Younis and Anor and Mitanni and Ors
[2010] FamCA 430
•31 May 2010
FAMILY COURT OF AUSTRALIA
| YOUNIS AND ANOR & MITANNI AND ORS | [2010] FamCA 430 |
| FAMILY LAW – CHILDREN – Child related proceedings – Evidence relating to family violence – Murder of mother by father. FAMILY LAW – CHILDREN – Best interests of a child – With whom a child lives – With whom a child spends time. FAMILY LAW – CHILDREN – Parents deceased and/or incarcerated – Dispute between maternal and paternal families. FAMILY LAW – CHILDREN – Application or non-application of the usual sections and subsections of the Act in a case where subject child’s parents are not the parties. FAMILY LAW – CHILDREN – Meaning of “parent” – meaning of “relative of a child”. FAMILY LAW – CHILDREN – Application of Part VII of Family Law Act to non-parents. |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 |
| 1st APPLICANT: | Mr Younis |
| 2nd APPLICANT: | Mrs Gira |
| 1st RESPONDENT: | Mr Mitanni |
| 2nd RESPONDENT: | Mrs Mitanni (Snr) |
| 3rd RESPONDENT: | Mr Mitanni (Snr) |
| INDEPENDENT CHILDREN’S LAWYER: | David Duncombe |
| FILE NUMBER: | PAF | 509 | of | 2005 |
| DATE DELIVERED: | 31 May 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 3 - 11 March 2008 24 - 26 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Christie |
SOLICITOR FOR THE APPLICANTS: | Gerard O’Donnell |
| COUNSEL FOR THE 1ST RESPONDENT: | In Person |
| SOLICTOR FOR THE 1ST RESPONDENT: | N/A |
| COUNSEL FOR THE 2ND & 3RD RESPONDENTS: | Mr Heazlewood |
| SOLICITOR FOR THE 2ND AND 3RD RESPONDENTS: | James Papas |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dignan & Hanrahan |
Orders
That all previous parenting orders made in relation to the child Z born … July 2004 be and are hereby discharged.
That as between them the second and third respondents Mrs Mittani (Snr) and Mr Mitanni (Snr) (the paternal grandparents) have equal shared parental responsibility for the said child.
That the said paternal grandparents on the one hand and Mr Younis (the maternal uncle) and Mrs Gira (the maternal grandmother) (the first and second applicants) on the other, have responsibility for the day-to-day decisions concerning the child’s welfare and development whilst the said child is with them.
That the said maternal uncle and maternal grandmother spend time with the child as follows:
(a)During school term, each alternate week from after school Thursday until before church on Sunday morning save and except for every third such alternate week (each sixth weekend) when the conclusion of their time with the child shall be extended to before school on Monday, extending to before school on Tuesday in the event of Monday being for any reason whatsoever a pupil free day.
(i)The first of such periods of time shall commence on Thursday, 10 June 2010.
(ii)Such time shall commence on the first Thursday after school resumes in any term where the child has spent the first half of the preceding school holidays (as hereinafter defined) with the first and second applicants.
(iii)Such time shall commence on the second Thursday after school resumes in any term where the child has spent the second half of the immediately preceding school holidays (as hereinafter defined) with the first and second applicants.
(b)For one half of each school holiday period being the first half in years ending in an odd number and for the second half in years ending in an even number.
(i)“First half” shall mean the period commencing at 9am on the day immediately after the last day of the preceding school term and concluding at 9am on the Saturday nearest the midpoint of the holidays.
(ii)“Second half” shall mean the period commencing at 6pm on the Saturday nearest the midpoint of the holidays and concluding at 6pm on the Saturday immediately prior to the commencement of the next ensuing school term extending to 6pm on Sunday in the event that the first day of the next school term is for whatever reason a pupil free day.
That whichever family does not have the child with them for Christmas Day pursuant to these Orders in any year shall spend time with the child from 6pm on Christmas Day until 6pm on Boxing Day.
That all changeovers not being effected at the child’s school shall be at:
(a)In the event of delivering the child on Sunday mornings, the vicinity of the church at D;
(i)For a period of twelve months from the date of these Orders, the party/ies delivering the child to the vicinity of the church shall not leave their motor vehicle until the child has joined the paternal family. Thereafter the delivering party/ies may, if he/she wishes, enter the church.
(ii)Should the parties speak with each, they shall do so in a courteous and appropriate manner.
(b)On all other occasions at a McDonald’s family restaurant nominated in writing by the first and second respondents to the applicants, being the McDonald’s closest to the child’s place of school.
That the maternal family speak with the child by telephone each Wednesday between 7pm and 7.30pm with the paternal grandparents to telephone the household of the maternal grandmother, place the child on the telephone then leave him to speak in private and without being overheard.
That the said paternal grandparents seek the advice of an appropriately qualified medical practitioner or other health professional in relation to informing the subject child of the circumstances of his mother’s death, and as to any course of therapy or treatment that should be undertaken by the said child. Upon receiving such advice, the said the paternal grandparents shall carry out and put into effect such advice.
That the said paternal grandparents shall accept appropriate advice in respect of any matters involving the child’s speech and matters of general health and wellbeing, and shall act in accordance with such advice.
That the said paternal grandparents keep the maternal family advised of all medical conditions for which the child may receive treatment.
That the said paternal grandparents keep the applicants advised of all matters concerning the child’s education, religious upbringing and sporting activities.
That the said paternal grandparents authorise and direct any school attended by the subject child to make available to the maternal family, at the expense of the maternal family, all reports, notices and any other documents pertaining to the subject child as would be issued to parents of children attending the school.
That the said maternal uncle and maternal grandmother, and the said paternal grandparents shall be entitled to attend school activities as so notified. All parties shall, on any such occasion, act in a courteous and appropriate manner to all other parties.
That the said maternal uncle and maternal grandmother, and the said paternal grandparents, shall be entitled to attend any sporting activity in which the child is involved. All parties shall, on any such occasion, act in a courteous and appropriate manner to all other parties.
That the said maternal uncle and maternal grandmother on the one hand, and the said paternal grandparents on the other, shall immediately notify the other in the event of any accident or emergency requiring medical care whilst the child is with that family.
That the said maternal uncle and maternal grandmother on the one hand, and the said paternal grandparents on the other, shall keep the other informed of their residential address and contact telephone number and shall notify the other of any change to either within forty-eight hours of any such change taking effect.
That Mr Mitanni, the first respondent father, spend time with the child on no more than three occasions in each year. Those occasions shall be facilitated by the first or second respondents taking the child to any correctional establishment where the father is held on those occasions.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Younis and Anor & Mitanni and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 509 of 2005
| Mr Younis |
First Applicant Maternal Uncle
| Mrs Gira |
Second Applicant Maternal Grandmother
And
| Mr Mitanni |
First Respondent Father
And
| Mr and Mrs Mitanni (Snr) |
Second and Third Respondent Paternal Grandparents
REASONS FOR JUDGMENT
This very sad matter concerns the future of Z who was born in 2004.
The Parties
Because of the complexity of this matter, it is appropriate that I identify the parties at this stage.
The first applicant, Mr Younis, is Z’s maternal uncle. The second applicant, Mrs Gira, is the child’s maternal grandmother.
The first respondent, Mr Mitanni, is Z’s father. He was married to the child’s mother, Ms Younis.
The second and third respondents, Mrs Mitanni (Snr) and Mr Mittani (Snr), are respectively the child’s paternal grandmother and grandfather.
Mr David Duncombe, solicitor, is the Independent Children’s Lawyer appointed in this matter.
Introduction
The matter comes before the Court in this fashion. Z’s mother was killed in 2004 by the first respondent who was taken into custody on the same day. At that time, the child was with his paternal grandparents, the second and third respondents, and has remained living with them since this time.
The first respondent subsequently stood trial for the murder of Z’s mother. In 2006, he was sentenced to imprisonment consisting of a non-parole period of twenty years to commence in 2004, expiring in 2024, with a balance term of six years and eight months commencing in 2024. The earliest date of eligibility for parole was specified as a date in 2024. I understand that the first respondent’s appeals against both conviction and severity of sentence have been dismissed. Therefore the subject child will be twenty years of age before his father is eligible to be released from prison. Thus the matter before me concerns who is to be responsible for the child Z until he reaches adulthood.
On 1 January 2005 the first applicant arrived in Australia and shortly thereafter commenced contact with the child Z through the auspices of the Department of Community Services. Subsequently, on or about 5 April 2005, the first applicant made an application in respect of the child. In May 2005 the second applicant arrived in Australia and became a party to the proceedings. On 14 June 2005 Judicial Registrar Halligan made interim orders granting the applicants time with Z each Tuesday and Friday from 10am to 2pm.
Subsequently on 11 May 2006 orders were made by the Registrar for the appointment of an Independent Children’s Lawyer.
The Parties’ Applications and Materials
The applicants relied upon their amended application of 31 May 2005. In support thereof, they relied upon:
·Affidavit of the first applicant of 26 October 2006;
·Further affidavit of the first applicant of 18 July 2007;
·Affidavit of the second applicant of 30 November 2006;
·Further affidavit of the second applicant of 18 July 2007;
·Affidavit of Ms S of 20 July 2007;
·Affidavit of Ms H filed 20 July 2007; and
·Affidavit of the first applicant of 21 February 2008.
The first respondent filed a response on 23 July 2007 and relied upon an affidavit of 4 November 2006.
The second and third respondents relied upon:
·Response of 24 May 2007;
·Affidavit of the third respondent filed 6 December 2006;
·Further affidavit of the third respondent filed 23 July 2007;
·Further affidavit of the third respondent of 28 February 2008;
·Affidavit of the second respondent of 6 December 2006;
·Further affidavit of the second respondent of 23 July 2007;
·Affidavit of the second respondent of 28 February 2008;
·Affidavit of the father’s sister Ms M of 7 December 2006;
·Further affidavit of Ms M of 23 July 2007; and
·Affidavit of Mr W sworn 23 July 2007.
In addition there was a report of Dr R in this matter, dated 26 July 2007.
Brief Background
A brief background of the matter is as follows:
·In 1933 the third respondent paternal grandfather (Mr Mitanni (Snr)) born in Africa. He is now aged seventy-six.
·In 1947 the second respondent paternal grandmother (Mrs Mitanni (Snr)) born in Africa. She is now aged sixty-two.
·In 1957 the second applicant maternal grandmother (Mrs Gira) born in Africa. She is now aged fifty-three.
·In 1967 the first respondent father (Mr Mitanni) born in Africa. He is now aged forty-three.
·In 1976 the mother (Ms Younis) born in Africa.
·In 1978 the first applicant maternal uncle (Mr Younis) is born in Africa. He is now aged thirty-two.
·In 1994 the first respondent father marries his first wife, Ms SA.
·Two children are born to that marriage; E in 1995 and V in 1997.
·In 1998 the father and his first wife separate.
·In 2002 the mother and first respondent marry in Africa.
·In February 2002 the father returns to Australia.
·In August 2003 the mother arrives in Australia following immigration procedures.
·The parties then reside together.
·In mid-2004 the subject child Z is born.
·In October 2004 an incident occurs where the mother is left away from home. Police contact the father. The father informs police he does not wish the wife to return home. The mother then goes to a refuge. Z is in the care of the paternal family.
·In October 2004 the mother obtains orders from the Local Court for the child to live with her and have contact with his father on Tuesday and Sunday of each week between 9am and 5pm.
·In late 2004 the mother is killed. The father is remanded in custody and remains in custody. The subject child remained with the paternal grandparents.
·1 January 2005 the first applicant uncle arrives in Australia.
·Late January 2005 first applicant uncle commences to spend time with the child each Tuesday from 1pm to 3pm arranged by the Department of Community Services.
·5 April 2005 the first applicant maternal uncle commences proceedings in this Court seeking residence of the subject child.
·11 May 2005 Orders are made by a Registrar for the appointment of an expert.
·16 May 2005 the second applicant maternal grandmother arrives in Australia and commences having time with the subject child. She thereafter becomes a party to these proceedings.
·In 2006 the father is convicted of murder and sentenced to imprisonment.
·In July 2006 apprehended violence proceedings between the families are settled on mutual undertakings.
·In September 2006 the first and second applicants are granted permanent residency in Australia.
·8 December 2006 orders made for the child to spend time with the first and second applicants with a regime of increased until, from 22 January 2006, the child is to spend from 10am Monday to 4pm Tuesday and 10am Thursday to 4pm Friday with them.
The hearing before Me
The hearing of the matter commenced on 3 March 2008 and occupied seven days. The matter thereafter was heard for a further three days commencing 24 November 2008.
In 2008 judgment was delivered by the Court of Criminal Appeal dismissing the first respondent father’s appeals against conviction and severity of sentence.
At the commencement of the hearing before me, the applicants, the second and third respondents and the Independent Children’s Lawyer were represented by counsel. The first respondent father appeared in person. The father took part in the proceedings but clearly, having regard to the sentence imposed upon him to which I have already made reference, will not be directly involved in the life of the child in the sense that he will be incarcerated until the child is twenty years of age.
The Husband’s Trial and Conviction
It is of some importance that the circumstances surrounding the death of Z’s mother are set out. They form a background to the position taken by members of both the paternal and maternal families and accordingly are of real significance.
The father was tried by a jury in the Supreme Court of New South Wales. Upon the conviction of the father, his Honour made remarks on sentencing and in which he set out the facts surrounding the death of the mother. The following paragraphs are directly taken from his Honour’s judgment:
7 You travelled to [Africa] to meet [the mother]. You had been there for fifteen days when you married her [in] January 2002. You returned to Australia shortly thereafter, apparently on or about 8 February 2002. Your wife’s visa needed to be arranged and she did not arrive in Australia until August 2003.
8 Overall the marriage was far from happy. There were a number of incidents, to some of which I will later refer. Except where a third person was present as a witness, I have only your version of events and of course I have no version from your wife.
9 Despite unpromising beginnings and an apparent mistrust of your wife, which you said was consequent upon her stripping the monies from an account which you made available to her, she became pregnant and [in] [mid] 2004 a son, [Z], was born. However, you became separated from your wife and eventually she was staying in a women’s refuge with the child. Among other things, an apprehended violence order was taken out. Nevertheless, and in breach of the rules of the refuge, your wife continued to have contact with you and you met from time to time.
10 At the core of the reasons that you propose for this second marriage failure is an assertion that [your wife] entered it for the purpose of facilitating the migration of her family to Australia, particularly a younger brother to whom she was close.
11 In evidence in the sentencing proceedings, your sister [Ms M] asserted that [your wife] had admitted to her that she, [your wife], had told your parents that this was the case. I do not accept this evidence or the assertion that your wife entered the marriage as some sort of sham.
12 Far from her family seeking you out as a husband for her in order to enable them to come to this country, on both the versions that you had given to [the author of the pre-sentence report] and [the psychologist], it was your family, whether through your father or mother, who sought her out as a wife for you.
13 I would accept that [your wife] may have expressed the desire for the company of her family in this land to which she was a stranger, but I am convinced that your assertions on this subject are gross exaggerations. I do not accept your sister as a reliable witness. It is an example of her tendency to unacceptable overstatement that she said you have “always been a wonderful family man and an amazing father” who “absolutely loves, adores and cherishes all three of his children as they do him”. At the time of this assertion by your sister, in a document dated 13 April 2006, it was the fact as I have mentioned that you had not seen the children of your first marriage since some time in 2001.
14 Contrary to your proposition, to the extent that there was any desire to have the marriage succeed, I am satisfied that it emanated from your wife. On the fatal night when you had arranged to spend it together at [O], Ms [ZO] testified and I accept that she had observed that your wife was “excited and couldn’t wait” and was “getting dressed up” for the anticipated dinner and reunion.
15 Some evidence was given concerning what was described as [your wife] flirting towards you even in the unlikely circumstances of court proceedings. That would seem to me to be more consistent with her trying to attract you than to repel or otherwise mistreat you.
16 [Your wife] had come to reside in the refuge after an extraordinary event which occurred [in a remote rural area]. Apparently, the purpose of the excursion was to visit [an establishment] in the area but you did not arrive there and, whatever provoked it, you abandoned her and left her on foot in bushland […].
17 Fortunately Detective Inspector [SE], an off duty officer returning from a private camping trip, found her on the roadway. He observed her shaking and crying and in a high level of distress. By getting her to speak to a female officer at [the local] Police Station and confirm his identity, he was able to persuade her to accompany him to the police station where she met Acting Inspector [ID] who, amongst other things, contacted you by telephone.
18 I regard the content of this telephone call as more revealing of your general attitude to your wife than the protestations of affection and the like which you have made, and your claims that it was you who was making an effort for the marriage to succeed.
19 Inspector [ID] said to you “This is Inspector [ID] from […] Police. Is that Mr [Mitanni]?” You replied “Yes”. She said “I have your wife at the police station very upset. She’s complained that you kicked her out of the car in the […] area and left her there”. Your response was “She needs to understand her place here and respect me. I am on my way home and I don’t want her to come back”. Inspector [ID] then said “Wait just a minute, it’s not your place to say whether or not your wife returns home. If she makes a complaint to the police about your treatment of her you may find you will be looking for somewhere else to live”. You then rejoined “We live with my parents and we don’t want her here”. Inspector [ID] then said “Well, it would be in your best interest if you attend the […] Police Station and give your version of events”. You then said “I can’t get there, I have a baby”. I am satisfied that you did not regard your marriage as a partnership and you considered [your wife] a subordinate who was subject to your dictate.
20 Of course, at this time the baby [Z] was only a few months of age.
21 As I have said, irrespective of what later happened, what you said to Inspector [ID] was convincingly demonstrative of the attitude that you exhibited towards your wife.
22 I move now to the night of [your wife’s] death. At [O], you engaged in sexual intimacy with each other. As I have said, I have only your version of what occurred after that. I am sceptical of your testimony generally and I note that, both during your evidence at trial and after conviction in the sentencing hearing, you frequently paused, and apparently deliberated for lengthy periods, before answering and the impression which was conveyed to me was that you were contriving your answers rather than responding candidly.
23 Your version is that [your wife] again raised the question of her family’s migration to Australia and that you then realized that she was not seeking genuine reconciliation. I do not find this credible, and even assuming it to be so, your subsequent behaviour cannot possibly be justified. I observe that there is evidence of your purchase of liquor in that afternoon, […], and that the post mortem sample later analysed detected no alcohol in [your wife’s] blood. The probability was that you were disinhibited to an extent by your consumption of liquor but, whatever triggered your attack, you struck your wife severe blows to the head with [a weapon]. Your explanation is that you did this to force her to release a [hold on your hand]. No doubt at some stage of a struggle, [your wife] did [injure your hand] but the seriousness of this can be gauged by the extent of treatment which consisted of application of antiseptic and a bandaid.
24 Of more critical significance to my mind is the fact that [your wife] did not die as a result of the savage beating which you inflicted upon her with the [weapon]. She died of asphyxiation. To the extent that it was suggested, albeit somewhat faintly, that this may have occurred when you had your hand over her mouth and nose because your finger was in her mouth, I reject the suggestion.
25 I am satisfied beyond reasonable doubt that, after the attack with the [weapon] you applied something to [your wife’s] mouth and nose and thereby killed her by asphyxiation. I am conscious of the absence of precise evidence demonstrating what the implement was and that the evidence does not establish that it was the pillow which was found in the room, but that absence of precise identification of what you used does not create any doubt in my mind about it being your act which caused the death by asphyxiation. I am further satisfied in all the circumstances that at the time you caused the death, it was your intention to kill your wife.
26 I am fortified in reaching the latter conclusion somewhat by your subsequent conduct. You were familiar with [O], having stayed there some nine or ten previous occasions, although this was the first occasion that [your wife] had been there. You left [O] after killing her, avoiding those areas where you might have been filmed by security cameras which were installed. You did not seek to contact [O staff] in order to summon an ambulance nor did you do anything yourself about summoning assistance although in addition to a [public] phone you had a mobile phone with you.
27 In fact you used it and telephoned a taxi. After some delay however, you got your own car and drove yourself to a police station. You may also have spoken to your father before you entered the police station where you said, somewhat disingenuously, to the constable on duty that you thought you had done something horrible to your wife. It is a trivial matter but offers an indication of a self-centred importance that you insisted upon speaking to an inspector.
28 This was arranged and you spoke to Inspector [KR] and gave him the same sort of information that you had given to the constable except that you added that you thought you had killed your wife because you hit her a few times over the head with a [weapon].
29 By the time you told Inspector [KR] these things, I conclude that you had considered your situation and realized that it was inevitable that you would be affixed with responsibility for hitting her with the [weapon], which could easily be demonstrated, and that you were deliberately concealing the subsequent activity by which you had ensured her death by suffocation. I accept that statement.
I accept that statement of facts for the purpose of these proceedings.
From paragraph 30 to paragraph 51 his Honour dealt with matters concerning sentence. At paragraph 32 his Honour said this:
32 I do not assess your offence at the lower end of the notion of range. Whilst I would accept that your multiple strikings of your wife with the [weapon] occurred during an explosion of passion, whether provoked by the comparatively minor [injury to your hand] or her raising the subject of her family or anything else, your subsequent act of killing her by asphyxiation falls well outside the category of lower objective seriousness.
Further his honour, at paragraph 33, said:
33 Your act was deliberate and separate from the attack with the [weapon] and, as I have found, it was intentionally fatal.
His Honour at paragraph 39 dealt with any suggestion of provocation leading to the mother’s death. His Honour found at paragraph 45 this was not an appropriate case in which to depart from the standard non-parole period. Accordingly, at paragraphs 51 and 52 of the judgment his Honour said this:
51 [Mr Mitanni], for the murder of [Ms Younis] you are sentenced to imprisonment consisting of a non parole period of twenty years commencing on […] 2004 and expiring on […] 2024 with a balance term of six years and eight months commencing on […] 2024.
52 The earliest date of eligibility for parole is specified as […] 2024.
It is against this background of the offence committed by the father against the mother of Z that I must then proceed.
A significant body of oral evidence was given in addition to the affidavit material that I have identified. The following witnesses gave evidence before me:
The maternal grandmother Ms Gira; the maternal uncle Mr Younis, Ms S (a refuge worker), Ms H (a friend of the mother). These are the witnesses called in the applicants’ case.
The father, the first respondent, then gave evidence in his case.
Evidence was then given by the second respondent paternal grandmother, Mrs Mitanni (Snr), with the assistance of an interpreter.
On the last day of that part of the hearing, the third respondent paternal grandfather, Mr Mitanni (Snr), commenced to give evidence.
On the next occasion that the matter returned to Court, I heard further evidence of the paternal grandfather and during the course of his evidence Dr R was interposed.
I then heard the conclusion of the paternal grandfather’s evidence and then I heard the husband’s sister, Ms M.
This concluded the oral evidence before me. Submissions were made in writing.
The Evidence Before Me
It is obvious that the parties and their supporting witnesses all have very strong feelings in this matter. The applicants are devastated by the death of their sister/daughter respectively. It appears to me, and I will try to deal with this matter in detail at some later stage, that they feel there is some measure of blame attaching to the father’s family for the manner in which he dealt with Z’s mother.
The paternal family feel that they are being unfairly held accountable in this respect. It seems that Z is seen by both maternal and paternal families as something of a prize to be fought over. I am concerned that the maternal grandmother sees the child as a replacement for her now deceased daughter.
I do not propose to set out in full the evidence of parties and witnesses. However it is necessary for me to refer to some of their evidence in order to understand the complexities and difficulties that surround this matter.
The first witness to give evidence was the child’s maternal grandmother. She gave her evidence with the assistance of an interpreter. She indicated that her son G was now living with her and attending TAFE. She said she was receiving no government benefit. She attended the Church. Under cross examination she indicated that she accepted that the husband’s parents were upset at what had occurred. She referred to them as “killers” and still believes this is so. She had read documents prepared by her daughter. She does not feel she will ever be able to have a good relationship with the father’s family.
She said she no longer wishes to take Z to Africa. She wishes to stay in Australia.
She is aware of the report prepared by Dr R. She is aware that Doctor recommends that the child remain with his father’s family and see his mother’s family members from time to time.
She conceded she found it difficult when the child passed between the two families. She is aware Dr R recommended she have some counselling to deal with the loss of her daughter. She said that only God could help her. When asked if she would attend counselling with the Mitanni family she said she was not psychiatrically ill. Again she said she did not want assistance from anyone and that God solved her problems. She said she was not interested in any friendly relationship with the Mitanni family as they had killed her daughter. She had not met Z until she came to Australia. She says she does not say anything to the child about the Mitanni family.
She said that she went with her son to return Z to his paternal grandparents unless she was unwell.
She said she had been deprived of her daughter and that she saw her daughter in Z. She said she does not say anything to the child when he goes to his father’s family. She then said she tells the child “go and you’ll come back to grandmother”. She confirmed that she wanted custody of the child. “The family” she said referred to “all of us”, his aunties and her husband in Africa. She said they have a home in Africa. She said none of her children other than those already here, want to come. She said if she leaves Z “I’m going to die”.
She says when she sees Z she remembers her daughter. She does not get upset, she is happy to see him. She does not know about telling Z how his mother died. She said again that only God can help her. She said she tells Z that his mother is with Jesus and Our Lady. She does not know who will tell him that his father killed his mother. She was adamant that her son-in-law had killed her daughter. She was concerned that if Z associates with the father he might become like him.
She then said that she wanted to get Z because he compensates for the loss of his mother. She said that she loves him.
They had, as living accommodation, a two bedroom unit and the maternal uncle comes when Z is there otherwise he lives in another suburb. At home, the usual language was Arabic. Z speaks very well. She is aware that he is to see a speech therapist. Both families want him to start school next year (i.e. 2010). The grandmother said she wants him to grow up to be “the best in all the world”. She said her household will speak English. G will learn English and then go on to teacher training.
The grandmother spoke of an episode at court when the father was sentenced. She said she had spoken loudly so God could hear her. She said she was talking to God not Mrs Mitanni (Snr). She asserted that the paternal grandmother had made a gesture to her and when it was put to her that that had not occurred she said that it had. The paternal grandmother said she was going to appeal to prove his innocence. She could not remember if she had used the word “killers” to the paternal family.
She then said that the marriage between her daughter and the husband was arranged. She said the families had met more than once before the engagement.
After the marriage he returned to Australia and her daughter lived at first with his family and then with her family. She continued at university during this time.
After her arrival in Sydney, the mother had written no letters but had rung to tell her of Z’s birth. She did not speak to the father or his parents. She said the mother had told her she had started a court case because the husband’s family had the child and she was going to get him. Her daughter told her that the husband was hitting her then kicked her out of the house. Her daughter had told her she had been chucked out into the bush and that the husband had torn her clothes. Her daughter had rung from the police station. At the time, Z was with his paternal grandparents. She said her daughter had told her later that there had been a court case and she had the child.
She had spoken to her daughter a day before she died. Her daughter had told her that she was going back; they were going to O and would make up. She heard from the bishop in Australia, not the father’s parents, of her daughter’s death. There was no communication before she came to Australia from either the paternal grandparents or the father. She first saw Z a month after she arrived in Australia. She had help from the Church.
She said that she realises that they will always be his grandparents.
When asked about future communication she said she did not know and that maybe with the passing of time she could manage.
She would want to know if the child went to hospital while with his other grandparents. She said there was a need to have a means of communication. She said if orders were made requiring her to communicate with the other grandparents, she would do so.
She said her daughter had told her that her husband gambled and borrowed money. The father had called her a dog, a poor maid and had hit her. She said that she wanted the child to live with her and to see his other grandparents on alternate weekends. When asked about the father potentially wanting a relationship with Z she said if that is so, why kill his mother? She said all she tells the child is that his mother is in heaven. She said she would tell him about his father when he is eighteen. However if he asks, she will tell him that his father killed his mother. She said she would obey orders for Z’s sake.
She identified a document as being in the handwriting of her daughter.
The next witness called was the maternal uncle who gave his evidence with the assistance of an interpreter. He said that he was a cleaner and manager of a hospitality establishment. He had read that Z was aggressive and having tantrums in the affidavits filed by the paternal grandparents. He agreed that there was at present some aggression; sometimes he was struck by the child, the last occasion occurring shortly before he gave evidence. He denied he had hit Z with a stick. He spoke of difficulties with childcare and said they had acted to socialise the child.
He said that he had never received Australian benefits.
He said he commenced proceedings as he wanted Z to go back to Africa. He did not have permanent residence. He agreed that it would have meant little contact with the Mitanni family.
He said the grandparents were not killers but raised someone who killed. If they bring up Z, he was concerned that he would become a criminal. He said he was not sure how they would bring the child up.
When asked if he thought the husband had killed because of his upbringing, he said it was a possibility that he was brought up in violence and this was why he did not want the Mitanni family bringing up the child.
He knew that Z had a loving relationship with the paternal grandparents. When asked if it was possible to say good things about the paternal family he said he would not mention them at all. He could not say good things about them; at present he does not mention them.
He said that possibly he was the head of his family; he wanted to remain involved in Z’s upbringing. When asked about undertaking counselling to deal with the Mitanni family and Z he said he would not undertake counselling if ordered and he knows that his mother does not want counselling. However he later said that if it was for Z’s benefit he agreed there may be a need for counselling.
He said that “we have lost a daughter and sister and their son is sitting in front of them”. He said he had finished high school. He agreed he had said that the child should not see the Mitanni family at all. He indicated that the paternal grandparents were encouraging Z to swear at him and his mother and that when he swears he is repeating what is said in front of him, for example: “you are yukkie”.
He said that “[Z] loves us” and by this I took him to mean his mother and himself. He said he had not attended his sister’s wedding. He said that he has a temporary license which later was identified as a Learner’s license. He agreed he only drove when someone was next to him. He had never referred to any member of the father’s family as a murderer. He said the Mitanni family “want nothing to do with us” and the feeling is reciprocated. He said, for Z, he could do anything. He could not say “yes” or “no” when asked if the paternal grandparents loved the child. He agreed Z was in the middle and thought of both his mother’s family and his father’s family and his family. He said that if ordered, he would see a counsellor in order to communicate. He said he would go for Z’s benefit. He agreed he wanted Z to live with him and his mother. He said if he had to he could live with her but at the moment he lived away from her sometimes and with her sometimes. He said if he married, he would live nearby but he had no present plans for marriage.
When cross examination continued the next day he said he thought further about housing and would make an application with the Department of Housing. He had not thought anything further as to what might occur if he married. He said that he and his mother had discussed school for the child. It was put that he and his mother had not done a lot of planning. He said that he had thought of Christian or Catholic schools but no particular school.
He said if Z asked why his father was in jail, he could not tell him that he had killed his (Z’s) mother. He had not spoken to anyone at the church. However he agreed it was possible that children of the congregation may know of what happened and a child may talk to Z about that. He said that Z should not see his father in jail.
The next witness was Ms S. She was a person who had been a refuge worker and had assisted the mother. She had read documents that the mother had shown her.
The final witness in the maternal family’s case was Ms H. She had been a friend of the mother’s and she had become friendly with the maternal uncle. She sometimes visits the maternal grandmother.
She said the maternal uncle has a Learner driver’s license. She spoke of a hand gesture she had observed with the palm out and a single pointing finger. It was a rude gesture within African culture. It was put to her this gesture was not made and she said it happened. She then said the paternal grandmother had said to the maternal grandmother “you’re a whore, mad like your daughter, I’m going to make an appeal and get him [her son] out of jail”.
She had heard the maternal grandmother say to the paternal grandmother “he has been punished on earth and will be punished by God”. She had never heard the maternal grandmother say “they are killers”. She confirmed she was happy to help collect and return the child. She said she does it as an act of love.
The next witness called was the father. He was questioned about the episode in October 2004 when the wife was left in a rural area. He said that he and the wife were arguing. They had gone for a drive to preserve privacy. The argument concerned the wife bringing her family to Australia. The husband said she insisted on getting out of the car and he let her do so. She would not then get back in the car. He said he then rang his parents who told him to go back and get her. He then received a call from the local police.
He was then asked about financial matters and he said he had been working with a company and decided to resign. He said he did this because he chose family over career. The family had moved out to a rental home by his choice. They had moved to his parents’ home where they stayed. This was approximately two months before Z’s birth.
He asserted he had a loving relationship with his son. Whilst he was in prison, he saw Z when his parents brought the child down. He remembered he was a happy child. He said he had noticed changes in Z’s speech. He said his older son had needed speech therapy.
It was put to him that he had three, not two, older children and he said he was not aware of the third child. He was referred to a child of a woman LE and he said he was not sure that that child was his daughter. He was then asked about his first wife and correspondence and statements made by her in his trial.
He said that he had not seen his two older children since 2001. He said he had attempted to see them. There were court orders in force which gave him the right to see the children and he tried to enforce those orders. He said that he knew his first wife did not want him to see the two children of their relationship.
He stated that he did not know if his first wife could have children and was surprised when she became pregnant. It was put to him that he wanted her to undergo an abortion which he denied. It was put to him that he had said to her that if she kept the child it would disrupt their wedding and he said “no”. He said that his parents had travelled back and forth between Australia and Africa. He was asked about making contact with a woman on the internet and agreeing to meet her in America. It was put to him that his first wife became concerned at his gambling and he said that he used 10–15 per cent of his income to fund this.
He denied ever assaulting his first wife or throwing a chair at her. He never hit his daughter on the hand or face. It was put to him that he told his first wife that if she left, he would hunt her down and get the children. He denied this. He said there had been interim protection orders made and agreed that as at June 2005 he owed approximately $17,000 for child support but said he was out of work at the time and had been for about nine months. He said he was concerned that Z was being abused when he was absent from his (the father’s) parents. When asked who was the perpetrator of mental abuse he said he could not say. He said the language the child has used was never used in his parents’ home. As to physical abuse, he said the child had told him that his maternal grandmother pushed him over. He believes the child is at risk, he said he has no evidence to support this.
He grudgingly agreed that he had left his wife in an isolated area which he was not familiar with. He continued to assert that the wife wanted to get out of the vehicle. He agreed that he received a phone call from a police inspector whom he told what had occurred. When it was suggested that he return and collect his wife, he agreed that he said words to the effect of he could not get there as he had a baby. He said that he was thankful she was with the police. He said on the day of the episode of the wife getting out of the car that she had told him that she did not want to stay with his parents. He said that he wanted Z to live with him after he and his wife separated with her having supervised contact. His mother he said was very involved in Z’s care.
He said that he had come to the conclusion that his wife had married him only to get to Australia. It was put to him that on 16 October he had been in touch with the Department of Immigration and that this was not the first letter he had written. It was put, and he agreed, that he had contacted the Department by telephone on a number of occasions. He said he was angry because she had made accusations against him. He said he was angry when he wrote his letter and he provided information to them as he wanted them to know his side of the story. It was put to him that he was concerned she would obtain benefits which he denied. He told the Department that she had forged documents to support her spouse visa. He told them so they might carry out an investigation.
He said he was not suggesting that if she was removed, Z should not go with her. He said however that it was his intention to have Z live with him. He did say to her words to the effect “how could you do this to me so as to abuse me and the system”. He said that at the time he was angry and confused and again repeated that she wanted to return to Africa. But she could not go and take Z.
He said that if they were together, he could reinstate his sponsorship of her.
It was put to the husband that after Z’s birth, his mother stayed with his sister for three or four nights a week and the husband said this was not so, that he had asked his mother to help with the child.
He said that he and his deceased wife met through the church and the relationship grew. He went to Africa to be married. He left Africa after thirteen days of marriage to make arrangements for a visa. This was at first rejected then accepted.
He denied he had ever hit or verbally abused the wife. He denied that he ever kicked her, locked her out or called her a donkey or animal or told her she was of no value. He said he purchased phone cards for her to remain in contact with her family.
He said that up until the time she left there had been multiple arguments. He denied that she had ever run on to the balcony and he had pulled her hair at any stage.
He denied that he ever said that if she told anyone he had hit her, he would kill her and throw her away.
He agreed she wanted to move from his parents. They had argued on 3 October about his parents. He denied that his father had ever sworn at her or spat at her. He (the paternal grandfather) had never said “take her away”.
He said that he did not keep her out of the car but was in fact asking her to get back into the car. He had never said “don’t come back”. However he did agree that he told police he did not want her back. He said he did not know the wife had ever complained about him hitting her until after they had separated. He was aware however that a statement that had been produced indicated that she had complained. He was aware that she had complained in late 2003 that he had locked her out and had kicked her. He said that he speaks Arabic reasonably well but did not read it. He did not hit his wife. He had never heard his father describe his wife as a servant.
He said that he never went to the casino without her during their marriage. It was put to him that he had suggested to the wife that she go ahead and kill herself. He denied this. He said that immediately following separation he wanted Z with him.
He described what had happened to his wife as a tragic accident. He said that what he did was self defence. He used his left hand to stop her screaming. This is vastly different to the findings made by the learned trial Judge when imposing sentence. It was put to him that his complaint that his hand was injured by the wife was a gross exaggeration and he said that it was not. He said he had argued with her about her family coming to Australia. He said that it was necessary that they needed to focus on their own family as they now have a child and it was necessary to establish their lives. He said we discussed our future and I told her about a job interview.
He then said she started to scream to attract attention. He said he was trying to calm her and put his hand over his mouth. He said he estimated this was between 4.30am and 5am. He said he had a mobile phone and there was a phone in the room however he drove to the police station from where he rang his father before he spoke to police. Since then he had been in custody.
He had complained that the maternal uncle did not provide financial support for Z but agreed he was not providing any support whilst he was in custody. He was concerned that Z would not be supported if he lived with the maternal uncle.
He had sought, following separation, that the child live with him and the mother have supervised time. He said that if he were released (at this stage his appeal had not been determined) he would stay with his parents and he knew that his parents supported the child living with him. He accepted that the maternal grandmother had come to Australia to care for the child. He should spend alternate weekends from 9am Saturday to Sunday evening. He asserted that Z was at present unhappy spending time with the maternal family. He said he assumed the child would see him once a fortnight. He denied he had ever seen his father hit his wife and he had never heard either of his parents speak to her in an offensive manner or ask her to leave their house.
He denied that his first wife had ever told him that his father had acted inappropriately to her.
He never heard his parents call her a bitch, servant or maid. He never heard them say she was dumb or stupid or that she was to do the jobs she was told to do.
He then said that there had never been discussions about members of her family coming to Australia before they were married. He confirmed she arrived in Australia in August 2003. Shortly thereafter he had contacted a TAFE about English courses but there were none available until the following year. However he was referred to the Australian College of Languages and his wife started a course in October 2003.
The husband said that he attended every appointment at Westmead Hospital. He said he had lost his job in April. He said that his wife was his responsibility and until the birth of Z, he was doing all he could to make the relationship work. When the child was one or two months old, the husband said he formed the view that the wife had used him and never meant their marriage to be a proper marriage. He said that she had told him that it was a marriage of convenience. He, however, had loved her. He said he continued to love her.
He said that he had been angry but never lost that love. When asked if he loved her why he had written to the Department of Immigration he said he was angry and wanted to inform the Department. He said he had been told by police that he could restrain her.
As to the night upon which the mother was killed, he said that he grabbed her from behind, kneeling behind her with his left hand across her mouth, his aim was to calm her, she injured his hand, he hit her, he subsequently learned, five times. He noticed blood coming from her head, he said he panicked and went for help. He did not attend to her injuries. He said he did not remember what he said, he was frightened she might die. He did not mention it to O staff and did not telephone anyone for assistance. He drove to a police station and demanded to see an inspector.
He did not ask anyone to tell his wife’s mother.
When asked why he required his wife’s time with Z to be supervised, he said she might need assistance for breast feeding. He said the wife had commenced proceedings in the Local Court and after orders were made he had lodged an appeal. He said the wife had threatened him and he feared she was unstable. He agreed that on 22 October 2004 interim orders were made against him. He said he had done everything to make the marriage work, including giving up employment.
When asked what he would tell Z when he asked why he was in jail, the father said “exactly what happened”. He said he accepted full responsibility. He had discussed with his parents that he would be told the truth. He said he had not offered any apology. He said that he thought all groups should be involved in parental responsibility and, if released, he would seek to take day to day care of the child over time. He would not exclude other people. He accepted that Z had effectively lost both parents and the surviving members of his family on both sides were in conflict. He said that he did not intend to kill his wife. He also said that his wife did not deserve what happened.
He went on to say that he still had concerns for Z’s stability.
The next witness called was the paternal grandmother who gave her evidence with the assistance of an interpreter. She denied that she had ever said that the deceased was not welcome in her home. She said she was never rude to her. She treated her like her daughter. She said the present arrangement was not suitable for Z as his life had been disturbed.
The grandmother said that her son was a good man and that which had happened i.e. the murder of his wife, made her very sad. She said her son was successful and all his life had been good. She continued to think of him as a very good man. She was asked about the existence of a number of photographs, some of which came into evidence. She was asked if she had described her son as a very good person to the Department of Community Services in 2005 and she said she could not remember. When she was asked to describe her son now she said she did not know what to say; as a mother she sympathised with him but did not agree with what he had done, it was hard for her to say at present. It was not correct to take life.
It was put to her that her husband had given a description of their son and she said she was not aware. She described her son as a good father, one hundred percent. They tell Z that he has a good father. She supported her son’s appeal saying that she approved everyone has a chance to appeal. She agreed that on leaving the court after he son was sentenced she had spoken of appealing but said it was not said to the maternal grandmother but to a friend that was with her. The maternal grandmother was in close proximity. She denied she had pointed her finger at the maternal grandmother and shaken her hand in front of her face. She said the maternal grandmother had never contacted her. She was scared of what had occurred. She had reported to police that she was frightened that the maternal grandmother might attack her.
She denied that her daughter Ms M had a disability.
She said she was sixty years of age. She said she had been in hospital for thirteen days to have in inflamed appendix removed. She denied that she had refused to authorise the Department of Community Services to make contact with her doctor.
She cannot recall when her son and his first wife had lived together. She used to visit her son when he lived away from her. She did not remember the addresses at which he lived. She said she had a good relationship with the father’s first wife and she saw the children of that marriage and spent time with them. She looked after those children when necessary. She did not remember when she last saw E and V, she said the children lived in Queensland. She denied she told Dr R that she saw only two of nine grandchildren. She said in respect of those children of the first marriage that Z was their brother and they need to know him. She said she had three other grandchildren but she did not see them or their mother. She now concentrates on two grandchildren; C and the subject child Z.
She said that there had been discussions concerning the wife and her son marrying. It was put that there had been arguments between the husband and the wife in which she and her husband had joined. She denied this. She said that the wife talked of wanting her family to come to Australia but said that she and her husband were not involved. She again said that whilst she and her husband were present during arguments between husband and wife, they did not become involved.
She said she had advised her daughter-in-law to be patient. She said she got involved in a friendly way, without taking her son’s side.
She said Z was small at birth but she did not know why. She had gone with the mother to her doctor a few times. She said, when asked if she knew that the maternal grandmother and uncle had permanent residence when she swore her affidavit on 6 December 2006, that this could have been the case. She said she read English a little and read Arabic.
She said she did not attend the wife’s funeral but was unable to say why. She said no letter or card had been sent to her family. When asked about communication or contact with the mother’s family between her death and their arrival in Australia she was unable to make any comment. She said she had asked the bishop and priests to contact them. No arrangements were made for the mother’s family to see Z. Certainly no arrangement for the grandmother to see him during the first month she was in Australia. She said that DOCS contacted her and they agreed to time. As at 12 October 2005, they were not willing to provide Z for access because it was disrupting his routine. DOCS had decided that they had no resources for supervision, and supervision was not required, so that supervision stopped. She said they had not provided time previously because they were concerned the uncle would take Z to Africa.
She agreed that from time to time they had made complaints to DOCS. She denied having said that she thought the maternal family did not feed him. She has asserted that she is concerned at the child swearing and that his manners have changed. She says that Z says his uncle hits him with a stick. She said Z does not tell lies.
When asked about Z speaking of his grandfather hitting him with a stick on the hand, she said her husband does not hit him. She conceded it was perhaps possible that the child was not correct in speaking about his uncle. She said the child was on a waiting list for surgery. The mother’s family did not know about it because communication was impossible. She thought a solicitor’s letter had been written. She said the child was on a waiting list for speech pathology. It was put the child was referred on 22 August 2007 to which she agreed. It was her understanding the waiting time was approximately eighteen months.
The witness said she wrote her affidavit in Arabic and did not read it in English before signing. Her husband read it to her in English. She mentioned questions by the maternal uncle and her husband had read the maternal uncle’s affidavit. She then said she read it in English and understood it because she had written answers in Arabic. She understood words in the affidavit with help from her husband. She said the occasions on which Z was taken to see his father were decreased because he was moved to a different jail.
She said that Z needs things to be done before he starts school.
Her granddaughter C does not ask why her uncle is in jail. C is eleven years of age.
She spoke of her son being released on appeal but then she said she did not know, she just hopes. If her son were released and came to live with her she would welcome him, he could stay as long as he liked.
She said that Z comes back to her making sexual gestures which must have been learnt from the mother’s family. She said however she did encourage Z to go.
She said on 21 February when the worker took Z through for contact, she heard him vomit but was told he was okay. It was put that she knew the child was happy with the maternal grandmother. She said the child was upset at changeovers and made himself sick. It was put that he went happily with the maternal grandmother and she conceded she had been told this by a person she named as “W”.
She did not accept that on 25 February she would not let the worker pick Z up and on 28 February it was put that she told the worker she was not happy to let the worker carry Z through. She said that she had told the worker to “try”. On 22 January the child was not happy. He had lost weight. The witness said she was not happy about the child’s behaviour; he was waving his index finger which seemed to her unnatural in a child his age.
The child had reported to her that the maternal uncle hit him and she believed this.
On 3 February Z did not want to go.
She said the child said his maternal grandmother hits him on the hand with a stick. She said that she had stayed at the centre for up to one-and-a-half hours trying to get him to go. It was put that the child was being supervised when he complained of the maternal grandmother hitting him. The witness said this was not true. It was put to the witness that she knew the child enjoyed going on every occasion. The witness said maybe. She agreed that if the maternal family found a preschool on Tuesday and Thursday mornings, she would drop the child at that place.
When asked whether Z ever asked for his mummy, she said no. She said I show him a photo and it is important that he knows who she is. He does not understand, he is still young, he doesn’t know that he does not have a mother, he knows C has a mother and he knows we are his grandparents.
Z is too young to know why his father is in jail and they want to seek the help of a psychiatrist to know when to tell him about his mother. She spoke to a doctor at Westmead who said the child was too young to be told. The person was identified as Mr RS, a psychologist. The witness thought they had seen that person once or twice and there had been no follow up. Mr RS was told that the child was not being adequately looked after. She said the child swears at toys and throws them. She said that since time with his mother’s family had increased so have these things.
She said she tries to calm him. It was difficult to obtain appropriate appointments as the child was only with her on Wednesday and that was the day she took him to playgroup. She says Z has friends at church, most of whom have a mum and dad living with them. She agreed it could be that he knows he is different.
She said she was sure that the other family (I understand this to mean the mother’s family) would never agree to cooperate. When asked if she thought about why the mother’s family would take this position she said that she thought the mother’s family thought her family was the cause, and that we killed their daughter. She then said she had never spoken to any member of the mother’s family after the mother’s death.
She said “on our side, we wish to have dealings between us and we want them to forgive us”. When asked why she had waited until now to offer an apology she said it was because Z had started to grow and he is the one paying the price. She could not write to them because she did not know their address. She agreed she knew solicitors who were acting. She said she thought about how she would feel if the same thing happened to her daughter Ms M.
She said Z’s speech is not clear; “only I understand”. She said the child’s hearing has been tested and they are on a waiting list for speech therapy. No enquiries had been made to the public trustee to see if any funds could be made available. It was put that when the maternal grandmother enrolled Z in preschool that she was critical and she said that she had so little time with him.
She said C knows that her aunt is dead. She does not know how to discuss it with her. She said when she knows how to do so, she will discuss it with the children. C, she said, was excited when Z was born.
She said her son is in jail because he took a life. She does not know the effect on C until she sees a specialist. She has not done that yet with Z because he is still so young. C still has her mother. At changeovers she feels Z is nervous and not at ease. She tells Z that she’ll be there when he comes back. She said she never shows that she is unhappy. In fact, she says she is not unhappy when he goes.
She said that she ceased communication with her daughter Ms Y at about the time of the mother’s death.
She said that she has not seen Ms Y’s children because of distance to them since the accident. She said Ms Y’s husband stopped her from seeing her family. She said Ms Y told her that her husband forbade her to see her mother. It was put to her that she had refused to tell the Department of Community Services Ms Y’s telephone number; she said she did not remember this. I do not accept this answer.
She said she last saw the children of the husband’s first marriage when E was five and V was three. She said they have never seen Z but must know him. So far as she is aware, they do not know they have a brother. She said she cannot contact their mother.
She said that surgery has not yet been performed on Z and there has been no notification of a date for surgery.
She said that surgery at the Children’s Hospital on 4 October 2006 had been cancelled by her husband. The husband believed that the surgery could wait and was only cosmetic surgery. I am not satisfied that this is so.
I will particularly order that the paternal family to authorise the school Z attends to pass information and materials to the maternal family. I have made mention in these reasons for judgment as to the desirability of both families attending at Z’s school.
I propose to make specific orders for the parties to keep each other informed of any accident or emergency that occurs while Z is in their care. I will require the parties to keep each other advised of their addresses and contact telephone number and I will order that there be contact by telephone between Z and his maternal family each Tuesday between 7pm and 7.30pm.
The orders that I make are then those as set out at the commencement of these reasons for judgment.
I certify that the preceding four-hundred-and-eleven (411) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier
Associate:
Date: 31 May 2010
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Costs
-
Remedies
-
Procedural Fairness
0
0
1