S and S - [2005] FMCAfam 175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2005] FMCAfam 175

FAMILY LAW – Children – fourteen year old exposed to years of domestic violence – father with assault charge against mother proved – child’s strong wishes for no contact with father – no appearance by father.

Family Law Act 1975 (Cth), ss.60B; 65E; 68F

M v M (2000) FLC 93-006
In the Marriage of Rossi (1980) 6 Fam LR 148
In the Marriage of P A and J A (1987) 11 Fam LR 435

Applicant:

Respondent:

File Number:

PAM 2546 of 2004

Judgment of:

Emmett FM

Hearing date:

3 March 2005

Delivered at:

Parramatta

Delivered on:

3 March 2005

REPRESENTATION

No Appearance by or on behalf of the Applicant

Solicitor for the Respondent:

Mr Ross, Rowley & Ross Lawyers

Counsel for the Child Representative:

Ms Devere

ORDERS

The child DAS (“the Child”), reside with the Respondent Mother.
All outstanding Applications are hereby dismissed.
Pursuant to s.65DA(2) 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 are set out in Annexure A and these particulars are included in these Orders.
The matter is otherwise removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2546 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant Father filed an Application on 12 February 2004 seeking orders to provide for contact with his son DAS, being the son of the parties.
The Respondent Mother filed a response on 28 June 2004 in which she sought a residence order and that the Applicant Father's application otherwise be dismissed.
The parties were married in 1985 and separated on 27 January 2004, following an incident of domestic violence which culminated in charges heard on 19 May 2004 for common assault. I note that whilst the assault was proved, there was no conviction entered and the Applicant Father was placed on a bond under s.10 of the Crimes Act for a period of 18 months.
Further on that date the Applicant Father consented to apprehended violence orders for a period of 5 years in respect of the Respondent Mother and another son, DBS, being the only other child of the relationship.
The parties came to Australia in 1998. The Respondent Mother relies on her Affidavit sworn 26 August 2004 in which she chronicles a history of domestic violence with the Applicant Father which included broken ribs and an incident relating to the child DAS in 2003 where DAS was held over a balcony as punishment.
The Respondent Mother also relies on documents produced by

Dr Mohamed, which again chronicle a history of reported violence by the Applicant Father and identified sustained injuries.
The Family Report, prepared 21 February 2005 was also tendered. The Family Report discloses distress suffered by the Child, DAS, who, when seeing his father in the waiting room, said that the thought of his father made him sick and brought back fear, pain and misery.
The counsellor reported that the Child outlined an unhappy family life with his father and had nothing positive to say about him. The Child refused an interview with his father and said he would refuse to go on contact visits. The Child also stated to the counsellor that he believed his mother would not stop him from seeing his father if he wished.
The counsellor stated that the Applicant Father was convinced that the Respondent Mother was influencing the Child against him. The counsellor further stated that, if there was any evidence confirming allegations of domestic violence, then the Child's attitude was understandable in the circumstances and not necessarily as a result of having been deliberately alienated against his father by his mother.
There is indeed evidence of domestic violence, at least on 19 May 2004 where the offence of assault was found proved, although, as I have already stated, I note the matter was dealt with by way of a s.10 bond where a conviction is otherwise not recorded.
Further there would appear certainly in the doctor's records to be evidence of injuries of the Respondent Mother over a period between 1999 and 2004, which the Respondent Mother claimed consistently to the doctor were caused by the father. The Applicant Father has had access to the material produced by Dr Mohamed, and has not appeared today to offer evidence against those contentions of the Respondent Mother.
The Respondent Mother otherwise lives in a two-bedroom unit with both her sons who share a bedroom. The Respondent Mother further deposed in her affidavit material that DAS has said to her that he does not wish to see his father, does not want his phone number, and is not interested in seeing him at all.
Whilst I have no evidence about the school attended by DAS at the moment, nor his progress as assessed by the school by way of any school reports, I note that the counsellor reports that the Child told him that he enjoys school and sport and is considering a possible career in engineering, and that the counsellor observed he had a close attachment to his mother and a good relationship with his brother. The counsellor reports that he described a peaceful and happy lifestyle.
In considering what orders should be made in the best interests of the child, I have had regard to s.60B, s.65E and s.68F of the Family Law Act, particularly:
a)the existence of a current apprehended violence order in respect of any approach by the father to DAS's mother or brother;
b)the history of family violence; and
c)the strongly expressed wishes of a child who would otherwise appear to be progressing as any healthy 14 year old.
Further, there was no reason in the Family Report or any reason suggested by the child's representative why his wishes should not be given the fullest consideration and weight in the circumstances.
I do have regard to the fact that DAS's father is of a Muslim background whilst his mother is of a Christian background, and that in an ideal world he ought to have the benefit of being exposed and participating in both cultures.
However, one must balance that benefit against the need to protect the Child from direct or indirect exposure to violence, which I am satisfied is likely to occur. It was held in M v M (2000) FLC 93-006 that an exposure to violence by a parent can be grounds to warrant an order that that parent have no contact with a child on the basis that exposure to ongoing violence is against the best interests of the child. As I have noted, the uncontested evidence in this case outlines an ongoing and significant exposure to violence, both directly and indirectly, by DAS.
Further, it has been recognised In the Marriage of Rossi (1980) 6 Fam LR 148 and In the Marriage of P A and J A (1987) 11 Fam LR 435 that it may be in the best interest of the child to deny contact to one parent in circumstances where such contact would cause undue distress and anxiety to the child. Again the evidence of the Family Report in this case and in particular the distress experienced by DAS when seeing his father indicates that in this case it is appropriate to dismiss the Applicant Father’s Application for contact and make orders in accordance with those sought by the Respondent Mother in her Response.
Accordingly, I make the orders sought in the Response that the Child reside with the Respondent Mother, and that the Applicant Father’s Application otherwise be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 19 April 2005