WADMAL & AMRITA

[2009] FamCA 1313

FAMILY COURT OF AUSTRALIA

WADMAL & AMRITA [2009] FamCA 1313

FAMILY LAW  -  CHILDREN  -  parenting orders  -  father failed to exercise supervised time  -  father in remand facing serious criminal charges  -  father to have no time or communication with child  -  mother at liberty to obtain passport for and travel with child

Family Law Act 1975 (Cth)

FATHER: Mr Wadmal

MOTHER: Ms Amrita

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11820 of 2007

DATE DELIVERED: 4 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 4 December, 2009

REPRESENTATION

THE FATHER: No appearance

SOLICITOR FOR THE MOTHER: Ryan Carlisle Thomas,

COUNSEL FOR THE MOTHER: Mr Glover

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms. Gordon

INDEPENDENT CHILDREN’S LAWYER Goddard Elliott,

Orders

1. That paragraphs (2) to (23) of the orders made herein on 5 December, 2008 be discharged. 

2. That the child L born … June, 2006 live with the mother and she have sole parental responsibility for the child. 

3. That the father have no time or communication with the child.

4. That the father be and is by himself, his servants and agents restrained from attending at or within 100 metres of the residence in which the child lives from time to time and at or within 100 metres of any kindergarten or school attended by the child from time to time.

5. That as soon as practicable the mother provide a sealed copy of these orders to the principal of each kindergarten and school attended by the child from time to time. 

6. That until further order the father by himself, his servants and agents be and is hereby restrained from removing or attempting to remove, or causing or permitting the removal or attempted removal of the child L born … June, 2006 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court. 

7. That as soon as practicable the solicitor for the mother serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order. 

   (8) That the mother be at liberty to :

   (a)obtain a passport for the child without first obtaining the consent of the father;  and

   (b)remove the child from the Commonwealth of Australia without first obtaining the consent of the father;

   and the court declares that paragraph (6) of these orders does not prohibit the removal of the child from Australia  PROVIDED THAT  she is accompanied by the mother.

8. That each of the parties be and are hereby restrained by themselves, their servants and agents, from visiting upon the child the act/procedure of circumcision or any other surgical procedure with like effect and allowing any other person to do so. 

9. That the reasons for judgment this day be transcribed and copies made available to :

   (a)the parties;

   (b)the principal of the kindergarten or school attended by L and, in his or her absolute discretion, any teacher or other professional working with L through the kindergarten or school;  and

   (c)the Department of Human Services or Victoria Police in the event a notification or allegations are made which relate to the parties or L.

10. That a sealed copy of these orders be served upon the father by sending it by ordinary pre-paid post addressed to him at :

    (a)…;  and

    (b)care of the Melbourne Assessment Prison.  

11. That all extant applications be otherwise dismissed. 

12. That these applications be removed from the List of matters awaiting finalisation.

13. That pursuant to s.62B and 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

14. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES

A.That upon receiving advice from the independent children’s lawyer that the father had been remanded in custody and was in the Melbourne Assessment Prison, the court arranged a video-link with the prison to enable him to appear at this hearing.

B.When the hearing started, staff at the Melbourne Assessment Prison (appearing via video) informed the court that the father refused to come into the room and refused to take part in the proceedings.

C. The father maintained his refusal to enter the room and take part in the proceedings after being advised by staff, at the court’s request, that the court would proceed to hear the applications before it in his absence if he elected not to appear. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC1820 of 2007

MR WADMAL

Father

And

MS AMRITA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In November 2008, the court heard competing applications for parenting orders in respect of L, who was born in June, 2006.  The trial ran for four days.  Judgment was delivered on 5 December, 2008.  The court found that the mother had been exposed to significant violence during the course of her relationship with the father.  It found the father had breached orders which required his time with the child to be supervised and had lied about those breaches, as had his mother and his sister. 

2. Orders made on 5 December, 2008 disposed of all applications save those relating to the father’s time with the child and the mother’s application for the issue of a passport for the child. 

3. The court determined that L should live with the mother and she should have sole parental responsibility.  The father was given a last chance to see if, through more formal supervision at a contact centre, he could act in a way which allowed his relationship with his daughter to prosper.  The parties were ordered to apply forthwith to use the GordonCare supervision facility.  Orders provided for the father to spend time with L at GordonCare for the maximum period offered by GordonCare on either a Saturday or Sunday on each alternate weekend. 

4. The court adjourned to today the question of the father’s further supervised time and communication with L and the mother’s application for the issue of a passport.  The applications for residency, parental responsibility and injunctions were dismissed. 

5. The court was advised, earlier in the week, that the father was in remand at the Metropolitan Assessment Prison.  His solicitor filed a notice of ceasing to act on 10 September, 2009 but as early as 21 April, 2009, the father’s solicitors advised the mother’s solicitor, by letter, that they no longer acted for the father.  It is apparent the notice of ceasing to act was not filed until some time later. 

6. The court, of its own motion, arranged a video link with the prison to enable the father to take part in this morning’s proceedings.  When the case commenced, prison officers advised that the father was refusing to enter the room containing the video facility;  it was reported that he said his solicitor would speak for him.  He was then advised, at the request of the court, that he did not have a solicitor in these matters;  his former solicitor had gone off the record some three months ago;  if he did not enter the room and speak, he would not be heard.  The father maintained his position;  he would not be heard.  Thus he has taken no part in the proceedings. 

7. The court heard evidence from Constable H, stationed at the M Police Station.  He is the informant in a matter in which in excess of 30 charges have been laid against the father including conduct endangering life, intentionally causing injury, assault with a weapon and numerous other matters, including driving offences such as drink driving, unlicenced driving and driving an unregistered car.  They arise out of an incident on 2 September, 2009 when, it is alleged, the father endeavoured to run over a female neighbour and her 15 year old son on a number of occasions. 

8. The father was initially remanded to 3 September, 2009.  A bail application made that day was adjourned part-heard to 7 September, 2009 and then to 8 September, 2009.  The bail hearing was lengthy. 

9. On 8 September, 2009 the father was bailed with a plethora of conditions to appear on 27 October, 2009.  He was to live at his parents’ home in the south-eastern suburbs.  A curfew required his presence at that home between 11:00 pm. and 5:00 am.  He was not to drink alcohol.  He was not to attend the property in which the alleged victims of the assault lived or approach or intimidate them.  He was to report to the S Police Station on three days a week.

10. On 27 October, 2009 the case was adjourned and the father’s bail extended to 8 December, 2009.

11. Constable H then received advice from the father’s solicitor of a pending application to vary his bail conditions.  Suspicious of the father’s compliance, Constable H arranged for S police to check the father was living in S.  He was not.  On 9 November, 2009 the father failed to report.  By then Constable H had been advised the application to vary bail was fixed for 27 November, 2009. 

12. Constable H then learnt of an unrelated incident on 14 November, 2009 in which, it is alleged, the father assaulted the domestic male partner with whom he has been in a relationship for some 18 months.  There was no evidence of any such domestic relationship when the trial was heard in 2008.  Numerous charges have now been laid in respect of that incident.  The father was subsequently arrested and is now on remand in respect of both sets of charges.  A complaint and warrant was also brought by police, naming the aggrieved family member as the domestic partner. 

13. The circumstances of the second set of charges demonstrate the informant’s scepticism about the father’s compliance with bail conditions to be well-founded.  It is alleged the father and his partner were at a nightclub in the CBD on Saturday 14 November, 2009 where they consumed alcohol.  They retired to a CBD hotel room, argued and, it is alleged, the father assaulted his partner, causing heavy bleeding.  Later the pair left the hotel, returned to the father’s home in the inner suburbs, drank some more and then went to another nightclub.  There was another argument, another assault against the domestic partner and more bleeding and bruising. 

14. The victim reported the assaults to F Police Station where he detailed an earlier assault by the father in November 2008 which resulted in a broken jaw, surgery and the insertion of two metal plates.  The trial before me ran from 17 to 20 November, 2008;  the court cannot say if the assault alleged occurred before, during or after it. 

15. Constable H then worked with the police member at F to arrest the father, he for breach of bail and she to interview the father in relation to the alleged assaults.  On 17 November, 2009 they attended his home in the inner suburbs;  his car was outside and enquiries revealed he had been there in the last couple of weeks.  Eventually the father was located, arrested and remanded on 18 November, 2009 to appear on 19 November, 2009.  No bail was sought and he was remanded to 16 December, 2009. 

16. It is probable that the magistrate who granted bail on 8 September, 2009 will hear any bail application made on 16 December, 2009.  Constable H understood the father would be contesting the charges. 

17. The mother swore an affidavit on 1 December, 2009, which has been served on the father.  In it she deposed (there is corroboration of this from GordonCare) that she applied to GordonCare immediately after orders were made in December 2008, filling in all necessary forms by 18 December, 2008. 

18. The evidence is that the father did not make an application to use the GordonCare service until 31 July, 2009, more than seven months after the orders were made.  That is an indication of the genuineness, or lack of genuineness, of his purported desire to maintain a meaningful relationship with his daughter. 

19. The orders made on 5 December, 2008 provided for the father to have phone contact with L.  The mother communicated with him by SMS to arrange this.  On a number of occasions the father tried to use these communications to allow him to spend unsupervised time with L, rather than responding to a message with a time on which and day on which he would ring to speak with L.

20. When the mother would not agree to the father seeing L without supervision, the father responded by SMS messages indicating he would not speak with L on the phone.  A number of examples of these texts were before the court.  There is evidence of the father speaking to L on an occasion and promising to send her a gift;  it was not sent.  There is evidence of the mother arranging a time for a call and of the father not making one.  The evidence is overwhelming that the father has elected not to use the opportunities provided to see L in a safe environment and talk with her on the phone and by doing so maintain a relationship with her. 

21. The relevant legal principles were set out in the judgment delivered on 5 December, 2008. The court must be mindful of the objects and principles set out in s.60B of the Family Law Act 1975 and the other legislative provisions which emphasise the benefit to children of both parents having a meaningful involvement in their lives. However, weight must also be given to the importance of protecting children from physical or psychological harm and being subjected to or exposed to abuse and family violence.

22. The evidence of Dr. K (the psychiatrist who assessed the parties) in the trial was that the behaviour the mother alleged was directed at her was typical of a person with a psychopathic personality disorder and if the court found she was telling the truth, any contact the father had with L should be supervised. 

23. The court must be mindful of the fact that the charges which the father faces have not been determined.  They involve serious allegations of violence directed at third parties as well as violence directed at an intimate partner.  In the proceedings in late 2008 the court found that the father had been violent to the mother prior to their separation.

24. If the allegations made against the father are proved, they will corroborate the findings of this court that the father’s attitude to court orders is cavalier and that he believes he can breach them with impunity. 

25. L is still too young for her wishes to be determinative.  She has not seen her father for over a year.  Responsibility for that lies with him.  If he had acted swiftly to enrol at GordonCare, the waiting period would have lapsed and he would be having regular time with her. 

26. In the absence of any evidence to the contrary I place weight on the findings made on 5 December, 2008 about the father’s relationship with the child. 

27. On the evidence before me the father remains insightless about the ramifications of his behaviour on his daughter and has little understanding of the responsibilities of parenthood.  It is not in a child’s interest to be left in a state of suspended animation, not knowing if she will see or speak to her father and being disappointed when he fails to telephone after an arrangement is made.  It is not in her interests to have her father use an order which allows him to speak with her on the phone as a bargaining tool to obtain time contrary to the court’s findings, and then refuse to speak to her when he is unsuccessful.  He may think he is punishing the mother by this conduct, but it is L who is potentially harmed. 

28. Having considered the potential affects on L of not seeing her father, the court made a final attempt at putting in place a regime which would allow the father to maintain a meaningful relationship with her, while ensuring her safety.  L has now lived for a year or more without seeing her father;  that is the status quo.  She has spoken to him very occasionally on the phone.  The court does not find that it would not be in her interests to have a meaningful relationship with him, if her safety could be guaranteed.  Regrettably, her safety cannot be guaranteed at this time. 

29. The costs of time at GordonCare are minimal and the court was satisfied the parties have the capacity to pay those costs.  No practical difficulties stopped the father from signing the necessary application form and attending at GordonCare.

30. In the judgment delivered on 5 December, 2008 the court considered L’s background.  Both her parents are Muslim but they come from quite different cultures and without access to the father and his family it is unlikely L will be exposed to African culture.  The father’s mother and sister were prepared to lie for him on oath in the previous proceedings.  It was the mother’s evidence that they are frightened of him and that may well be right.  Whatever their motives, the court could have no confidence they would ensure L’s safety if they saw her, or would resist attempts by the father to see her when she was with them.  Regrettably, there is no way the court can ensure access to L’s African culture and traditions with the father’s extended family at this time. 

31. An intervention order is on foot, obtained through the complaint and warrant brought by police after the alleged assault on the father’s partner.  It is probable that is not a final order.

32. I take into account the allegations of violence against the neighbours and against the father’s partner, that they have yet to be heard and that the father may contest some or all of them.  The allegations are consistent with the pattern found to have existed by the court earlier. 

33. In one sense, parenting orders are never final.  However, it is L’s best interests which are paramount and the court must consider the impact on her were it to adjourn this case for a further period. 

34. The father elected to play no role in the proceedings.  He is presently in custody on remand.  On the evidence before this court, it must be said that his chances of a grant of bail by the Magistrate later this month are not high.  It is alleged he has breached almost every condition of his bail and committed further offences of violence whilst on bail.  That is not a good start for a bail application.

35. The charges against the father include indictable offences which cannot be tried summarily.  If they proceed there will be a committal and, if he is committed, an eventual trial in the County Court.  There is little point in the court speculating on the timing but it can find that a committal and trial take time, even when the accused is on remand.  It is possible the father will be in custody for many months, pending trial.

36. Balancing all factors, I am satisfied that L’s best interests require the discharge of existing orders for supervised time at GordonCare and that the court order that the father spend no time and have no communication with her. 

37. Throughout the proceedings, the mother sought to obtain a passport for L and to be able to remove L from Australia for the purposes of holidays.  The father objected to this.  The court adjourned the further hearing of the mother’s application for a passport, pending an assessment of the father’s supervised time with L. 

38. The mother was born in Europe.  She has never travelled outside of Australia since immigrating as a child.  She has relatives in her country of birth, as well as relatives in America, and other European countries.  The mother’s family is described in the judgment delivered on 5 December, 2008.  She is one of nine siblings and returned to live with her family after a very difficult time with L’s father.  The mother had family support then and there is no evidence to the contrary now.  Her parents and siblings live in Australia:  it is their home.

1. In the trial the father expressed concern that the mother would be “married off” by her family, to a man in Macedonia or Turkey.  There was no evidence to that effect.  The evidence is that her nuclear family, her immediate family, are well established here.  She is the parent solely responsible for L, physically, emotionally and financially.  She has sole parental responsibility and is in a position to make all long term decisions for the child.  There is no evidence on which the court could find the mother intends to remove L permanently from Australia.  Nothing in the evidence satisfies me that L’s freedom of movement should be curtailed as it presently is.  Orders will provide that the mother can obtain a passport for L and remove L, from the Commonwealth of Australia, without the consent of the father.

I certify that the preceding
39  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2009.

…………………………………………
Associate.