ELAMIN & AKEL

[2015] FamCA 649

FAMILY COURT OF AUSTRALIA

ELAMIN & AKEL [2015] FamCA 649

FAMILY LAW – CHILDREN – INTERIM – BEST INTERESTS – SPEND TIME WITH – Where the mother applied for orders seeking to suspend the father’s time with the children – Where the mother alleged that the children have been exposed and subject to violence by the father’s current partner –Where the Court was not satisfied that an incident of any significance occurred between the father’s partner and the children – Mother’s application dismissed.

Family Law Act 1975 (Cth) s 62G

APPLICANT: Ms Elamin

RESPONDENT: Mr Akel

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 2639 of 2014

DATE DELIVERED: 7 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 28 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Russo & Partners

SOLICITOR FOR THE RESPONDENT: John Spence & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

IT IS ORDERED

1. That the application of the mother filed on 21 July 2015 is dismissed.

2. That pursuant to s 62G of the Family Law Act 1975 (Cth) a Family Report be prepared by a Family Consultant of the Family Court of Australia nominated by the Manager of Child Dispute Services.

3. That the matter be listed on 10 November 2015 at 10.00 am before the Honourable Justice Rees for the first day of a Less Adversarial Trial.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2639  of 2014

Ms Elamin

Applicant

And

Mr Akel

Respondent

REASONS FOR JUDGMENT

1. On 15 May 2014, final parenting orders were made by consent in relation to twins, B (“B”) and C (“C”), born in 2009 (“the children”). Those orders provided that the children would live with their mother, Ms Elamin (“the mother”), and spend time with their father, Mr Akel (“the father”), from after school Wednesday until Friday morning in the first week of the fortnight and from Friday afternoon until 7.00 pm Sunday in the second week of the fortnight. The orders also provided for school holiday time between the children and the father. On 12 December 2014 the orders were varied, again by consent, to provide that the children not be left alone with two other children, being the children of the father’s current partner.

2. On 21 July 2015, an Application in a Case was filed on behalf of the mother seeking orders suspending indefinitely the time that the children would spend with the father.

3. The mother relied upon an affidavit sworn by her on 15 July 2015, in which she deposes to a conversation which she says took place between herself and the children at about 7.00 pm on Friday 3 July 2015 after they returned from spending time with their father.

4. The mother alleges that when the children arrived home she asked them how their stay was with their father and that they replied “okay”. The mother deposes that, soon after, B said to her words to the effect “Oh Mum I got hit with a knife.” The mother then recounts a conversation between herself and B where B said that the father’s current partner threw a knife at her son D, but that the knife missed D and hit B instead. B is alleged to have said to his mother that he was hit by the knife on the right hand and on the small finger and then on the left shoulder. B said that his father was sitting in the car in the driveway when the incident occurred and that there had been an altercation between his father and his father’s partner prior to the incident.

5. The mother says that B told her that he didn’t cry but that “it really hurt but I was too scared too (sic)”. B said that C was also present and that the incident took place outside the kitchen. The mother says that both of the children said to her that they were very scared. The mother says that after the conversation she observed that B had a cut on the small finger of his right hand.

6. The mother deposes that she then telephoned her solicitor who advised her to report the incident at Suburb E Police Station.

7. In his Response to the Application in a Case, the father relies upon affidavits by himself, his current partner and the former husband of his current partner. Both the father and his current partner deny that the incident took place as the mother alleges. The father deposes that he noticed the small mark on B’s finger when he collected B.

8. Mr F, the father of the children of the father’s current partner, deposes that his children were not present in the father’s house on the weekend commencing 3 July 2015, having been collected by him at 9.00 am on that day to commence their school holiday time with him.

9. Since 3 July 2015, the children have not spent any time with their father.

10. Pursuant to the Consent Orders the children were to spend time with their father commencing on 15 July 2015. Records produced by the G School indicate that neither of the children attended school on 15, 16 or 17 July. The school records indicate that, in relation to both children, the reason given for their absence on 15 and 16 July was “illness” but no reason was given for their absence on 17 July.

11. The father deposes that on 20 July 2015, he had a telephone conversation with the Deputy Principal of G School, in which he asked whether he could come and visit the children at school during lunch. The father deposes that the Deputy Principal replied “You can come, but [B] at the moment does not want to see his step-mother because he is scared, but [C] says he doesn’t have a problem. Tell her to come.”

12. On 21 July 2015, the father attended at G School to visit the children at lunchtime. He took them food and he spoke to the children in the presence of the Deputy Principal. The father deposes that during the visit B said, in the presence of the Deputy Principal, “Mummy said: ‘If daddy comes to the school, run away and make out you are scared. On Friday, mummy is not bringing us to school. She is taking us to a hotel so we can’t see daddy before he leaves on his trip.” (Records produced by the school indicate that on Friday, 24 July 2015, both of the children were absent without explanation.)

13. The father deposes that he asked B why he didn’t wish to see the father’s current partner and B told his father “Because Mummy told me that if anyone asks me about Aunty, to tell them I am scared of her.” The father then asked the children if they wished to speak to his current partner. He telephoned his partner and the boys had a conversation with her. The Deputy Principal then asked B if he wanted to see the father’s partner and B indicated that he did. B told the Deputy Principal that he was not scared. The father’s current partner arrived at the school and the boys rushed up to her and hugged her.

14. These are interim proceedings. The evidence of the mother and the evidence of the father in relation to their conversations with the children cannot be tested by cross-examination.

15. However, the Court is assisted by independent evidence in the form of the documents produced by the New South Wales Police Force. The records indicate that at 2.00 pm on 3 July 2015, the children were taken by the mother to the police station at Suburb E.

16. The police were told by B that on the afternoon of Friday 3 July 2015, the children were at the home of the father and his partner in the rear outdoor area. One of the father’s partner’s children, a twelve year old, was having a verbal argument with her over a trivial matter. The father’s partner went inside the house and shortly after returned with a small butter knife in her hand. The father’s partner threw the knife towards her child who at the time was running in front of B. The knife missed and hit B in the left little finger, causing a small graze.

17. The fact that the knife in question was a “small butter knife” was either not part of the account that B gave to the mother or she did not report that piece of information.

18. After the incident the children were returned to the mother. B told the mother what had happened. The mother immediately called the father who denied the allegation and hung up the phone. The mother took the children to Suburb E police station to report the matter. The mother mentioned ongoing family law proceedings with the father. Police spoke with B who provided the version of events recounted above. B had a small graze to his left finger and did not appear significantly upset by the incident. He appeared happy and well and was playing when spoken to by police.

19. The police then attended at the father’s home and spoke with the father and his partner in relation to the allegation. Both denied the allegation of any argument or altercation occurring and stated that the father’s partner’s children were never at the home on that day.

20. The police observed that none of the father’s partner’s children was present and the father’s partner told the police that her children were with their father. The father told the police that he suspected the mother was making up stories for the purpose of the family law proceedings.

21. The police noted that there was insufficient evidence to support B’s version of events, taking into account his age, inconsistent versions and the lack of independent witnesses. The police noted a small graze to B’s left little finger and stated that the “child did not express any fears and did not appear significantly upset by the incident.”

22. The mother is clear in her affidavit that the children’s conversation with her took place at approximately 7.00 pm on the evening of 3 July 2015. No explanation was given for the fact that the police records indicate that the children were presented at Suburb E police station at 2.00 pm on that day. No evidence is given by the mother of any conversation with the children prior to 2.00 pm and prior to her taking the children to the Suburb E police station.

23. Observed by the police between 2.00 pm and 4.30 pm at the Suburb E police station on Friday 3 July 2015, the children appeared happy and well and were playing. The children did not express any fears to the police and did not appear to be significantly upset. The evidence of the police, as professional and objective observers, is likely to be more accurate than the evidence of the mother.

24. Although a subpoena had been issued to G School to produce records in relation to the children, those documents were produced before the incident and therefore the evidence of the Deputy Principal in relation to the conversations which occurred with the children on 21 July is not available.

25. If, ultimately, the Deputy Principal confirms the father’s version of those events and conversations involving the children, then there is no explanation for the change in the children’s attitude between 3 July 2015, when they appeared to be happy and not significantly upset, and the children’s expressed fears of the father’s new partner on 20 July 2015, other than that which is advanced by the father.

26. The records produced by the school corroborate the father’s assertion that the children were not presented at school on the days when they were due to see their father.

27. Having regard to the evidence contained in the file produced by the New South Wales Police as to the children’s demeanour and effect on interview, on the day in question, I am not satisfied that an incident of any significance occurred on that day.

28. At the present time the matter has not been placed in a docket and is unlikely to be heard until 2016. The application of the mother seeks no more than a suspension of all contact between the children and their father, pending further order. This would have the effect that the children would have no time with their father between now and any further hearing of the matter. The parties were advised that it is likely that a family report in the matter can be prepared in the early part of 2016 and that the hearing would take place after that date. No proposals were put forward by the mother for any orders which would ensure that the children maintained their relationship with their father, in circumstances where it is not alleged that the father played any part in the incident, whatever may have occurred, on 3 July 2015.

29. I am not satisfied that it is appropriate to suspend the time the children should spend with their father, or to place any restrictions upon that time other than those which are already in place pursuant to the orders made on 15 May 2014.

30. The parties have had the benefit of a Child Responsive Memorandum prepared by a Family Consultant in which a recommendation was made that the matter be listed for the first day of a Less Adversarial Trial. The parties have advised the Court that they are not in a position to pay for a single expert to prepare a report and in those circumstances the Court has ascertained that a report could be prepared in February 2016.

31. The matter will therefore be allocated the first day of a Less Adversarial Trial on 10 November 2015 when directions can be made to prepare the matter for hearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 August 2015.

Associate:

Date:  7/8/2015