Sipkovska and Sipkovski (No. 2)

[2007] FamCA 1352

FAMILY COURT OF AUSTRALIA

SIPKOVSKA & SIPKOVSKI (NO. 2) [2007] FamCA 1352

FAMILY LAW – CHILDREN – With whom a child spends time  – Family Violence – Vexatious litigant – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Sipkovski

RESPONDENT: Ms Sipkovska

FILE NUMBER: BRF 1659 of 2005

DATE DELIVERED: 2 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: The Applicant appeared on his own behalf by telephone link with the assistance of an Interpreter who was present in Court

COUNSEL FOR THE RESPONDENT: Ms Carmody

SOLICITOR FOR THE RESPONDENT: Counsel was instructed directly

INDEPENDENT CHILDREN'S LAWYER: Mr D Carter

Orders

1. The mother have leave to withdraw her application in a Case filed on 18 October 2007.

2. The child, a son N, born … January 1993 live with the mother.

3. The mother have sole parental responsibility for the child.

4. The address and contact details of the mother not be released to the father.

5. The father refrain from and hereby be restrained, injuncted and prevented from coming within one (1) kilometre of the child or the mother.

6. The father refrain from and hereby be restrained, injuncted and prevented from communicating with the mother or attempting to communicate with the mother nor ask someone else to communicate with the mother either directly or indirectly, nor follow nor approach the mother nor attempt to follow or approach the mother when he is released from jail or ask someone else to approach the mother either directly or indirectly.

7. The father refrain from and hereby be restrained, injuncted and prevented from communicating with the child or attempting to communicate with the child nor ask someone else to communicate with the child either directly or indirectly, nor follow nor approach the child nor attempt to follow or approach the child when he is released from jail or ask someone else to approach the child either directly or indirectly.

AND IT IS REQUESTED THAT:

1. The Department of Corrective Services advise the mother in writing of any Application for Bail or any other application made by the father to be released from jail and that such notification be made on the same day as the application is made.

2. If the father is released from jail, the Department of Corrective Services immediately advise the mother in writing of his release and of his intended residential address.

IT IS FURTHER ORDERED:

1. Any passports of the children, N born … January 1993 and the daughter L (also known as …) born … December 1983 currently held by the Independent Children’s Lawyer pursuant to orders made on 2 April 2007 by the Honourable Justice Barry be released to the mother.

2. The Independent Children’s lawyer be discharged upon the release of the passports pursuant to order 10 above.

3. Until further order the father must not without leave of a court having jurisdiction under the Family Law Act institute proceedings under the Act for children’s orders.

4. Any application for leave in this Court is in the first instance to be listed before a Judge and unless otherwise ordered is not to be served upon any other party.

5. There be no order for costs.

6. That pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

7. All extant applications be dismissed and removed from the List of Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1659/2005

MR SIPKOVSKA

Applicant

And

MS SIPKOVSKI

Respondent

REASONS FOR JUDGMENT

1. I will deliver my judgment in English and obviously a copy of the judgment will be sent to the applicant father and he can have it translated.

2. Some years ago an application was made by the father for an order that he have contact with a child of his marriage to the respondent, the mother, the child being N born in January 1993. 

3. An application was made by the respondent mother to the application for spending time with, and this was to summarily dismiss the application of the father of 30 April of this year in particular as showing no reasonable likelihood of success.

4. After having considered the material, and only the material of the father put before this Court, I was of the opinion that it would be unlikely that the application for summary dismissal would succeed, and acting in the proper and highest regards of the Bar, Carmody of counsel for the applicant mother withdrew the proceedings after an indication from me that the matter should be heard today should she withdraw such application and she did. 

5. I have set out at length, and almost ad nauseam the steps which I was going to take, and eventually, albeit there is the difficulty of translation - and I compliment the interpreter upon the difficult task she has had today - it appears to have got through, and the father has understood the course which I have taken and has consented to the matter being resolved today. 

6. I have already indicated to him the material upon which I will rely, and have done so.  He has had the opportunity of cross-examining Mr M, a social worker who has made a report which is filed in this Court, such report being dated 18 July 2007. 

7. In my 30-odd years of experience at the Bench, and in my many years experience with Mr M, I doubt if I have seen a stronger report by him.  In it he makes it quite clear in par 24 that there should be no contact between the father and the child.  “Why?”, the question will be asked.

8. It comes about as a result of an incident which the father refers to as an incident which took place on 22 June 2005 wherein the father attempted to kill the mother of N, being the respondent to the application for spending time with.  She suffered severe injuries, and is still substantially disabled to such an extent that she is unable to drive a car, nor is she able to seek gainful employment.

9. This took place after a history, which is set out in the affidavit of the mother filed 18 October 2007, which had continued over many years, particularly since about 1999. This conduct was conduct that nobody could accept and/or appreciate. It consisted of beatings, it consisted of excessive alcoholic consumption, it consisted of rude, demeaning, and disgusting language being directed not only towards the mother but to the children, L and N - L was born in December 1983.  I do not know if I said what date N was born, but he was born in January 1993, and is almost 15 years of age.

10. The boy, on frequent occasions according to the evidence of the mother, endeavoured to protect the mother.  According to the evidence of Mr M he indicated that on occasions he placed knives in various parts of the house in order to have some weapon to protect himself from the cowardly bullying behaviour of his father.

11. They separated, and the mother sought and received a domestic violence order from the State Magistrates' Court.  I am not quite sure whether the order was in force and existence at the time of the attempted murder.  I believe it was, and notwithstanding this he took no notice of it, and as I have said ran her over with a car, got out of the car and while she was still pinned under the car suffering severe injuries to her leg, he attempted to strangle her.

12. That, in itself, was bad enough, but N was present and observed everything which took place. Not only did he observe his mother being attempted to be murdered in a most vicious cowardly attack upon her, but this type of conduct of the father - not perhaps going quite as far as he did in June of 2005 - had taken place for many years before. The boy was terrified of his father, and still is afeared of him.  

13. The insensitivity of the father is shown in his statement to Mr M wherein in the report of 18 July 2007 wherein Mr M asked the father about the attack on his wife - and I set out in fact the full paragraph - asked about the attack on his wife referred to it as "a little accident".  He had not wanted to hurt her; however he thought she had deserved it and did not have any regret for his actions.  He was aware that his son had observed the incident, but could not see any reason that he might be upset, or that it might have affected him.  As I have said, that just shows the total insensitivity of the man. 

14. I am concerned, and cannot understand why any person having anything to do with him - Mr M, the mother - requests that there be no “contact” is the word that he uses - to spend time with his son.  He says, in effect, he is the father, that he has rights, that he cannot understand why the child is not allowed to have some contact with him.  Well, I can.  I can understand quite clearly why this boy does not want to have anything to do with him, and I refer to and incorporate in my reasons for judgment the whole of the report of Mr M of 18 July 2007. 

15. I think it is farcical that I am in any way bound to consider joint parenting as has been suggested and incorporated in the Act by politicians.  They obviously have had little or no contact with matters such as this in the Family Court.  However, they have allowed me, when I consider it is in the best interests of the child, not to be bound by such presumption, and I make it quite clear that this is a case in which I have no hesitation in saying there is no presumption of equal parenting of this child.

16. I find against the father in every particular under s 60CC.  He has no insight into the child, he would not advance the welfare of the child.  He would in fact cause the child great fear and concern and alarm.  He is a person who obviously does not suffer any remorse for the severe injuries he perpetrated upon his wife, and mother of N, nor does he even consider that N would be adversely affected by his mother being almost attempted to be murdered in his presence, wherein N even burnt himself on the exhaust pipe of the motor vehicle attempting - and at this stage the boy was only, I think, 12 - 13 years of age - he was burnt on the car exhaust pipe when he endeavoured to protect his mother from the revolting bullying cowardly attack of the man upon his mother.  I have no hesitation - and I am sure the Court of Appeal will forgive me for being somewhat short in my reasons in this case as they have been somewhat critical of the length of my reasons - I have no hesitation in saying this is a clear case in which the child should not be forced, notwithstanding the claim of the father - the children, even under the amended and multi-amended and mutilated Family Law Act, have the rights in this case - not the father, not the mother - the father and the mother only have duties, and the father has failed miserably in his duty towards the child.

17. There are numerous applications made by the respondent mother in her application in a case filed 18 October, two of which, with regret, I cannot order, and they are Os 7 and 8, because I cannot order a State - as far as I am concerned - a State instrumentality to do something when I am sure they would do it in accordance, but I will modify 7 and 8 by putting in those words that the Department is requested to do as is set out. 

18. Insofar as the other matters are concerned, there are applications for mandatory injunctions.  Even the father considers it is for his benefit that there should be an order restraining the mother from coming anywhere within 100 metres of him.  I am persuaded in a case such as this that I am going to make an order that he be restrained, and an injunction is hereby granted restraining him from coming with one kilometre of the mother and the children; I refer to L as well as N.

ORDERS DELIVERED

1. There are two matters that I have to touch upon: (1) there is the concern of the father that the child may leave Australia and go back to Macedonia.  The child already has evinced a desire to have a holiday where he might be able to forget the horrors that have been perpetrated upon himself and his mother by the father, but there is his concern, expressed Mr M, that there may be some form of vendetta against he and his mother from the father's family in Macedonia.  Perhaps they might want to go back; I can see no reason why they should not, and I would be ordering that the passports be released to the boy.  The boy is almost 15 years of age.  He is a boy who obviously has suffered terribly, and he is a boy who should be protected, as far as is possible, from the acts of an insensitive father.

2. I therefore order in accordance with all of the orders that I have referred to.

3. There is a further order, and that is an order pursuant to the provisions of 118 of the so-called vexatious litigant.  They are not really classed as a vexatious litigant under 118, but I am sure that there is the ability of myself to exercise my discretion - I consider it is a discretionary nature - when I take into consideration all the matters before this Court a party should be refused the right - and it is a right that he has - to file an application in this Court without the leave of a Court or a Judge.  I am more than satisfied, because of the matters contained in the wife's affidavit, the only affidavit that I have read - and I make it quite clear I have not concerned myself with Dr D's reports because they have been withdrawn, I would not use them at all - I think that it is absolutely essential that this man be prevented from coming back to this Court and, in effect, threatening the mother by instituting proceedings which she has to defend when she is, as I understand, unemployed and in all probability unemployable. 

ORDERS DELIVERED

RECORDED   :   NOT TRANSCRIBED

1. I am quite satisfied on a case such as this that the mother had to come to Court to protect herself and the boy from the machinations of this man.

RECORDED   :   NOT TRANSCRIBED

ORDERS DELIVERED

1. No order as to costs.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate

Date:  2 November 2007