SARRAF & ASSAF

[2009] FamCA 901

FAMILY COURT OF AUSTRALIA

SARRAF & ASSAF [2009] FamCA 901

FAMILY LAW – CHILDREN – parental responsibility – with whom a child should live – allegations of family violence – no appearance by the applicant father – procedural fairness accorded – applicant father’s applications dismissed – effect of dismissal includes that interim orders cease to have effect

FAMILY LAW – CHILDREN – parental responsibility – with whom a child should live – ex parte application by respondent mother – dismissed

Family Law Act 1975 (Cth) ss 60B, 60CC(2)

APPLICANT: Mr Sarraf

RESPONDENT: Ms Assaf

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: MLC 10736 of 2007

DATE DELIVERED: 31 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 31 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Zindilis & Associates

COUNSEL FOR THE RESPONDENT: Ms Altavilla

SOLICITOR FOR THE RESPONDENT: Altavilla Vessali Barristers & Solicitors

INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

IT IS ORDERED:

1. That all previous parenting orders be and are hereby discharged.

2. That the documents produced by the Department of Immigration and Citizenship in relation of the movements of the husband Mr Sarraf, which indicate that the husband last departed Australia on 30 June 2009 bound for Dubai and Syria to visit friends or relatives, be released for inspection and photocopying.

IT IS DIRECTED:

1. That the evidence of the wife given this day be transcribed.

2. That the letter dated 15 June 2009 from Zindilis & Associates to the solicitors for the wife be marked Exhibit “C1” and that it remain on the Court file.

IT IS FURTHER ORDERED:

1. That the wife have sole parental responsibility for the children D born … February 2003, A born … November 2004 and M born … November 2004.

2. That the children D, A and M live with the mother.

3. That there be no order entitling the father to spend any time with or communicate with the children D, A and M.

4. That leave is refused to the wife and the independent children’s lawyer to make an oral application for the wife to have sole parental responsibility for the three oldest children of the marriage K born … August 1993, R born … February 1995 and Y born … February 1997 on the basis that it is not appropriate for the matter to proceed ex-parte the husband or ex-parte the Department of Human Services.

5. That in the event that any party wishes to institute proceedings in relation to the three oldest children of the marriage they be at liberty to arrange for such listing of such matter to be before me as a matter of urgency.

6. That my reasons for decision be transcribed and when transcribed, be made available to the parties and the Department of Human Services.

7. That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

8. That pursuant to Sections 65DA(2) and 62B the particulars and 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 Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10736 of 2007

MR SARRAF

Applicant

And

MS ASSAF

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked by the mother and by the independent children’s lawyer to make final orders concerning the parties’ six children.  The children are:-

   a)K, born in August 1993;

   b)R, born in February 1995;

   c)Y, born in February 1997;

   d)D, born in February 2003; and

   e)twin daughters, A and M, born in November 2004. 

2. The father is the applicant in three sets of proceedings concerning the children.  There is no appearance by the father or on his behalf.

3. The mother’s application is that she have sole parental responsibility for D, M and A, that they live with her and spend time with the father as deemed appropriate by the court.  For reasons which will be outlined below, I am satisfied that the father has been accorded procedural fairness with regards to this application.

4. The mother also makes an oral application in relation to the three older children, K, R and Y. I am not satisfied that the father has notice of this application and dismiss it accordingly.

Background and procedural fairness

1. The parents married in 1992 in Iraq and separated finally in May 2007.  A decree nisi of dissolution of marriage was granted on the 24 June 2008. 

2. On 16 January 2008, the father instituted proceedings in the Federal Magistrates Court, acting on his own behalf and seeking orders which would enable him to take the three eldest boys (K, R and Y) out of Australia.  No orders were made in those terms. 

3. On 23 July 2008, the father instituted further proceedings and a solicitor named Tanja Lakic prepared documents on behalf of the father.  He sought joint parental responsibility for all of the children; that the four boys (K, R, Y and D) live with him; and the two girls (A and M) live with the mother.  At that point, the youngest son, D, had been living in the care of the mother. 

4. On 1 August 2008, the father filed a further application for parenting orders, which had been prepared for him by his solicitor, Tony Cooper of Randles Cooper & Co Pty Ltd.

5. On the 11 August 2008 orders were made by Senior Registrar FitzGibbon.  On that day, Mr Alexander of counsel appeared on behalf of the father and Ms Altavilla appeared for the respondent mother.  The court ordered that the three youngest children reside with the mother and that the father’s time with them be reserved until the adjourned date, 15 September 2008.  An independent children’s lawyer was requested to be appointed for all six children. 

6. On the 28 August 2008, Mr Cooper, the father’s then solicitor filed a notice of ceasing to act.  On the 15 September 2008, George Zindilis, of Zindilis Barristers and Solicitors, filed a notice of address for service on behalf of the father. 

7. The records of the court do not disclose that Mr Zindilis has ever filed a notice of ceasing to act for the father. 

8. The extant application for final orders is that filed on the 23 July 2008.  In support of that application, an affidavit was sworn and filed on 3 November 2008. 

9. On the 15 September 2008, the matter again came before Senior Registrar FitzGibbon.  All the parties were represented and the Department of Human Services (DHS) appeared as amicus curiae.  The orders made on 15 September 2008 provide that the mother and father share parental responsibility for R and Y and that they live with the father; and that the mother have sole parental responsibility for D, M and A and that they reside with her.  There was some provision for the parents to spend time with the children who were not in his or her care.  An order was made that in the meantime the father and the mother ‘each submit themselves for an assessment by a psychiatrist nominated by the independent children’s lawyer’ and the parties be equally responsible for the costs of the assessment and the report. 

10. On 27 November 2008, the matter again came before Senior Registrar FitzGibbon.  Each of the parties was legally represented.  The proceedings were adjourned to 27 January 2009. 

11. On 22 January 2009 a request, which was signed on behalf of each party including Mr George Zindilis on behalf of the father, was received by the Melbourne Registry of this court.  It sought an adjournment of the hearing on 27 January 2009 on the basis that neither the family report nor a psychiatric assessment had been completed in relation to the parties and the children.  On 23 January 2009, the court advised the three parties that the new hearing date was 16 March 2009.

12. On 12 March 2009, the father’s solicitors wrote to the other parties to the proceedings, and a copy was provided to the court, suggesting that as neither a family report nor an assessment by the nominated psychiatrist, Dr N, had been completed that the matter be adjourned until late April or May 2009. 

13. On 16 March 2009, the Senior Registrar noted an appearance for the mother and the independent children’s lawyer. There was no appearance on behalf of the father.  The interim applications were dismissed and the final applications were adjourned to the list of cases awaiting hearing before a Judge.  It was directed that the independent children’s lawyer send a copy of this order to the father.  I note from the cover sheet to the order that the address for the father was, ‘Mr [Sarraf], 161 Barkly Street, Footscray, Victoria 3011.’  That is the father’s name, but the address is that of his solicitors, Zindilis & Co.  The independent children’s lawyer has tendered a copy of a letter dated 23 March 2009 addressed to the father at his solicitor’s street address, enclosing a copy of the orders made on 16 March 2009 (Exhibit B).

14. A letter tendered by the independent children’s lawyer, from Zindilis Barristers & Solicitors to the practitioners for the mother, dated 15 June 2009, reads as follows:

    I confirm that my client is currently in the process of seeking legal aid to proceed with a psychiatric appointment on 13 August 2009 and such aid is anticipated to be forthcoming.  In the meantime, I am instructed that your client has agreed to allow [R] and [Y] to travel with my client overseas on 13 August 2009 (after the psychiatric appointment) and they will return to Melbourne, Australia by 13 October 2009.  On 10 June 2009, your client signed the requisite passport documentation to facilitate the above and your written confirmation to the above is requested at your earliest convenience.

15. There is currently an extant order which prevents either of the parents from removing any of the children from the Commonwealth of Australia until further order. 

16. I have heard evidence from the mother.  I am satisfied on the mother’s oral evidence that in early June 2009, R came to her requesting that she sign passport application forms, which would enable him and his brother, Y, to travel overseas with the father for a period of a month.  She signed the application forms.  She says that within approximately one week, one or both of the boys came to her and advised her that the father would keep them overseas permanently and involve them in some military training and that they did not want to go, that they had run away from him and left his care.  The mother gave evidence, which I accept, that she notified DHS and Victoria Police of the fact that the boys did not want to travel overseas.  As indicated, there is a current watch list order prohibiting the children travelling overseas made by this court. 

17. I have released for inspection and photocopying certain documents, which have been produced by the Department of Immigration and Citizenship, in relation to movements in and out of Australia by the father since 1 January 2007.  Those documents indicate that the father last departed Australia on the 30 June 2009 bound for Dubai and Syria, specifying his main reason for overseas travel to be visiting friends and relatives.  His outgoing passenger card, which requests details of the intended length of stay overseas, indicates the numeral ‘3’, however it is unclear whether that refers to three months, days or years. 

18. I am satisfied that the father is not in Australia. I note that this was believed to be the case and communicated by the practitioners for the mother to the court when the matter was last before Registrar Sikiotis on 13 August 2009. 

19. On 24 July 2009 a letter was sent by facsimile transmission (confirmation of which is evident on the court file) to all of the parties notifying them that the matter had been listed for hearing before a Registrar on 13 August 2009 for the purposes of being allocated to a judicial docket for the final hearing. 

20. On the 13 August 2009, there was no appearance by or on behalf of the father.  At this hearing the mother alleged a number of matters including that DHS had recommenced proceedings in relation to K, then aged 16, R, 14, and Y, 12. The proceedings were child protection proceedings which effectively removed jurisdiction from this court to make orders covering the same matters in relation to the children.  The mother confirmed that the twin girls, aged four-and-a-half years, and D, aged seven years, were continuing to reside with her.  Significantly, the mother also alleged that the father had relocated to Iraq.

21. I am advised from the bar table that on 13 August 2009, the father did not present for the psychiatric assessment. The mother did present for the psychiatric assessment, but it did not proceed because an interpreter, who had been retained, did not attend. 

22. On 13 August 2009, before Registrar Sikiotis, there was no appearance on behalf of the applicant father.  The matter was listed for trial before me today.

23. The father’s solicitors were notified of the matter being before Registrar Sikiotis on 13 August 2009.  It is incumbent upon them to ascertain what occurred on that day, and if they had done so in accordance with their professional responsibilities, they would see that the trial was due to commence today at 10 am.

24. I am satisfied that the father has been accorded procedural fairness in respect of today’s hearing.

The mother’s application

1. I have read the mother’s response to an application for final orders, filed 11 August 2008, where she seeks sole parental responsibility for D, M and A, that they live with her and spend time with the father as deemed appropriate by the court.

2. I am satisfied that the father has notice of this application. He does not have notice of any application by the mother for parental responsibility of the oldest three children.

3. I take into account the father’s application for final orders dated 23 July 2008 and his affidavit in support sworn on 21 July 2008.  I have read the father’s affidavits sworn 1 August 2008 and 3 November 2008. 

4. There is an affidavit affirmed by the mother on 7 August 2008.  To it is annexed several documents, including a report from DHS dated 23 May 2008 in relation to K and an alleged breach of a supervision order.  At that stage, L was living with Ms E with the permission of DHS.  I have also read the mother’s parenting questionnaire, filed on 25 August 2009. 

5. Whereas it seems that there is good sense in the mother having orders in relation to the three older children as and when orders are made under the Children, Youth and Families Act 2005 (Vic), I cannot be satisfied that the father has notice of any such application made on behalf of the mother. I have declined leave for an oral application to be made.

Legal Principles

1. In parenting proceedings, the standard of proof is the balance of probabilities.  Where I have made a statement of fact that constitutes a finding of fact. 

2. The parenting proceedings are brought under Part VII of the Family Law Act1975 (Cth) (‘the Act’). Pursuant to s 60CA, in deciding to make any parenting order, I must regard the best interests of the children as the paramount consideration. In this case, that is the best interests of D, M and A.

3. The objects of the legislation are defined in s 60B, which prescribes that the best interests of the children will be 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.

4. 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).

5. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.

The primary considerations

1. 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.

2. In this case, there are very serious allegations of family violence made by the mother against the father.  The mother alleges that the children have been exposed to domestic violence within the home and that the older children have, at the behest of the applicant father, physically and savagely attacked her as recently as June 2007. 

3. The father, in his material, denies the allegation of violence by him or at his behest.  However, on the final hearing of the application, the father did not attend court, nor send anyone to appear on his behalf.  It would appear that for all intents and purposes, he has ceased to participate in the proceedings.  This is a court of private law and as such, the court cannot compel parties to pursue applications when they do not want to pursue the applications themselves.

4. On the evidence which I have before me, I am satisfied that appropriate care arrangements for the three youngest children are consistent with the orders that the mother seeks; namely that she have sole parental responsibility for them and that they live with her.  In fact, that is merely a restatement of interim orders that were made on 15 September 2008. 

5. The mother deposes that the children are all frightened of the father and she seeks that there be no order which would oblige or compel the children to spend any time with the father or to communicate with him.  I find that this is in the children’s best interests. 

6. Were these proceedings contested and had the court the benefit of submissions on behalf of the father, I would enumerate the additional considerations to which I can have regard in making my determination of what is in the best interests of the children.  In this case, where the proceedings are unopposed, I have considered those additional matters generally and I am satisfied that such as are relevant to this case are met by the outcome sought by the mother. 

Conclusion

1. I make orders in the terms of the mother’s response, filed on 11 August 2008.

2. I am not satisfied that the father and DHS have notice of the oral application of the mother and the independent children’s lawyer regarding the three oldest children.  I emphasise that I am not dismissing the application on its merits.

1. I will dismiss the father’s application initiating proceedings.  He is not here to prosecute it. 

2. It follows from the completion of all proceedings including the dismissal of the father’s application, that any interim orders made in those proceedings are extinguished too.  This means that the interim orders made on 15 September 2008, affecting parental responsibility for R and Y and providing that they live with the father, have ceased to have any force or effect.  R and Y are children in respect of whom there are no family law orders in force.

3. The mother says that she is currently content in relation to arrangements for her oldest son and he is happy to stay where he is located.  However, she wants to re-unite R and Y with their younger siblings as soon as possible. It seems that DHS shares that goal and are assisting the mother with an extension to her residence.

4. I can see good reason why the mother would want to formalise as soon as possible what parenting arrangements will apply to R and Y once any orders under state welfare law cease to have effect. It is not in the interests of those boys that there be delay in bringing those proceedings before the court. Accordingly, it is my intention that any further proceedings taken in relation to the children within the next six months be listed before me, if I am reasonably available. The mother, father or independent children’s lawyer will have leave to arrange that listing through Registrar Riddiford or my Associate.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 September 2009