Ahmed and Oakes

[2007] FamCA 598

FAMILY COURT OF AUSTRALIA

AHMED & OAKES [2007] FamCA 598

FAMILY LAW - CHILDREN - Magellan matter – Allegations of serious physical abuse by father of children aged 14 and 12 – Father fails to appear in court on first return date – Father communicates directly with court about car trouble – Family report ordered and matter set down for Trial Notice Listing without any orders for children to spend time with or communicate with the father in the meantime

Family Law Act 1975

APPLICANT: Ms Ahmed

RESPONDENT: Mr Oakes

INDEPENDENT CHILDREN’S LAWYER: Samantha Ward

FILE NUMBER: MLF 3007 of 2006

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R. Teicher

SOLICITOR FOR THE APPLICANT: Clarke & Barwood Lawyers

THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Teicher

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Samantha Ward

Orders

1. That the further hearing of this matter be listed for a Trial Notice Listing on

   
   

   13 August 2007 at 9:30am when all parties are required to attend Court personally.

2. That pursuant to section 62G(2) of the Family Law Act 1975 the parties and children a son born … August 1992 and a daughter born … April 1995 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be released by not later than 30 July 2007.

3. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

AND THE COURT NOTES that the effect of these Orders is that there is currently no enforceable Order providing for the father to spend any time with or to communicate with either of the children the son born … August 1992 and daughter born … April 1995. 

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Ahmed & Oakes. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3007 of 2006

MS AHMED

Applicant

And

MR OAKES

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the Magellan duty list.  It is the first directions hearing, although there have been previous proceedings in this court. 

2. The parents cohabited from November 1989, married in November 1991 and separated in November 2000.  There are two children of the marriage with whom these proceedings are concerned:

   a)A SON, born … August 1992; and

   b)A DAUGHTER, born … April 1995.

3. Today is the first return date in this list, having been adjourned by Registrar Williams on 14 March 2007.  The mother has attended court.  She is represented by Mr Teicher, barrister.  The independent children's lawyer is in attendance.  There is no appearance by or on behalf of the respondent father. 

4. There is a note on the court file that the father telephoned the court at 9:15am this morning.  It is recorded that the father said that his car had broken down near C and he will not be able to attend for today.  Nothing further.  I do not understand why the father could not attend court later in the day even with other transport.  However, the father has communicated his intentions sufficiently clearly for me not to postpone the hearing or further stand it down. 

5. The independent children's lawyer and the mother seek that the matter be set down for trial, after preparation of a family report and with no orders for the children to communicate or spend time with the father in the meantime. 

6. Very briefly, in July 2002 consent orders were made in the Federal Magistrates Court providing for the children to reside on a week about basis with their parents. 

7. In October 2006 the mother filed an application in the Federal Magistrates Court seeking that the children live with her and that the father have supervised contact at a contact centre.  The mother deposed to inappropriate physical discipline of the children and inappropriate use by the father of drugs and alcohol.  The father filed some responding material in February 2007. 

8. On 13 March 2007 the mother filed a Form 4 alleging that the father had punched the son, hit him with a strap and spat at him.  She alleged that the children had been physically threatened by the father. 

9. Since late last year the children have resided with the mother. 

10. According to the mother in her material the father was charged with assaulting the son and those proceedings were to be heard in local Magistrates' Court in December 2006.  There is no material on the court file to indicate the outcome.  However, there is a copy of a statement by the son made to the police about the assault.  It is disturbing to say the least.  

11. In July 2006 the wife obtained an intervention order under state legislation in the local Magistrates' Court.  The intervention order is for the personal protection of herself and the children.  The intervention order will expire in July 2007. 

12. This matter was accepted into the Magellan list as at 14 March 2007.  This is a highly resourced list specifically designed and run to deal with child abuse matters. 

13. The Department of Human Services (“DHS”) has prepared a report, it is dated 30 April 2007, it refers to an interview between both children and a DHS worker on 16 April 2007. 

14. Both children state that they are terrified at the thought of having to see or spend time with their father.  They report having witnessed violence against their mother and grandparents and having been subjected to violence themselves – all at the hands of the father.  The children also report their father being drug and alcohol affected when he has been with them.  The report is on the court file and it is dated 30 April 2007.  The recommendations in the report are as follows:-

    The children have both stated that they are terrified of the thought of having to see or spend time with their father.  They have explained this feeling as being based on experiences of violence that they have witnessed or been victim to, when their father has been angry or drug or alcohol affected.  The children have both been able to clearly disclose incidents of violence against their mother, themselves and their paternal grandparents.  Given the children’s ages (12 – 14 years of age), their accounts of their father’s violence, consideration should be given to the children’s wishes not having any further contact with their father.  The Department of Human Services files support a recorded history of concerns relating to reported domestic violence between the parents and the children disclosing incidents of exposure to domestic violence between the parents, including physical harm allegedly perpetrated by [the father]. 

15. The son has expressed a desire to see the paternal grandparents.  I make no orders about that at the moment.  The paternal grandparents are not parties to the proceedings.  They are not in the precincts of the court.  However, I would be surprised if the report of DHS has been brought to their attention. 

16. The independent children's lawyer says that he would support some time being spent between the son and the paternal grandparents, providing it is completely secure and the children - or, the son - would not be brought into contact in any way with the father.  The mother says that since last year the children's contact with their paternal grandparents has been confined to telephone calls, although she would be amenable to some face to face time.  That time, I take it, would have to be under her direct supervision or in circumstances where the mother could be absolutely assured that the children will not be brought into contact with the father nor asked to communicate with him nor pressed to change their views in relation to spending time with him. 

17. It seems to me, in the circumstances, that it is appropriate to set the matter down for hearing.  I am not going to order that the children spend time with the father or communicate with him in the meantime.  I am also not going to provide, as a matter of course, another opportunity for the father to make any application in those terms. 

18. If it turns out that the father wants to make an interim application between now and the final hearing date, he can exercise a liberty which I will reserve to him to do so.  He can apply to me or to the Honourable Justice Brown.  At that point the court will consider the matter including what weight should be accorded to the apparently strong views of the children.  Otherwise, there will be a family report.  Notification about the appointment time for the father to come in to see the family consultant will be sent out to the father by post to his address for service.  After the report is released there will be a procedural hearing called a Trial Notice Listing at which, unless the parties can agree on an outcome by that time, the matter will be organised for trial.  

19. If the father wishes to re-establish any contact with the son and/or daughter it is essential that the father participate in the preparation of the family report and attend all court events/hearings.  As he is not here at court today, I have given these reasons so the father may understand what occurred in his absence.

20. If, in the future, the father does not appear at court when he is required to do so, he should assume that the matter may be finally determined in his absence and that includes at the Trial Notice Listing on the morning of 13August 2007.  If the father fails to attend court and either of the other parties seek final orders be made, I invite the Magellan Registrar to see if I can take the matter then or even later that day.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  19 June 2007