephone communication in Paragraph d) and shall advise of any changes to these details within forty-eight (48) hours of any change occurring.

   g)That the children live with the mother and spend time with the father as follows:

   For [X]

   i)For 3 sessions supervised at the [C] Contact Centre for 2 hours on each occasion as arranged by the father,

   ii)After the conclusion of the order above for a further 2 occasions from 9.15am to 5.45pm each day with changeover to occur at the Interrelate Contact Centre in [C]

   iii)Thereafter, in accordance with Order (iv), (v), (vi) and (vii) below.

   For [Y]

   iv)From 5.00pm Thursday in the first week, until 5.00pm the following Sunday;

   v)From 8.00am Friday until 9.00am the following Monday in the second week;

   vi)From 2.00pm 24th December 2012 (Christmas Eve) and until 2.00pm 1 January 2012 New Years Day;

   vii)From 8.00am [date omitted] 2013 to 8.00am [next day omitted] 2013 being the father’s birthday.

   h)For the purposes of implementing the arrangements referred to herein, the father’s nominee will collect the children from the mother’s [C] residence and return the children to the mother at the conclusion.

3. On the hearing, Ms Filewood appeared for the mother and Ms Tanner appeared for the father.

4. The parties attended a Child Dispute Conference on 26 February 2013 with family consultant, Ms Q. Her memorandum noted the following:-

   Brief Background

   The parents were married for about six years and separated in November 2012.  The mother left the family home.  The children remained with the father for a brief period at which time Orders were made for them to live with their mother and spend time as agreed with their father.  The children have subsequently spent no time with their father.

   There is a Domestic Violence Order in place with Ms Kapoor being the aggrieved and Mr Shah the respondent.

   Summary of agreement(s) reached

   There was no agreement reached.

   Issues remaining in dispute

   Mr Shah seeks to spend any time with his children but preferably have them every weekend and if supervision is required that this be by the paternal grandparents.

   Ms Kapoor seeks to have the children spend time with their father supervised in a secure venue such as a contact centre.

   Ms Kapoor seeks to relocate with the children to Brisbane.

   Family safety factors

   Ms Kapoor alleges ongoing severe and controlling domestic violence throughout the course of her relationship with the father.  She alleges he has threatened to kill her and the children at the time of separation.  She also alleges he has physically harmed the children.

   Ms Kapoor reports concerns regarding Mr Shah’s alcohol consumption in that she says it contributed to his aggression and violence toward her.  Mr Shah denies this is a problem and described a moderate level of alcohol consumption.

   Mr Shah denies all the allegations.  He denied there were any problems in the relationship and is mystified at Ms Kapoor’s allegations and decision to end their relationship.

   Issues relating to the children

   [X] and [Y] were informally interviewed together.  They were initially reluctant to come on their own with me but were encouraged by their mother’s offer of chocolate.  Once alone with me they appeared to relax and they engaged in conversation.  [Y] happily chatted and answered general questions but struggled to respond to questions about his paternal family.  [X] responded to my general questions about her father by telling me in detail (as described to me by her mother) the events that led to the parental separation.  She identified feeling afraid of him because of this and refused to spend time with him.  Her body language matched what she was saying.

   I questioned the mother about [X]’s report to me as she had told me the children were not present during the arguments.  Ms Kapoor agreed it was possible [X] had overheard her talking about this.

   [X] while refusing to see her father or grandfather was willing to see her grandmother.  Both children were happy to see her and Ms D was effusive in her interactions with the children.  [Y] was spontaneous and natural in his joyous response to this however [X] was somewhat reserved.  Ms D asked excessively for the children to show her physical affection and this appeared to have the effect of making [X] feel uncomfortable as she asked to return to her mother.  Ms D was reluctant to let the children go and I had to firmly instruct for this to happen.  She continued to entice the children to stay with bribes of lollies.

   Issues impeding resolution

   If the mother’s allegations of domestic violence have foundation then at a minimum she would need to be protected from having contact with the father and would have difficulty sharing parenting responsibility.

   The children presented as having been exposed to the mother’s views about the father which has caused [X] to feel fearful. 

   The mother’s capacity/willingness to facilitate the relationship between the children and their father.

   The children’s ability to have any relationship with their father should their mother move to Brisbane (especially given the allegations of violence against him).

   Future Directions

   The children need to spend time with their father and paternal family to maintain these relationships as they are already showing signs of apprehension most likely caused by information provided to them by their mother.

   Initial contact with between [X] and her father would be best supported by a contact centre.  It is my view this should only be with her father so the focus can be on this relationship.  After several visits (more if contact is fortnightly) the visits could progress to full day visits each week with the father with changeovers to take place at the contact centre.  The paternal grandparents’ presence is likely to assist the children in feeling comfortable but it will be important that the adults do not talk to the children about the other parent or challenge anything they say. 

5. The mother has deposed to difficulties with English and needing assistance from a Punjabi Interpreter.  The mother says that in this respect she was at somewhat of a disadvantage at the time of the above Child Dispute Conference.  However, her written submissions did not indicate any particular factual disadvantage.

6. On 28 February 2013, the Court made orders for the appointment of an Independent Children’s Lawyer for the children.

Principles to be applied and procedure to be followed

1. The best interests of the children remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).

2. The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:

   (1) The “objects”…are to ensure that the best interests of children are met by:

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

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

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

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

   (2) The “principles” … are … :

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

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

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

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

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

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

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

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

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

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

   (4)   In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:

   “(a)   Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute;

   (c) Identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)     if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

Evidence

1. The mother relied on:-

   a)Her affidavit of sworn on 23 November 2012 and filed on 23 November 2012.

   b)Her affidavit sworn on 19 February 2013 and filed on 19 February 2013.

   c)Affidavit of Mr K sworn on 11 January 2013 and filed on 5 March 2013.

2. The father relied on:-

   a)His affidavit sworn on 12 December 2012 filed on 13 December 2012

   b)Affidavit of Ms U sworn on 13 December 2012 and filed on 13 December 2012.

   c)Affidavit of Ms M affirmed on 25 January 2013 and filed on 25 January 2013.

   d)Affidavit of Ms S sworn on 20 February 2013 and filed on 20 February 2013.

   e)Affidavit of Mr D sworn on 22 February 2013 and filed on 22 February 2013

3. Objections were made by the mother to the affidavits referred to in (b), (c) and (d) in paragraph 11 above on the basis of relevance. They will be read on this interim application and the Court will consider weight issues below. 

4. The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.

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

6. The parties were content for this matter to be dealt with on written submissions, without the need for oral submissions.

Proposals

1. The parties seek the various competing orders set out above. It should be noted, however, that the father’s proposed orders in paragraph 2(g)(vi) and (vii) no longer apply as those dates had passed by the date of the interim hearing.  Further, the father’s written submissions did not press for the making of the injunctive relief set out in paragraph 2(c) above.

Issues

1. The essential issues in dispute the subject of determination are:-

   a)parental responsibility;

   b)who the children are to live with;

   c)time to be spent with the children; and

   d)whether such time should be supervised.

Factual Matters

1. There appear to be a number of relevant uncontested facts, as follows:

   a)The father was born [in] 1976 and is currently 37 years of age.

   b)The mother was born [in] 1988 and is currently 24 years of age.

   c)The parties were married [in] 2007 in India and the children of that relationship are:  [X] born [in] 2008 (aged 4 years and 6 months) and [Y] born [in] 2009 (aged 3 years and 5 months).

   d)On 16 November 2012, the mother left the former matrimonial home, without notice, and attended the [W] Police Station. The children, at that time, were in the care of the father at the home of Ms S.

   e)The former matrimonial home consisted of two flats. The upstairs flat being occupied by the father’s parents and the downstairs flat being occupied by the father, the mother and the children. The only kitchen facilities being in the upper flat and were shared by all.

   f)The parties separated on 16 November 2012.

   g)The father’s occupation is a [omitted], working [omitted] owned by the paternal grandparents.

   h)The mother’s occupation is that of home duties, having, however, worked on the fathers’ family’s [omitted] on a daily basis.

   i)The father lives at [address omitted], [W] with the paternal grandparents. The father has extended family in the [W] area.

   j)The mother lives with the children in a three bedroom house supported by the Women’s refuge, the address of which has not been disclosed.

   k)Criminal charges have been laid against the father with respect to the events of 16 November 2012 and those charges are pending in the Local Court of New South Wales at [C]. There is also pending the hearing of a Final Apprehended Violence Order application.  Although the father submits the children are not specifically included in the provisions of that interim order, the protected person, being the mother, includes persons with whom that protected person has a domestic relationship, namely the children.

   l)On 23 November 2012, the mother commenced these proceedings.

   m)Consent Orders were made in the Local Court of New South Wales at [C] on 27 November 2012, restraining both parents from removing the children from the Commonwealth of Australia.  There was also an Interim Order made, not by consent, that the children live with the mother and have “contact as agreed”.

   n)The father says that notwithstanding the above interim order being “contact as agreed”, the mother has never agreed to any time. The mother says that she has agreed to the father having time with the children at a contact centre, but that he has not taken that up.

   o)

   The email from Ms Filewood, solicitor for the mother, to

   
   

   Ms Tanner, solicitor for the father, dated 6 December 2012 makes it clear that the mother was proposing time for the father at a contact centre.

   p)Ms S (also called “Auntie”) is the mother’s aunt. She has 3 children, Ms U (18 years old), [name omitted] (15 years old) and [name omitted] (11 years old).

   q)The mother is the cousin of Ms U.

1. There appear to be a number of disputed facts, as follows:

   a)The mother says that the father was having a number of affairs with other women.  This is denied by the father.

   b)The mother says that she showed another woman’s underwear, found in the father’s room. to the paternal grandmother. This is denied by the paternal grandmother.

   c)The mother says that she had a conversation with the paternal grandmother about the father’s previous marriage and that he was staying with “Auntie”. This is denied by the paternal grandmother.

   d)The paternal grandmother says that the mother told her the children “were a burden”. This is denied by the mother.

   e)The paternal grandmother admits having arthritis but says that it does not prevent her from caring for the children.

   f)The paternal grandmother denies the mother’s assertions that she would hit, scold and abuse the children or that she had encouraged the children to return to live with her.

   g)The mother says that she has not used a bankcard. This is disputed by Ms S, who says she saw the mother use it to buy food.

   h)The mother alleges that the father nominated Ms U to pick up the children from pre-school, without her consent. She said that she had concerns with that as there were no child seats in Ms U’s car and Ms U was on her Learner’s permit. The father’s affidavit attaches the relevant authority and enrolment forms with the pre-school.  These appeared to be only signed by him and not by the mother. The mother’s details were provided on the enrolment form but her mobile number provided was the same as the father’s mobile number.

   i)The mother said that the father was having an affair with Ms S and that she had caught them in bed together. This is denied by both the father and Ms S.

   j)The father denies the mother’s allegations that he:

   i)physically abused the mother and the children; and

   ii)denigrated the mother or encouraged the children to do so.

   k)The mother denies the father’s allegations that she would yell at the children.

   l)The mother says that she has difficulties understanding English and requires an interpreter. The father disputes that and says that the mother speaks English to a reasonable standard, enabling her to pass her Learner’s permit using an on-screen computer test.

   m)The mother says that her log-book driving record has been falsified by Ms S, her maternal aunt. This is denied by the maternal aunt.

   n)The mother says that she does not have extended family in the [W] area. The father asserts that she has an aunt (being Ms S) and 3 cousins who live in that area.

Presumption of equal shared parental responsibility

1. Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the children concerned that their parents have “equal shared parental responsibility” for them.

2. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].

3. The Court notes that this interim decision may be disregarded, if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.

4. As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 states, unless displaced by court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child/ren (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.

   The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:

   major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)  the child’s education (both current and future); and

(b)  the child’s religious and cultural upbringing; and

(c)  the child’s health; and

(d)  the child’s name; and

(e)  changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.    [Original emphasis]

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

2. Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently, and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.

Parental Responsibility

1. The Court finds that the presumption will not apply in this case, as whilst the Court’s discretion is not to be exercised in a broad exclusionary manner, on an interim hearing, the controversial evidence and the disputed facts before it makes the application of the presumption or it’s rebuttal difficult and supports reliance on s.61DA(3) of the Act to negate the application of the presumption.

Time to spend

1. As the presumption is not applied, the Court does not need to positively consider whether orders should be made which result in the children concerned spending either “equal time” or “substantial and significant time” with both parents.

2. To determine what live with/time orders should be made, the Court must look to the best interests of the children.

Supervised time

1. The basis for a supervision order was described by Carmody J at paragraph 58 in Murphy & Murphy [2007] FamCA 795 as follows:

   “Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact e.g., limited day time only supervised at a contact centre or by a designated person.”

Primary considerations

1. In order to determine the children’s best interests, the Court must have regard to the “primary considerations” with respect to each child under s.60CC(2) which are:

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

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

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act. This applies for proceedings commenced after 7 June 2012, as these proceedings were.

3. The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:

   abuse, in relation to a child, means:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

   family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

4. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include, but are not limited to:

   (a)     an assault; or

   (b)     a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d)     repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f)      intentionally causing death or injury to an animal; or

   (g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

5. The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.

6. For proceedings commenced after 7 June 2012, the definition of family violence no longer requires a person to reasonably fear for their own safety or well-being. 

7. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3) of the Act). The Act provides in s.4AB(4) of the Act examples of situations that may constitute a child being exposed to family violence which include, but are not limited to, the child:

   (a)     overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

8. The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at para 44], Altobelli FM quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:

   “… courts cannot by order, create meaningful relationships  between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.

9. The mother’s evidence detailed serious allegations of physical abuse, in particular, towards her. She says that the father has threatened to kill her and the children.

10. The father’s evidence was that he denied any violence as against the mother or the children.

11. The father’s allegations against the mother, namely that she would yell at the children when distressed, appeared, on their face, to be far less serious for the children than those made by the mother, against the father.  The paternal grandmother deposed to the mother scolding the children and hitting them. When balancing issues of risk for the children’s safety, the Court, on an interim basis, is of the view that the children should live with the mother and spend supervised time with the father.

12. This will enable the Independent Children's Lawyer to investigate by way of subpoena the father’s time with the children in a controlled environment. Given the time for that appointment to take place, the Court is of the view that there should be at least 3 weeks commencing on 25 March 2013 for the father to have supervised time at the [C] Contact Centre. Thereafter, the father’s time should operate for 8 hours on 2 sessions per week for the next 6 weeks supervised by the paternal grandparents, so that the Court can consider the matter further on the adjourned date of 17 May 2013.

13. The Court accepts the mother’s submission that changeovers should be effected at the [C] Contact Centre, so that there can be appropriate supervision and that, too, can be assessed and investigated by the Independent Children's Lawyer.

14. The Court is concerned about the nature of the allegations made by the mother which, if true, would have very serious consequences on any time that the father should spend with the children, whether supervised or not. If proved to be false, however, these allegations potentially give rise to concerns as to the mother’s psychological state.  As to this, the Court would seek that the Independent Children's Lawyer give some consideration to identifying any relevant experts to investigate this issue.

15. The father submits that the mother has knowingly and willingly exposed the children to her unsubstantiated views about him. The family consultant records that the children are already showing signs of apprehension most likely caused “by information provided to them by their mother”.

16. Given the seriousness of the mother’s allegations, the Court must give greater weight to the need to protect the children from any violence over its weighting of the need to maintain a meaningful relationship between the children and the father. The orders proposed by the Court seek to balance those matters by providing a secure environment for the father’s time with the children for a specified period of time and, thereafter, time supervised by the paternal grandparents outside that secure environment.

17. Notwithstanding that the father has sought to traverse a number of the mother’s allegations, particularly against members of his family, those matters cannot be tested at this stage.

Additional considerations

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

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

1. In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-

   “There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”

2. Notwithstanding that the family consultant observed the children with each of the parents and the paternal grandmother, there was no admissible evidence referable to their views and given their ages the Court simply notes that their views have not been sought and nor would they be expected.

(b)    the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);

1. The mother’s evidence was that she was the children’s main care giver, given the father’s long working hours [omitted].

2. The mother said she had no relatives in the [C] area.  This is disputed by the father.  The mother said that her mother resides in India, as does her grandmother and brother.

3. The father’s evidence was that he has a close relationship with the children and had been a part of their daily lives since their births, including playing with them and taking them for walks to the beach.

4. The father, mother and the children, during the course of the parties’ relationship lived in the paternal grandparents home in [W].  The father says that the paternal grandparents cared for the children when both he and the mother were at work [omitted].  The mother concedes that she worked [omitted] on an almost daily basis.

5. Ms U says that she has a good relationship with the children, often delivering them to and picking them up from pre‑school, and that she had facilitated the mother speaking to the children by telephone, when the mother was initially in the Women’s Refuge and the children were with the father.

6. The father says that the mother left the matrimonial home in circumstances which he did not fully understand, leaving the children in his care.  The mother says that she left the matrimonial home in circumstances of violence and, subsequently, commenced recovery proceedings for the children which were the subject of the interim orders made in the Local Court of New South Wales at [C] on 27 November 2012.  

7. The paternal grandmother says that, as at 25 February 2013, she had not seen the children for some 3 months, and that they had up until then been with her on an almost daily basis.

8. The family consultant clearly recommends that the children’s time should be re-engaged with the father and the paternal grandparents as the children were showing signs of apprehension. The family consultant’s recommendation was for there to be supervised time at a contact centre for several visits (more if only fortnightly) and then full day visits outside the centre, with changeovers to take place at the centre. The Court accepts that recommendation.  The Court gives weight to the other matters set out in the family consultant’s report and referred to in paragraph 4 above.

9. The Court is further of the view that the father’s proposed Order for telephone time should be made given the need to re-engage the father and the paternal family with the children in light of the family consultant’s recommendations.

10. Notwithstanding that [X] refused to see the father or paternal grandfather, the family consultant noted that she was willing to see the paternal grandmother and both children appeared that they were happy to see her. The Court accepts the mother’s submission that, notwithstanding that the consultant made no recommendation for [Y]’s time, it would not be practicable to make separate arrangements with respect to the children, and that, in those circumstances, the children initially should have supervised time with the father at a contact centre, which will then build up his relationship and then subsequent time with the father and the paternal grandparents (supervising that time) should take place outside the contact centre.

1. The Court is of the view that changeovers should occur at the contact centre, in order that the centre may monitor the children and also so as to avoid contact between the parties, particularly given the pending criminal proceedings.

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

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

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. The father says that the mother has prevented him from spending time with the children and communicating with them.

2. The mother says that as she has moved initially into a Women’s Refuge and then into supported accommodation, she wishes to have the father spend supervised time with the children, whilst the criminal proceedings are pending.

(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. There is insufficient material filed to enable any consideration under this factor.

(d)    the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The mother’s evidence was that the children are continuing to attend pre-school 2 days per week. The Court is of the view that this should continue in accordance with the father’s proposal. The Court is concerned that the children’s time with the father should be reinstated as quickly as possible, in line with the family consultant’s recommendations, but subject to them continuing with the stability of a routine within the environment of the day-care centre.  Accordingly, the father’s time should be on days when the children are not, otherwise, in day-care.

2. Given both the mother and the father’s evidence as to their [omitted], the Court accepts that the paternal grandmother, in particular, has played a significant role in the children’s lives. This, to an extent, was confirmed by the observations of the consultant as to the children’s reactions in seeing her. The Court is of the view that the children’s time should be reinstated with the father and the paternal family, however, it should occur first with the father in a supervised contact centre environment and, thereafter, with the paternal grandparents supervising his time.  That, of course, will engage them with the children.

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

1. No issues were put to the Court as to any practical difficulty or expense issues. The Court understands that a place at the [C] Contact Centre can be obtained quickly to enable the mother’s orders to be put in place.

(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;

1. The father asserts that there are concerns about the mother’s capacity given that she has removed the children from their home where, he says, they were well cared for, into a Women’s refuge.

2. The mother’s evidence was that living in the Women’s Refuge, and then independent supported accommodation, provided her and the children with safe and secure accommodation and with appropriate facilities. The Court accepts that position.

3. The mother has attended the “Building Connections” programme.

4. The father has completed the “Building Connections” programme at Interrelate.

5. The mother says that the paternal grandparents have denigrated her in the presence of the children and have sought to encourage the children to live with them. This is denied by the paternal grandparents. The family consultant’s observations of the paternal grandmother indicated that she was “reluctant to let the children go” and that she “continued to entice the children to stay with bribes of lollies”.

6. The paternal grandmother desires a close relationship with the children, given, she says, that the mother worked on a daily basis [omitted] and that she, being the paternal grandmother, had been actively involved in the care of the children in the past.

7. The maternal grandmother supports the mother’s application. The maternal grandmother swears to the truth of the matters deposed to by the mother as she says the mother has told her of threats, and in particular, the father’s threats to kill the mother and the children.

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

1. Both the father and the mother are of the Sikh religion. The paternal grandparents and the mother speak the Punjabi language.

2. The father says that the children have been brought up in an extended family setting which, he asserts, is common in the Punjabi culture.

3. The father says that the children were enrolled in the “[L]” Pre-School which is owned and run by an Indian family, where the children were able to socialise with their peers and with extended family of the mother, being their great-aunt and second cousins.

4. The Court is of the view that the parties should take all steps to ensure that the children continue their involvement with their current pre-school in [W] for at least the 2 days per week that they currently attend and will so order, pending further order.

5. The mother says that the Indian culture does not support the children being encouraged to swear at their mother.

6. The Court is somewhat concerned given the length of time the mother has been in Australia (5 years) that she, on her own evidence, appears to have no friends or other support persons. This is contradicted, however, in the affidavit of Ms M who deposes to seeing the mother with unknown persons at a shopping centre with the children.

(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;

1. These factors do not apply to these children.

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

1. The mother’s evidence was that the father abused alcohol.

2. The mother says that she is seeking to improve her English and obtain part-time work.

3. The father says that the mother has failed to demonstrate an appropriate attitude as a parent in that she has influenced the children against him by exposing them to her views and, in particular, this has caused [X] to feel fearful. This observation was referred to by the family consultant in her memorandum.

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

1. The mother’s evidence was that the father was physically violent and abusive towards her, including slapping, kicking her and slamming her head into the fridge and shoving her against the wall. The police report confirms a medium sized lump to her forehead and numerous red marks in her back region.  This is of real concern to the Court and supports an interim supervision order.

2. The mother says that the father had tried to strangle her and threatened to have her killed. She says that he had also threatened to kill the children. The mother also said the father called her a “bitch” and encouraged the children to call her that, used swear words to her and hit her. The mother said that the father had locked her out of the matrimonial home at night and in the cold.

3. The mother said the father’s relatives had witnessed the father’s violence towards her and had done nothing to prevent it. Notwithstanding this, her proposal provided for the paternal grandparents to supervise the father’s time and weight is attached to that concession.

4. The mother said that the father has had and was continuing to have an affair with Ms S (also known as “Auntie”) who, she said, had also threatened to kill her.

5. The mother said that the father had prevented her from telephoning her own mother in India or accessing her own passport.

6. The mother said that the father had refused to allow her to apply for Australian citizenship and threatened that he could have her sent back to India.

7. The mother said that she was never allowed access to a bank card in her name.

8. The mother said that the father threw objects, not caring if they broke near the children.

9. The mother said that Ms S (“Auntie”) slapped her cheek and also threatened to send her back to India. The mother said Ms S slapped [X] and tied her to a guava tree in about July/August 2012. The mother said that the paternal grandmother has hit the children and threatened to kill them.  This appears inconsistent with her proposal for the paternal grandparents to supervise the father’s time with the children.

10. The father’s only complaint about the mother’s care of the children is that she lacks patience and when they misbehave she tends to yell at them and that she has always had extensive “help” in their care from his parents. Given the father’s expression that his parents had provided help to the mother, this weighs in favour of the mother still being the children’s main carer and supports the children, in the interim, living with her.  

(k)     If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

(i)    the nature of the order;

(ii)   the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)   any other relevant matter;

1. The mother has obtained a provisional Apprehended Domestic Violence Order against the father on 17 November 2012. This has been listed for final hearing in the Local Court of New South Wales at [C].  The father has denied all allegations of assault. The father was arrested and is pleading not guilty to the charges laid, when the matter was first dealt with on 6 February 2013.  That matter is also awaiting final hearing.

(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

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

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

1. The father says that the mother has not sought any relocation order, notwithstanding her statement to the family consultant that it was her desire to live with the children in Brisbane.

Live with

1. The Court is of the view that, pending further order, the children should live with the mother.

Time

1. The Court is of the view that, pending further order, the children should spend time with the father in accordance with the recommendations of the family consultant and subject to the orders as set out at the commencement of these reasons.

2. Given that the mother is living in supported accommodation outside the Women’s Refuge the address of which has not been disclosed, the Court is of the view that the father’s proposal for telephone time with the children is appropriate and in their best interests to ensure that he has the ability to maintain a relationship with them and the Court will direct that the mother provide a telephone number to enable that telephone time to occur.

Supervision of time

1. Given the serious allegations made by the mother against the father and the fact that the criminal proceedings are ongoing, the Court accepts that, at least until it receives input from the Independent Children's Lawyer, the father’s time should be supervised. The Court accepts the recommendations of the family consultant that that supervision should initially be at a contact centre and, thereafter, may be supervised by the paternal grandparents outside the centre for the time periods largely recommended by her.

2. Notwithstanding the mother’s concerns regarding the paternal grandparents, she has proposed to have them supervise the father’s time.

3. Any time outside the contact centre would need to be supervised by the paternal grandparents and such time should not commence until the paternal grandparents have provided an appropriate undertaking to the Court in the usual form confirming their understanding of the duties and responsibilities of a supervisor.

Other parenting matters

1. While no party sought such an order, the Court is of the view that the evidence of both parties and the notations of the family consultant would indicate that there should be a mutual order that neither party denigrate the other or permit any other person to do so in the presence or hearing of the children. 

2. The Court is also of the view that an order should be made to the effect that neither party discuss any matter the subject of these proceedings with the children or in their presence.

3. The Court is satisfied, on balance that the orders set out above at the commencement of these reasons are in the children’s best interests and, accordingly, will so order.

4. The proceedings will be adjourned to the May circuit hearing in [C] for mention at 10.00am on 17 May 2013, when the Court can receive the benefit of the input of the Independent Children’s Lawyer.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Kemp FM

Date:  22 March 2013