Nuru and Keita

[2014] FamCA 362

FAMILY COURT OF AUSTRALIA

NURU & KEITA [2014] FamCA 362

FAMILY LAW – CHILDREN – Family violence – Where an order is made that the children live with the mother – Where an order is made that the children spend no time with the father – Injunction – Where the father is restrained from approaching the mother and the children.
FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where the father failed to attend at Court on the second day of the trial – Where the father had been informed of the consequences of such non-attendance – Where orders were made in the father’s absence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Nuru

RESPONDENT: Ms Keita

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 11668 of 2010

DATE DELIVERED: 27 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 and 27 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Taylor

SOLICITOR FOR THE APPLICANT: R A Solicitors

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gary Couper Family and Animal Law

Orders

1. That all previous parenting orders, save for the order that the children’s names be placed on the Airport Watchlist, be discharged.

2. That the mother have sole parental responsibility for all of the major long term issues in respect of the children, R born … 2001, D born … 2003, E born … 2006 and L born … 2008 (“the children”).

3. That the children shall live with the mother.

4. That the children shall spend no time with the father.

5. That the father is restrained and an injunction issues hereby restraining him from approaching the mother and the children or seeking to approach the mother and the children at any residence at which they live, at any school that the children attend or at any other place that they may be at any point in time from time to time.

6. The Independent Children's Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nuru & Keita 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 BRISBANE

FILE NUMBER: BRC 11668 of 2010

Mr Nuru

Applicant

And

Ms Keita

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The father said in his oral evidence in the witness box yesterday that he did not intend to come to court today because he wanted to go to work and not lose his job that he only recently obtained. He has not arrived at court here today and all the Court has been offered as an explanation is that he is sick and that he has gone to the doctor. 

2. I informed the father yesterday, when he said that he had no intention of coming today, that he was required to come. I told him that he had to be here or that his application would be dismissed.  Notwithstanding having been told that the father has gone to the doctor, I am satisfied that he has simply decided not to come to court for a couple of reasons. I am satisfied, on the balance of probabilities, that he has not gone to the doctor. 

3. I am actually satisfied that he has determined to go to work so that he does not lose his job. I am satisfied that he has done so in circumstances where he sensed yesterday that the proceedings were not going the way that he hoped they would and he has made what might be called simply a strategic decision to withdraw from the proceedings knowing the likely outcome. 

4. Having heard all of the evidence yesterday which included oral evidence given by Ms O, the family report writer, who was cross-examined by all three counsel in the case in respect of the opinion evidence that she proffered through her two reports; and having heard the father cross-examined on a lengthy basis by Ms Dart for the mother and, at least, and even without having heard the mother cross-examined, having already formed fairly strong views in respect of the father’s credibility, particularly having regard to the inconsistency in quite a number of the answers that he gave in evidence during the course of the day.  I am quite satisfied that this man certainly did perpetrate the violence to the wife and to the children about which much evidence has been given in the case and about which there is much discussion in the family reports of Ms O. 

5. In the circumstances I am going to make the following orders.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 May 2014.

Associate: 

Date:  3 June 2014