Said and El Adaba

[2009] FamCA 1289

FAMILY COURT OF AUSTRALIA

SAID & EL ADABA [2009] FamCA 1289

FAMILY LAW – CHILDREN – Final orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Said

RESPONDENT: Ms El Adaba

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6294 of 2008

DATE DELIVERED: 10 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 December 2009

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Jardine

SOLICITOR FOR THE RESPONDENT: Moreland Community Legal Centre Inc

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Ham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Schetzer Constantinou

Orders

1. That all extant parenting orders are discharged.

2. That the wife have sole responsibility for the long term care, welfare and development of the child A born … December 1999 and R born … March 2003.

3. That the children live with the wife.

4. That paragraphs 13 and 15 of the orders made on 16 December 2008 placing the names of the children on the Airport Watch List and restraining either parent from removing the children from the Commonwealth of Australia are discharged.

5. That the Independent Children’s Lawyer be discharged from the proceedings.

6. That the wife have permission forthwith to take the children A and R from the Commonwealth of Australia.

7. That pursuant to s 118 of the Family Law Act 1975 (Cth), the husband is restrained without leave of a judge of the Family Court of Australia from instituting proceedings under the Family Law Act for parenting orders.

8. That the registrar arrange service of the orders upon the Australian Federal Police.

9. That all proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Said & El Adaba is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6294 of 2008

MR SAID

Applicant

And

MS EL ADABA

Respondent

REASONS FOR JUDGMENT

1. This is, ironically enough, a final hearing day of an application filed by the husband in person on 10 July 2008.  On that day in his own handwriting he sought specific parenting orders.  The wife filed a response to that and the document that is now before me for determination is an amended response that she filed on 26 November 2009. 

2. The file record shows that proceedings began in August of 2004 and weaved their way through the Federal Magistrates Court, culminating in consent orders on 19 January 2006.

3. The consent orders were made at a time when both parties were represented by lawyers.  Those orders discharged all extant contact orders. 

4. The orders in 2006 gave the husband some time on each Sunday with the two children at the home of the paternal grandmother.  It must be noted that at that stage R, the youngest child, was only two years and nine months old.

5. The applications currently before me have also wandered through this court.  In December 2008 the parties appeared before Registrar Mestrovic and by consent, orders were made that the father spend some time with the two children (who are now aged almost 10 years and six years of age respectively) but that that time be at and supervised by the S Contact Centre.

6. The December 2008 order has never been implemented and the parties wait their time in the queue.  I am not suggesting that the wife or for that matter the husband has been recalcitrant.  Mr Ham of counsel, who appears on behalf of the Independent Children's Lawyer says that the parties are still some months away.

7. The parties then appeared before Senior Registrar Fitzgibbon.  His orders are irrelevant for the purposes of today, save that it is clear that he told the husband that he had to participate in the proceedings and file documents otherwise the wife could proceed on an undefended basis.  The husband did not comply.  Later, Registrar Sikiotis made a similar order.  On that occasion I am told that the husband appeared in person and was advised very carefully about what his obligations were.  He has not complied.  Much of that might be explained by the fact that he is apparently suffering from a psychiatric illness. 

8. As Mr Ham, I think, rather sensibly and very sensitively put it, all he wants to do is see his children.  The sad fact of life is that he has now not seen them for close to two years.  As late as October 2009, the Victoria police records subpoenaed by the mother show that there was a family violence incident involving the husband with his extended family members and there was reference to a psychiatric disturbance mentioned.

9. One option is to finalise all matters and throw caution to the wind, but I am disturbed about the fact, as Mr Ham correctly points out, that will hardly solve the problem because the husband will simply continue to want to see his children.  Another option is for me to simply adjourn the proceedings off until after the S Contact Centre resources become available and to see what might happen.  The problem with that is, apart from wondering whether the husband would attend the S Contact Centre appointment, I have been told that the children have expressed fear of their father, although exactly why, no-one seems to be able to be confident because it is now over two years since they have had any contact with him.

10. If I was to take the course suggested and try the contact centre, it may very well be that it will traumatise the children all the more. I note that in December 2008, as with the previous years, the wife consented to orders. I think it is time for the court to step in and stop all of this. On an oral application now by the wife, the appropriate course of action is to finalise all parenting matters outstanding between the parties and for the court to make an order under s 118 of the Family Law Act 1975 (Cth) (“the Act”) so that if the husband does get his house in order, then he can make an application which a court can consider before involving the wife.

11. The wife's evidence today for the purposes of the finalising of matters comes from an affidavit that she filed on 25 September 2009.  She said she was born in Egypt in 1972 and is currently 37 years old.  She enjoys good health.  She lives on Centrelink benefits.  The wife said that she married the husband in Egypt in 1998 and there is an age difference of eight years between the parties. 

12. The only two children of the marriage are A, born in December 1999, and R, born in March 2003.  All parties arrived in Australia from Egypt in 1999 and the wife now has permanent residency.  The wife asserted in her affidavit, and although the contents are vague, they do seem to me to give some flavour to what the evidence might be if I required it in any more detail, the husband was physically violent towards her on many occasions.  He would often punch her in the face and she would have black eyes.  She said he also continuously verbally abused her about herself and the way she looked after the children.  She said he did not like her having friends and kept her isolated during the marriage.  I accept that evidence.

13. She said she remained scared of the applicant and scared that he would be physically violent towards her in the future.  She applied for an intervention order in 2003 and when it expired, she sought for it to be extended.  It was extended for a year and when she tried to get another one, the court refused to extend it again on the basis that there was no evidence of family violence.  On 11 June 2009 the wife said she returned to the Magistrates Court and obtained another intervention order.  In other words, there is now an intervention order that will last until the middle of 2010.

14. It seems to me that, on the basis that the husband has had no time with the children for the last two years, there is a family violence order in existence and he has not complied with court orders I ought give the children an opportunity to settle into a regime so that they are not troubled further by having their mother involved in court proceedings.  One of the orders that was made in 2009 was that the husband provide a psychiatrist's evidence as to his mental health. 

15. I have a report from a Dr I, who describes himself as a senior consultant psychiatrist who practices in two locations in Melbourne.  On 8 March 2009 Dr I set out psychiatric presentation of the husband, his mental state and his progress.  Much however can be gleaned from the very last opinion of Dr I.  He said:

    In summary [the husband] was referred by his general practitioner for treatment of a psychiatric disorder.  He described a number of admissions to psychiatric hospitals and he was treated for psychosis in the past.  Since my involvement in the year 2000 [the husband] was noncompliant in attendance and his medication intake.  He displayed signs of a paranoid psychosis and was not insightful to his condition.  He might be suffering a cluster A personality trait.  He dropped his follow-up a few years ago, except for sporadic attendance. His last visit was in December 2008.

16. Whether that report emanates from the court process earlier in the year or, as it suggests, as an indication of something that the general medical practitioner did, is not entirely clear, but I do not think it matters.  It is quite clear that all of the behaviour that everybody has been watching has been confirmed as being a psychiatric disorder.  It seems, under those circumstances, that Mr Ham is right that no matter what the court does, the husband will simply turn back up again asking for time to see his children. 

17. It is the function of the court to make orders of a parenting nature in circumstances where they are in the best interests of the children.  In determining what is in the best interests of the children, the court has to look at the relevant provisions in s 60CC.  The first part of s 60CC sets out the primary considerations.  The first of the two considerations relates to the need to protect children from harm.  The second relates to the question of the children benefiting from having a meaningful relationship with both parents.  In this case those two are distinctly at odds and it seems to me that it is important that the first of the two considerations is given priority. 

18. I think it is important not so much that the children might be physically hurt, but that the court protect them from being traumatised by watching their father continue to cause difficulties for their mother and them. That is the reason why I will not make the order for the children to go to a contact centre at this stage. The other considerations which are described as additional considerations in the Act look at the question of the capacity of a particular parent to provide for the needs of the children, as well as the way in which they exercise their relevant responsibilities.

19. It is obviously difficult for a person who has psychiatric problems to be able to act in a way which everyone else would describe as responsible, however, it is to the children that I think of when I make the comment that the husband has not shown the capacity to be able to care for the children, nor has he been responsible in the way that he has conducted himself.  The other considerations are obviously things such as the contribution of a financial nature towards the support of the children and the way in which the respective parties have conducted themselves about the continuing of the relationship between the other. 

20. It is clear from the relevant orders to which I have referred that the wife has always endeavoured to make the contact arrangements work; whether out of pragmatism or otherwise does not matter.  The example of that is the consent to the contact centre order late last year.  It seems to me that in the circumstances, I can draw the conclusion that it is in the best interests of the children to make final orders and to that extent, I find there is nothing in the material that would make me think that the wife is anything other than a competent parent who is capable of providing for the needs of the children.

21. The Act, however, starts with a presumption that all parents should have equal-shared parental responsibility.  It is a presumption enshrined in the law.  It is only rebutted by evidence of family violence or where circumstances are such that a court is satisfied that it is not in the best interests of the children for the presumption to be applied.  This is an example of a case where both of those considerations are applicable and, having regard to what I have earlier said about the situation, this is not a case where I would make an order for equal-shared parental responsibility.

22. I note in the circumstances that there is existing an order for equal-shared parental responsibility and at the request of the wife I propose to discharge that and make an order that the wife have sole responsibility for the care and welfare of the children's future.

23. The final matter that the wife raised in her material related to the fact that her sister has just died and she desires to go back to her country of birth for the purposes of cleaning up her sister's estate.  That is not opposed by the Independent Children's Lawyer.

24. I note that the wife is now a resident of Australia and the children have been here virtually all of their lives, so there is little point in me concerning myself about the fact that there is any risk.  However, it must be noted that there is an order extant that the children not be permitted to leave Australia.  I propose to discharge that order on the basis that the children would otherwise not be able to go with the wife.  By making an order for sole parental responsibility in favour of the wife, she will be able to apply for a passport.

25. That finally leaves the order that I suggested and both counsel have accepted is probably sensible, and that is that I make an order under s 118 of the Act so that the husband can only commence proceedings and thereby serve his wife in the event that he obtains permission of a judge of this court. I propose to make it a judge of this court, rather than a judicial officer generally, on the basis that I think that there is sufficient information in the Family Court's file to ensure that anybody who looks at this application by the father in the future for permission to commence proceedings will have the benefit of all of the material that I have.

26. In those circumstances, I am satisfied that this is a case that the wife needs to be brought to an end and I could not be confident without making an order under s 118 that the husband would not come back and resume the process all over again. That is particularly so in a situation where in 2009 alone there have been two orders for him to comply with various obligations and he has not done so. I note particularly again the reference of Dr I to the fact that the husband is suffering from a psychiatric state. In those circumstances, I will make those orders.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 December 2009