AMIR & ALZA

[2014] FamCA 1023

FAMILY COURT OF AUSTRALIA

AMIR & ALZA [2014] FamCA 1023

FAMILY LAW – CHILDREN – Interim parenting – Where the parties have agreed to the two younger children living with the mother – where the two older children should live – whether the father should be restrained from contacting or approaching the mother or the children on an interim basis – protection of the child from risk of harm – whether the two older children are under the care, however, described of a person under a Child Welfare law pursuant to section 69ZK(1) of the Family Law Act 1975 (Cth).

FAMILY LAW – INTERVENTION – Request pursuant to Section 91B of the Family Law Act 1975 (Cth) for the Secretary of the NSW Department of Family and Community Services to intervene – Court’s concerns as to the parenting capacity of each of the parents in respect of the needs of the children and the children’s safety.

Family Law Act 1975 (Cth) ss 69ZK(1)

APPLICANT: Ms Amir

RESPONDENT: Mr Alza

FILE NUMBER: PAC 4503 of 2014

DATE DELIVERED: 31 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 31 October 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms El Baba of Oxford Lawyers

RESPONDENT – SELF REPRESENTED: Mr Alza in person

Orders

1. By consent, the children, D born … 2003 and E born … 2009 live with the mother.

2. By consent, the father is restrained from contacting or approaching the mother by any means including through a third party pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) and that order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Act.

3. The father is restrained from contacting or approaching the children D and E by any means including through a third party pursuant to section 68B of the Act and that that order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Act.

4. The application for an order seeking that the father be restrained from contacting or approaching the children B born … 2000 or C born … 2001 is dismissed.

5. The Application for orders 6 and 10 in Annexure “A” of the Initiating Application filed on 19 September 2014 is adjourned to a date to be fixed by the Registrar, having regard to the fact that this matter is also being considered as a Magellan matter.

6. An Arabic interpreter is to be provided on the next occasion for the father.

7. Leave is granted for the mother to remain in the safe room on the next occasion.

8. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

9. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention by no later than 19 December 2014.

10. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

11. Leave is granted to the Applicant to issue a subpoena to the Department of Family and Community Services.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amir & Alza 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 PARRAMATTA

FILE NUMBER: PAC 4503  of 2014

Ms Amir

Applicant

And

Mr Alza

Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court for interim orders which are set out in the Initiating Application of the mother filed on 19 September 2014.

2. The mother has made a number of attempts through her solicitor, Ms El Baba, to have the interim orders that she seeks dealt with on an urgent basis and initially on an ex parte basis.

3. I was not prepared on the last occasion to deal with the matter on an ex parte basis but listed the matter today and gave it some urgency in doing so, particularly, at the urging of Ms El Baba and because some serious allegations were made with respect, in particular, to the two children, B who is 14 and C who is 13.

4. B, C, D and E are four of the children of the parties.  There are also two older children who are adults.

5. It appears, though it is not entirely clear, that the parents may have married when the mother was 14 years of age and that they separated in late December 2012, though I do not believe that those details are contained in the affidavit upon which the mother relies.

6. The two younger children being D and E, who are 11 and five respectively, are currently living with the mother and the father has consented to an order that they continue to live with their mother.

7. The two older children, B and C, have been living with their father.  According to the mother, in August 2013 B left his mother’s care and C is said to have followed a few months later, that is, late 2013.

8. The background of the matter is that the mother asserts that the father is mentally unstable though there is no evidence before the Court about any mental illness that he may suffer from.

9. The mother also alleges that she has been the subject of serious assaults over the years by the father and that the other children, in particular, the older daughter K who is currently 19 has also been the subject of his violence.

10. There is no evidence before the Court about the details of the father’s criminal history except to say that there was a final Apprehended Violence Order made in December 2012 for a period of two years naming the mother as the protected person and that order being in standard terms.

11. It appears, however, that there may be a more current Apprehended Violence Order in place and certainly the father seems to suggest that there is which may arise from an assault perpetrated by the father against the daughter K in February of this year.

12. So far as the children are concerned, as I have indicated, the father agrees that the younger children should remain living with their mother and I have made an order by consent to this effect.  It also appears, though it is not entirely clear, that the father does not oppose an order that he be restrained from approaching or contacting the younger children but, in particular, opposes an order that he be restrained from approaching or contacting the two older boys, B and C.

13. The mother’s application in relation to B and C is that they reside with her.  She was seeking an interim order today that these children also reside with her and that a recovery order be issued directing the Marshall of the Court and police to find and recover the two children.

14. The father, who was served with the mother’s Initiating Application and ought to have been aware of the interim orders sought, opposed the application for B and C to reside with the mother.  In the course of opposing the application the father handed to the Court a letter dated 12 March 2014 on the letterhead of The Department of Family and Community Services which includes the following words “[B] and [C] are in the care of their grandfather Mr [Magid]”.  It goes on to say “at this stage the children will be residing with their grandfather long term”.  It is signed by a Child Protection Caseworker from Community Services.

15. As I am concerned that these two children may be children who are under the care, however, described of a person under a Child Welfare law, pursuant to section 69ZK(1) of the Family Law Act 1975 I may not have the power to make the order sought.

16. Accordingly, the application for that order will be adjourned and the Department of Family and Community Services will be invited to appear and inform the Court as to the status of these children.

17. As indicated, I have also determined that the Department should be invited to intervene in these proceedings as there are some very serious concerns about the welfare of all of the children who are the subject of this application.

18. There are allegations that the children have been exposed to significant conflict and violence in their home and there are real concerns about the circumstances in which a 13 and 12 year old were able to leave home without the mother seeming to have any capacity to prevent them from doing so.

19. There are also some serious concerns in relation to the mental health of C and B.  It appears that there is some evidence to suggest that B has some particularly serious psychiatric issues and was on 24 June of this year taken to X Hospital and subsequently admitted to a psychiatric ward.

20. There are also concerns about the circumstances in relation to the children generally, as the older child, K, makes reference to her self-harming behaviour when she was a child.

21. There also seems to be some serious conflict between the paternal extended family and the mother which has apparently some impact upon the children.

22. There are also concerns about school attendance and possibly coercive behaviour on behalf of the father and paternal family in relation to seeking the young daughters to be married rather than completing school.

23. So far as the mother’s parenting capacity is concerned, it is of grave concern to me that B and C left her care when they were 12 and 13 years old respectively and that it has taken approximately a year for her to bring an application before the Court.

24. As I indicated, the Department of Family and Community Services have had some involvement with the family since at least March of this year.  It appears that that Department in some way has made decisions about the care of the children without the involvement of the mother and it appears possibly against the opposition of the father, though that is not clear.

25. The mother is seeking today that I make an order restraining the father from having contact with any of the children.  The father, through his interpreter, made it clear that he opposes such an order and, in particular, in relation to the older two boys.

26. Although the father ought to have read the complete Application and would have known that the mother was seeking such an order today, he did not do so.

27. Although he was also served with one of the affidavits upon which the mother relies in accordance with previous orders made by me, it appears that he did not read it or have it translated for him.  However, the mother also relies upon three further affidavits including, in particular, the affidavit of the older daughter, K, which were only served upon the father today and which he has had no opportunity to read, have translated or seek any legal advice in respect to them.

28. It is very clear that from the mother’s perspective, as she makes very serious allegations, that she believes that the children, C and B, will not be safe if their father is permitted to have contact with them.

29. However, most of the contents of each of the mother’s affidavits relate to matters which I suspect will be highly disputed by the father.  There is very little objective evidence in relation to issues of risk of harm to these particular four children if they have contact with their father.  For example, there is objective evidence that C was absent from school on only five occasions this year.  There is also objective evidence that Apprehended Violence Orders have been made by courts against the father.  Some of the documents which are annexed I simply cannot attach any meaning to.  I simply do not know what they are and regrettably the mother’s affidavit sets out a very incomplete picture of the circumstances of the marriage breakup, the parenting arrangements and many other matters relating to the care of the children.

30. I have particular concerns about the mother’s description of mental health problems in relation to C.  She describes him as suffering from Down’s (sic) Syndrome and says that as he grew up his symptoms did not get any better and that he does not take any medication for his Down’s Syndrome.  It also appears that he goes to a State public school rather than any special school.  In my view, this is very unreliable evidence in relation to any diagnosis in respect of that child.

31. Of particular significance, is that the mother was unaware that the Department of Family and Community Services had been involved with the children and that they had apparently placed them in the care of their grandfather.

32. It is also of particular significance, as I have previously indicated, that she has taken so long to bring any application in relation to those two children.

33. In my view, in these circumstances where the father has not had an interpreter and has not been able to put any submissions before the Court for the last half hour, where he was served with a number of the affidavits today and had no the opportunity to receive any legal advice, it would deny him a hearing in the matter if I were to make the orders sought.

34. As there is a lack of objective evidence of any risk of harm to the children if they were to have contact with their father in circumstances where they are now living with their grandfather and the mother was unaware of any involvement of the Department, in my view, there is no necessity for the order in respect of the two older children.

35. I do, however, make the order in respect of the younger children in light of the evidence about the recent circumstances when the father came to the family home in February of this year.  There does appear to be some objective evidence in the way of photographs and the fact that an Apprehended Violence Orders was made and I attach some weight even though it may very well be contested to the evidence of the social workers who worked with the family when they left the family home following that incident.

36. I have previously made some of the orders sought by consent. 

37. I make a further order in terms of the interim orders of Annexure “A” to the mother’s Initiating Application in respect of restraining the father from contacting or approaching D and E but the application in respect of B or C is dismissed.

38. The Application for Orders numbered 6 and 10, that is, the orders that B and C live with the mother, is adjourned to a date to be fixed by the Registrar having regard to the fact that this matter is also being considered as a Magellan matter.

39. I also previously made the order inviting Department to intervene.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 October 2014.

Associate: 

Date:  19 November 2014