Witek and Witek

[2012] FamCA 648

FAMILY COURT OF AUSTRALIA

WITEK & WITEK [2012 ] FamCA 648

FAMILY LAW – CHILDREN – Undefended final hearing – Family violence - Father served a suspended sentence for assaulting the mother - Breaches of domestic violence orders – Protection of the children from physical and psychological harm

Family Law Act 1975 (Cth) s 60CC(2)(b)

APPLICANT: Ms Witek

RESPONDENT: Mr Witek

INDEPENDENT CHILDREN’S LAWYER: Terence Newman

FILE NUMBER: CSC 657 of 2008

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 30 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: no appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Newman Family Lawyers

Orders

1. The children of the relationship, T born … July 1999 and M born … August 2000 (“the children”) live with the Mother.

2. The Mother have sole parental responsibility for the said children.

3. The Father is to spend no time with the children.

4. The Father is permitted to forward to the Mother, at an address provided by the Mother, any letters, cards or presents to the children, with the Mother being permitted to open letters, cards or presents prior to the children viewing them, and to pass these onto the children at her discretion.

5. The Father is restrained from approaching the Mother or the children in person on any occasion whatsoever.

6. The Mother provide a contact mailing address to the Father.

7. The mother’s contact details are not to be disclosed to the father or the father’s legal representatives.

8. The mother be at liberty to take the children out of the Commonwealth of Australia on holidays at all times without the permission of the father.

9. The Registrar of the Family Court of Australia at Cairns is authorized to sign passport applications in relation to the children on the presentation of applications for passports.

10. The order appointing the Independent Children’s Lawyer be dismissed.

11. 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. 

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 657 of 2008

Ms Witek

Applicant

And

Mr Witek

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I accept that the father has been served both by the court and by the mother with a notification that the matter was to proceed this afternoon. The father has not appeared at court today and has not otherwise made any attempt to contact the court. That may not be unexpected given the notation that the Federal Magistrate made on 7 March 2012.

2. I accept that the chronology set out in the Independent Children’s Lawyer’s case outline document accurately sets out in brief summary the history of relevant events. I accept that in this matter the overwhelming consideration is that set out in s 60CC(2)(b) Family Law Act, and that is the need to protect the children from physical and psychological harm being in contact with their father.

3. There has been a significant history of family violence in this case, the father has served a suspended sentence for assaulting the mother and for various breaches of domestic violence orders. There has been a number of examples of family violence the children have witnessed. I accept what the mother tells me about the views expressed by the children, T who is now aged 13 and M who is aged 11.

4. There is currently in place an apprehended violence order which restrains the father from approaching the children for a period of five years from 2011.

5. The children have had quite limited time with their father since the parties separated in February 2008. There is no criticism to be made of the mother of her reticence to facilitate and encourage a close and continuing relationship between the boys and their father. What I am being asked to do is to ratify in fact a circumstance that has practically existed since 2008. The father spent from March 2010 to July 2011 in prison, as a result of a major incident of assault against the mother.

6. The mother met the father in 1996 and they were married in 1999.

7. T was born in July 1999 and M was born in 13 August 2000.

8. The mother alleges when the parties were first married the father only drank most weekends, but as the marriage went on he became increasingly more violent. She further says during the marriage the father was verbally abusive and physically violet.

9. The parties initially lived in South Australia and moved to Cairns in late 2005/early 2006.

10. The mother alleges in 2007 the father forced himself on her and had non consensual intercourse with her. The mother did not report this assault at the time to the police as she was scared, but reported this in 2010 to the CIB.

11. The mother says the father again abused her in 2008.

12. In February 2008 the parties separated. When the mother informed the father the marriage was over she alleges he became more violent.

13. The mother says the father again abused her in 2009.

14. The mother says in December 2009 a final settlement payment was made to the father after which he became more violent.

15. In late December 2009 the mother applied for restraining orders.  She alleges the father breached those orders.

16. The mother alleges in late January 2010 the father entered her workplace and vandalised the premises.

17. In February 2010 the mother alleges the father again breached restraining orders.

18. In March 2010 the mother alleges the father physically and emotionally abused her, and tried to kill her.

19. To the mother’s knowledge, the father has been charged with the following:

    19.1.On 20 December 2009:

    19.1.1.Wilful damage;

    19.1.2.AOBH x 2.

    19.2.On 6 February 2010:

    19.2.1.Stealing, menacing phone calls;

    19.2.2.Breach DV and possession of a knife.

    19.3.On 6 March 2010:

    19.3.1.Breach of DVO – entering dwelling at night;

    19.3.2.Use of violence;

    19.3.3.AOBH and breach bail.

20. The parties divorced in October 2010.

21. The father was released from prison in July 2011 on certain conditions.

22. The mother alleges some time during this year the father has again offended against her.  A charge in respect of this alleged offence is currently pending and due to be heard in August 2012.

23. I am informed by the mother that the father provides no financial support for the children.

24. I have got no doubt that the orders I make will enable the mother to continue to provide for the emotional and intellectual needs of the children. The mother has demonstrated that she is a responsible parent.

25. The overriding factor in this matter is the ongoing protection of the children to prevent them from being exposed to family violence and to allow the mother to continue her role as the sole parent of the children and find it is in the best interests of the children to make the orders which I have set out.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 July 2012.

Associate: 

Date: 6 August 2012