El'Akmar and El'Akmar
[2007] FamCA 1075
•9 July 2007
FAMILY COURT OF AUSTRALIA
| EL’AKMAR & EL’AKMAR | [2007] FamCA 1075 |
| FAMILY LAW – CHILDREN – Family Violence – Wife requests orders which, if granted, will effectively permit her and the three children to live anonymously as far as the husband is concerned – satisfied of serious family violence – application granted. |
| Family Law Act 1975 Crimes (Family Violence) Act 1987 |
B and B: Family Law Reform Act (1997) FLC 92-755
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
| APPLICANT: | Mrs El’Akmar |
| RESPONDENT: | Mr El’Akmar |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 3756 | of | 2007 |
| DATE DELIVERED: | 9 July 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 9 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Altavilla |
| SOLICITOR FOR THE APPLICANT: | Womens Legal Service |
| THE RESPONDENT: | No Appearance |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Noble |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Victoria Legal Aid |
Orders
That the acknowledgements of service and the letter of 5 June 2007 from Womens Legal Service Victoria to Ms S signed respectively by Ms S of E Community Correctional Centre and the respondent husband be marked as exhibit “W1” and remain on the Court file.
That the copy intervention order obtained by the wife in relation to herself and the children D … born … January 1990 H … born … May 1993 and M … born … July 1997 on 6 July 2007 and directed to the respondent husband be marked exhibit “W2” and remain on the Court file.
That the copy intervention order obtained by the oldest child of the marriage A … born … July 1986 on 6 July 2007 and directed to the respondent husband be marked exhibit “W3” and remain on the Court file.
That the children of the marriage D born … January 1990 and H born … May 1993 and M born … July 1997 live with the wife.
That the wife have sole parental responsibility for the children.
That there be no time spent or communication of any kind between the husband and the children.
That I am satisfied that it is in the best interests of the children D born … January 1990 and H born … May 1993 and M born … July 1997 to be known by any surname nominated by the wife.
The wife be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the children previously registered as D born … January 1990 and H born … May 1993 and M born … July 1997 to a surname nominated by her and the said Registrar do register the said children’s names as nominated.
That pursuant to section 68B of the Family Law Act 1975 the husband by himself, his servants or agents be, and is hereby, restrained by injunction from making any attempt to locate, approach or contact the wife and/or the children without leave of a Judge of the Court being first obtained including from instituting proceedings or making an application for, or obtaining, a location order in respect of the children and/or the wife.
That the wife notify the Registry Manager of the Melbourne Registry of the Court (“the Registry Manager”), in writing, of her surname and the surname of the children will be known by and the Registry Manager ensure that such information is kept in safe custody under his or her control and that a note be placed on the file advising how such information may be obtained should the need arise.
That the Registry Manager not release any information concerning the identity and whereabouts of the wife and children, save by express Order of a Judge or Judicial Registrar of this Court.
That the husband be permitted, if he wishes to do so, to lodge with the Registry Manager of this Court, his address from time to time so that the children will have some means of contacting the husband in the event that they want to do so in the future.
That the independent children’s lawyer serve a sealed copy of these Orders on the husband by pre paid post and marked care of Ms S, Case Management Coordinator, Home Detention, E Community Correctional Centre, …, and request from Ms S proof that she has received those documents by requesting her to countersign the covering letter and send a copy back to the independent children’s lawyer and IT IS REQUESTED that Ms S upon receiving the sealed copy Order hand the Order to the respondent husband.
IT IS DIRECTED that the Principal Registrar ensure that the restraint against the husband instituting proceedings for a location order in respect of the wife and/or the children (or any of them) be noted by the Court in a similar manner to the list maintained by the Court in respect of persons about whom an order pursuant to section 118 (1)(c) of the Family Law Act 1975 has been made notwithstanding that the relevant injunction is made pursuant to section 68B of the Family Law Act 1975 and not section 118(1)(c) of the Act.
That paragraph 5 of the Orders made on 17 May 2007 whereby an independent children’s lawyer was appointed be discharged and do so with effect from 23 July 2007.
That my reasons for judgment this day be transcribed and when transcribed a copy be made available to the parties and to the independent children’s lawyer.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
That all proceedings be otherwise dismissed.
IT IS NOTED IN CONNECTION 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 El’Akmar & El’Akmar.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3756 of 2007
| MRS EL’AKMAR |
Applicant
And
| MR EL’AKMAR |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
These proceedings concern three children: D, born in January 1990, who is currently 17 years of age; H, born in May 1993, who is currently 14 years of age; and M, born in July 1997, who is going to be 10 years old by the end of this week. These are the three youngest children of the marriage between the mother, who is the applicant in these proceedings, and the respondent husband. There is another child of the marriage, A, born in July 1986. A has just turned 21 years of age and she resides with her mother and younger siblings.
The wife's application seeks a raft of orders which, if granted, will effectively permit her and the three children to live anonymously as far as the husband is concerned.
I refer to the applicant only by a given name in view of security precautions, which I am satisfied this case requires. The mother has not attended court today but she has attended court previously when this matter was before me. The husband does not attend court and nor is he represented. The husband is currently serving a period of incarceration by home detention for serious assaults to the wife on 13 March 2005. He is detained in South Australia.
This matter was initiated by the wife's application filed on 4 April 2007. It came before me on 2 May 2007 when I made orders for service of relevant documents on the husband personally, and adjourned the matter to 17 May 2007. The documents were served on the husband personally on
11 May 2007. I adjourned the matter to 30 May 2007 for the purpose of having the children represented by an independent children's lawyer which I requested occur. That has now been done. Ms Noble appears.
On 30 May 2007 the matter was before me again and, whereas the wife's practitioners had complied with my directions as to service on the husband, unbeknownst to anyone the husband had been moved from one correctional facility to another so service had to be re-effected again. I adjourned the matter to me today.
Exhibit “W1” is three documents. It is a letter from the wife's practitioners to Ms S, the case management coordinator of home detention at E Community Correctional Centre in South Australia. It is dated 5 June 2007 and encloses copy orders made by this court on 17 May and 30 May 2007 and requests that she effect personal service on the father and complete an acknowledgment of services. There is an acknowledgment of service which is signed by someone on 3 July 2007. I take that to be Ms S, however, there is no proof of that.
The next document is an acknowledgment of service which is apparently signed by the father. The acknowledgment of service appears to be signed by the father on 3 July 2007. What is lacking is any affidavit of proof of signature. Finally, the wife's practitioner relies on a facsimile communication which appears to be from Ms S, dated 5 July 2007 in relation to this matter where she indicates that she is sending an acknowledgment of service. That really does not take it any further.
Formal proof of service is defective. It should not be; this is the second attempt at it. However, in all of the circumstances of the case and looking at the sequence of correspondence I am satisfied that the husband has notice of these proceedings and has had since at least 3 July 2007 if not earlier. The potential of the husband having notice earlier than 3 July 2007 is quite real because the documents which were sent to his previous place of incarceration prior to 30 May 2007 were apparently passed on to him.
I am now satisfied that the husband has notice of the proceedings.
Today the husband was called at the door of the court. I did not anticipate that he would be attending personally but there was no response to the call from any legal representative or other person on his behalf.
The wife seeks orders that she be able to change the children's names to names which are not to be disclosed to the husband. She seeks sole parental responsibility for the children and that there be no time spent or communication between the children and the husband. She seeks an injunction restraining the husband from having any contact with her or with the children without the leave of the court and she seeks that any address details which she is prepared to give the court be withheld except by order of a judge.
The respondent father has not filed or served any documents in these proceedings.
The evidence before me is the affidavit of the wife sworn on 29 March 2007 and the exhibits to which I have earlier referred.
The relief which the wife seeks is very far reaching indeed. It is essential that the children’s interests be represented in these proceedings. Pursuant to an order made on 17 May 2007, Megan Noble of the Legal Aid Commission of Victoria was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on available evidence, of what is the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children.[1] She is not a legal representative retained by the children, she is not bound by any instructions from the children.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
In assessing the evidence in this matter I apply the balance of probabilities as the standard of proof. However, it is the case that the husband does not by representation or otherwise oppose the relief sought. Therefore I regard the evidence of the wife as not being contradicted.
Relevant law – parenting issues
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to [the child], I must regard [the child’s] best interests as the paramount consideration.
Subject to the best interests of the child being the paramount consideration,
s 60B sets out the aims and principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.
The objects may be regarded as the core values of the legislation. [Sub-section 60B(1)(a) of the Act] has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(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 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 the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
Determining the child’s best interests
In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in
s 60CC of the Act.
The primary considerations
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(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.
This is a case where both primary considerations are relevant.
The benefit of a meaningful relationship as a primary consideration
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the father and the children by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the children’s parents is going to be beneficial and of advantage to the children into the future.
As indicated, the applicant seeks various orders and the respondent does not oppose them. This is a court of private law. The relief sought by the wife is discretionary, and in the exercise of that discretion I am mandated to make orders which are in the best interests of children having regard to and weighing the primary considerations and additional considerations which are set out in the legislation which I will discuss in a moment. However, in cases where the respondent does not attend court and does not oppose an application the exercise, in my view, is necessarily more curtailed.
Protection from harm – as a primary consideration
The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[5] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[6].
[5] s 4(a) Family Law Act 1975 (Cth).
[6] s 4(b) Family Law Act 1975 (Cth).
‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[7] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.
[7] s 4 Family Law Act 1975 (Cth).
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by [the child] to physical or psychological harm and formulate orders which protect her from that harm.
The wife's evidence in relation to family violence appears in her affidavit sworn 29 March 2007 at paragraphs 7 to 27. That evidence, which is not challenged, reads as follows:
[7]. The husband was violent towards me throughout our 20 year marriage.
[8]. The violence included the husband hitting me on my face and punching me about the head and body. The husband was also often verbally abusive, telling me I was stupid or useless.
[9]. On one occasion, the husband accused me of having an affair with my teacher. I was undertaking a cooking course. The husband punched me about the head and body demanding that I tell him my teacher’s address.
I eventually gave the address to the husband so he would stop punching me. The husband then attended at my teacher’s home and physically assaulted him. The husband was arrested and charged for this incident and received a suspended sentence.
[10]. All incidents of violence occurred in the presence of wither one or all of the children. I have made a statement to the police concerning the history of family violence. I have not attached this statement to this affidavit, however, I am able to provide this document to the Court should the Court require me to do so.
[11]. I never left the husband as I was too afraid to do so. Also, my father told me I had to stay with my husband. Furthermore, the husband threatened to kill himself if I left him.
[12]. The husband’s violence worsened over time. There were two incidents whereby I was admitted to hospital for treatment. The first being on 24 April 2002 and the final incident on 13 March 2005.
[13]. On 24 April 2002, the husband began hitting me first by slapping me across the face and then hitting me with both his hands. I was knocked to the floor. The children tried to pull the husband off me. [D] managed to hit the husband, which gave me an opportunity to run away with [A] and [H].
[14]. That night, I stayed with my neighbour. [A] and [H] also stayed with me.
[15]. The following day, the husband came to my neighbour’s house. When he saw me, he charged towards me and hit the side of my head. The force of the blow caused me to reel backwards, crash heavily into the wall and fall to the floor. The husband then stomped on my chest with his foot. I was not able to breathe.
[16]. I heard a lot of shouting and screaming. I remember that my neighbours were trying to pull the husband away from me. I also heard the husband shouting that he would burn the house down if I did not return home in 10 minutes. I then briefly lost consciousness.
[17]. I was taken to hospital by ambulance and was admitted overnight. The following day, my father and two female police officers attended at the hospital. The police officers told me they would escort me home to collect my belongings and the children and place us in emergency accommodation.
[18]. My father said I should go back to my husband. I felt that I must take my father’s advice.
[19]. On 13 March 2005, the husband strangled me and bashed my head against a wall until I passed out and fell to the floor. The husband then continued to bash my head against the floor. I eventually lost consciousness.
[20]. This incident occurred in the presence of our four children. The children were all hitting the husband and screaming at him to leave me alone. The children were trying to pull the husband off me.
[21]. When I regained cosciousness (sic), the children helped me off the floor and walked with me to the hospital. We were all in our pyjamas and without shoes as it was approximately midnight.
[22].my children telephoned the police, who attended at the hospital.
I stayed in hospital overnight. The children stayed with me.
[23]. The police took statements from the three eldest children and I. attached and marked with the letters “S-2” is a copy of statement of [myself] dated 22 March 2005. Attached and marked with the letters “S-3” is a copy of statement of [A] dated 17 March 2007. Attached and marked with the letters “S-4” is a copy statement of [D] dated 17 March 2005. Attached and marked with the letters “S-5” is a copy of statement of [S] dated 17 March 2005.
[24]. The child, [M] was 7 years old at the time of the incident. The police did not take a statement from him.
[25]. The following day, the police escorted the children and I home to collect our belongings and then placed us in a safe house.
[26]. The police charged the husband with attempted murder and acts likely to endanger life. The police relocated the children and I interstate, where we have remained in hiding ever since.
[27]. As a result, [A] and I had to leave our employment. [D], [M] and [H] had to leave their school and friends.
Additionally, there are the sentencing remarks of David J in the Supreme Court, criminal jurisdiction, Adelaide, made in November 2006. They read as follows:
[The husband], you have pleaded guilty to the offence of endangering life. On 13 March 2005, you endangered the life of your victim, who was then your wife, by choking her and banging her head on a wall of the house you were both living in, being recklessly indifferent as to whether these acts would endanger her life.
You had originally been charged with attempted murder, but on the morning of the trial that charge was withdrawn and you pleaded guilty to the charge of endangering life.
There were some disputed background facts, and I heard evidence from both you and your victim.
I deal with you on the basis that on the day in question, you were living with your wife and four children, but you and your wife were not sharing a bedroom. Your victim, your wife, told me in evidence, and I accept what she says, that there was strained behaviour between the two of you during the day. At one stage, her sister came and visited her, and went into the bedroom in which your wife was staying. After she had left, your son [D], who was staying with your wife’s brother, came to the house at about 9 o’clock and both the brother and [D] went into the bedroom where she was. This seemed to make you angry and when your wife’s brother left at about 10.30 and you wife went to bed, you then went into her room and argued with her for some period of time. Your daughter, [A], was in the room with you wife. You then poked her with your hands and told her to get up, but she refused because she wanted to go to sleep. You then started to slap her, and told her that if she did not get up something bad would happen to her. You said to her it was going to be terrible. You deny having said that, but I accept what your wife says. According to your wife this went on for some considerable time, namely about an hour, and I accept what she says.
The end result was that she got up because of the treats that you were making and eventually you grabbed her around the neck with two hands with your thumbs on her throat, and you were pressing hard and she would not breathe. You then bashed her head against the wall and she blacked out.
You said that you could not remember the incident, but you agree that it must have happened. Two of your children intervened and called the police.
You and your wife are now separated, and you now have no contact with your four children. You are aged 43 and you are a Muslim man. Your personal details are set out in a psychological report that I have from Mr [R]. I will not repeat them here, but I bear those matters in mind and your history in mind.
I have a reference from your employer, […], which says that you have been employed since 27 September 2005, and they will try to keep your job open for you. I am told that you have always been employed.
As far as the present matter is concerned, you have been in custody for six months and you have spent 13 months on home detention bail at […], where you have been living. You have a previous conviction for assault occasioning actual bodily harm and threatening to cause harm for which you were given a suspended sentence of 10 months, but that was 10 years ago, on 4 June 1996. It was put to me that the facts which created this offence, namely the problems between you and your wife, have now passed because you are separated. You have lost your family and it was put to me that the chances of you re-offending are slight. However, this is a serious matter, choking and bashing a woman in the head is a very serious case of endangering life. I have taken into account that you have pleaded guilty and you will he given full benefit for that. I will also deduct a period of 12 months from your head sentence, which reflects the six months you have spent in custody and the 13 months you have spent on home detention bail.
Your counsel has asked me to suspend the term of imprisonment that I must impose. In my view the offending is far too serious and outweighs those matters personal to yourself. However, I can bear in mind the factors that he raises, namely your pleas of guilty and the fact that the cause of this problem has now passed, when setting your non-parole period.
I also bear in mind your employment as you have always worked and you are working now.
The sentence of the Court is that I will impose a term of imprisonment of four years, however I reduce that to three years because of your plea of guilty, and reduce that by a further 12 months for the time spent in actual custody and on home detention bail so that your head sentence is two years.
I set on non-parole period of nine months. There will be no suspension of sentence.
I am advised that initially the husband was charged with attempted murder but ultimately faced determination on a lesser charge. I am satisfied that the children and the wife have been exposed to family violence within the meaning of the legislation and that the violence is at the extreme end of the spectrum.
Treatment of the additional considerations
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. However, where an additional consideration is relevant it may either alone or cumulatively with other considerations outweigh the applicable primary considerations. I therefore propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children the benefit that may flow from having a meaningful relationship with both parents and ensuring that they are protected from harm and exposure to abuse, neglect or family violence.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[8]
The child’s views[9]
[8] B and B: Family Law Reform Act (1997) FLC 92-755.
[9] s 60CC(3)(a) Family Law Act 1975 (Cth).
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. Previously there was a similar provision,[10] which required the court to take into account the child’s ‘wishes’. There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent,
I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.
[10] The repealed s 68F(2) Family Law Act 1975 (Cth).
The Full Court of the Family Court considered children’s wishes in
R & R: Children's Wishes(2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
There is a distinction between the concept of children’s wishes and children’s views. ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind. The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish.
I agree with the reference in the Revised Explanatory Memorandum[11] that consideration of the children’s views will:-
… allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[12]
Consideration of a child’s views does not exclude consideration of a child’s wishes.
[11] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[12] Ibid paragraph 56.
Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R v R , in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of 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 synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’.
The Court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[13] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[14]
[13] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[14] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
In my view, the views of the children are an important aspect of this case. The wife's evidence, which is not contested, in relation to the children's views appears in her affidavit as follows:
[38]. The children are extremely fearful of the husband and do not want the husband to be able to locate us.
[43]. The children and I are extremely fearful of the husband and do not wish for him to know our whereabouts. The children do not feel safe whilst they continue to bear the husband’s surname.
[53]. I am currently employed on a casual basis and support the children from my income and from assistance from centerlink. The husband does not contribute financially towards the children.
[54]. The children have not spent any time with the husband nor have they had any contact whatsoever with the husband since the 13 March 2005 incident.
[55]. All children have attended counselling as a result of the 13 Match 2005 incident.
[56]. The youngest child, [M], has disclosed to his counsellor that he feels very angry at the husband and that talking or thinking about the husband’s past actions made him have “bad feelings” and feel scared.
[57]. The child, [D], has disclosed this to his counsellor that he fears that his father will become aware of where we live and worries about what his father will do to us if he finds us.
[58]. The child, [H], has told her counsellor that she does not want to see the husband again as he has caused her family to move a lot in the past and is frightened of him and what he might do.
[62]. The children [H] and [M] continue to have nightmares about the 13 March 2005 incident and often come into my room to check that I am still there and that I am ok. I have put a photograph of me next to [M’s] bed and told him I will always be there when he wakes up.
[63]. The children have all expressed strongly held views on the issue of safety. The children have all said, in no uncertain terms, that they are fearful of their father and do not want any contact with him.
The independent children's lawyer has informed me, and I accept, that she has interviewed the children personally. She saw all four children, including [A], who is now 21 years old, on 28 May 2007. She saw them together and then separately. I am informed that the clear and unambiguous view of the children, as expressed to the independent children’s lawyer, was to support all of the orders that are sought by the wife, which will mean that in the future they will have no contact with the husband. They also supported their name being changed so as to preserve their anonymity.
The independent children's lawyer says that she formed views on the basis of the children's interview with her. However, she also took into account the reports of various counsellors who have seen the children, all of which were entirely consistent with her own views.
I accept the submission of the independent children's lawyer in relation to the views of the children. I also accept all of the unchallenged evidence of the wife in that respect.
As I have indicated, this is a fairly curtailed inquiry in relation to the best interests of the children because the husband does not oppose the application or seek any other orders.
I am satisfied that the mother has been, and is, and will continue to be the primary carer for the three dependent children. I take into account the fact that she is not prepared at this stage to facilitate or encourage any relationship between the children and the husband, but I do not find that stand to be contrary to the best interests of the children.
I take into account, pursuant to s 60CC(3)(d) of the Act the likely effect of any changes on the children's circumstances. They last saw their father on 13 March 2005 when he tried to strangle their mother and they had to intervene to save her life. The husband is shortly due for parole and that is on 14 August 2007. I am also advised that by virtue of the fact that his head sentence of three years was less than five years he will almost automatically be paroled. I am satisfied that the children having any contact or communication with the husband would be contrary to their best interests. It is in the best interests of the children that they and the wife should be able to re-establish their lives anonymously well prior to 14 August 2007 and without undue haste.
I am satisfied on the evidence of the wife that she has the capacity to meet the children's physical and emotional needs.
I take into account the fact that the children have a Middle Eastern background. The mother is Middle Eastern. She will continue to be in a position to promote their lifestyle and culture.
I am satisfied that by virtue of the husband's violence in front of the children he shows an exceptionally poor attitude to parenthood and the responsibilities for caring for children.
I am satisfied on the evidence that the mother is an appropriately responsible parent.
I take into account, pursuant to s 60CC(3)(j) and (k) the family violence which I have earlier referred to, and also current orders affecting the wife and the children. There are copy orders which have been tendered as exhibits “W2” and “W3” and which I will direct remain on the court file. These are orders granted under the Magistrates' Court Crimes (Family Violence) Act 1987. They are both orders which will last until further order; that is, indefinitely. They were made ex parte the husband. They were each obtained on 6 July 2007.
The first of the orders was obtained by the wife and is for the personal protection of herself and the three minor children. Pursuant to the order, the husband is restrained from assaulting, harassing, threatening, intimidating or behaving offensively towards the wife or any of the three children, approaching within 50 metres of the wife and/or any of the children, and communicating with the wife and any of the children. He is enjoined from being knowingly within 500 metres of any premises where the wife or any of the three children are educated or reside. The order was to be served by way of substituted service via Ms S in the E Community Correctional Centre. The other order was obtained by A, and she is similarly protected.
I take into account as an additional consideration whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children. Parenting proceedings are never final in the sense that children and their parents' circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
In this case the husband will be back in the community in mid‑August 2007. At that time he may wish to contact the children, and he will be able to do so providing he makes the appropriate application to the Court.
The wife has sought an order that the husband not be permitted to institute proceedings for a location order which would result in the whereabouts of the wife and the children being known to him or some legal representative for the purpose of service of the proceedings upon her. I am satisfied that it is in the best interests of the children to make that order. A location order could be sought by any Court exercising jurisdiction under the Family Law Act, and that involves state Magistrates Courts and the Federal Magistrate's Court and any registry of this Court.
Implementation of the order sought by the mother may not be without difficulty. I will request that the Registry Manager make a note on the database maintained by the Court - similar to those which are made in s 118 proceedings - that leave of a Judge of the Family Court is required prior to the husband being able to make an application for a location order or having released to him details of the wife's address.
The wife also seeks to change of the children's family name. The test for that remains that the interests of the children are the paramount consideration; I take that into account.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[15] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[16] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
… 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 children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[15] s 61B Family Law Act 1975 (Cth).
[16] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[17] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[18] and to ‘make a genuine effort to come to a joint decision about that issue’.[19] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[17] s 65DAC(2) Family Law Act 1975 (Cth).
[18] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[19] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[20] or abuse of the child or another child who is a member of the parent’s family;[21]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[22] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[23]
[20] s 61DA(2)(b) Family Law Act 1975 (Cth).
[21] s 61DA(2)(a) Family Law Act 1975 (Cth).
[22] s 61DA(3) Family Law Act 1975 (Cth).
[23] s 61DA(4) Family Law Act 1975 (Cth).
In this case I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted by virtue of the family violence to which
I have previously referred; that is, I am also satisfied that it would be contrary to the best interest of the children for the father to have any input into their lives in the future without the benefit of a Court otherwise considering the matter.
In summary, I am satisfied that the orders sought by the wife are in the best interests of the children, and I propose to make them in those terms.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 14 September 2007
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Jurisdiction
-
Remedies
-
Procedural Fairness
0
0
2