Ahmad and Kruise

[2007] FamCA 1195

FAMILY COURT OF AUSTRALIA

AHMAD & KRUISE [2007] FamCA 1195

FAMILY LAW – CHILDREN – ex-parte application – recovery order – threat to kill

Family Law Act 1975 (Cth)

APPLICANT: Ms Ahmad

RESPONDENT: Mr Kruise

FILE NUMBER: MLC 9534 of 2007

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 24 August, 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No Appearance 

Orders

1. That all times be abridged to allow the matter to proceed exparte.

2. That until further order the child born … August, 2006 live with the mother.

3. That until further order the question of the time the father is to spend with the child is reserved.

4. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the child born … August, 2006 deliver the said child to the mother forthwith, she being the person entitled to have the said child live with her, pursuant to orders made in the Family Court of Australia this day.

5. That until further order the father, by himself, his servants or agents be and is hereby restrained from removing or attempting to remove the said child born … August, 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. 

6. That as soon as practicable 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. 

7. That if the father takes or attempts to retake possession of the child after execution of the recovery order, he may be arrested without warrant. 

8. That the form 2 application filed this day be otherwise adjourned to 9:45 am. on 24 September, 2007.

9. That as soon as practicable the mother serve the father with the following documents :

   (a)       form 1 and form 2 applications filed this day;

   (b)      affidavit sworn and filed this day; 

   (c)      this order.

10. That any response of the father and all affidavits in support be filed and served no later than 18 September, 2007. 

11. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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.

12. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

13. That the preparation of these orders be expedited forthwith.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9534  of 2007

MS AHMAD

Applicant

And

MR KRUISE

Respondent

REASONS FOR JUDGMENT

1. This application for parenting orders and injunctions is brought on as a matter of urgency and I am satisfied I should dispense with all requirements for service at this time, in order to hear it on an ex parte basis.  The only evidence before the court is that of the applicant.  While the court must be cautious in those circumstances, its responsibility is to make orders likely to ensure the safety and stability of the child; it is the best interests of the child which are paramount.

2. The parties commenced a de-facto relationship in August 2005.  They have a daughter, born in August 2006.  The child was 11 weeks premature and very sick as an infant; she was two and a half months old by the time she came home.  She remains prone to chest infections.  The mother is pregnant with their second child, due within days.

3. The evidence of the mother is that the parties separated on 18 May 2007.  Since separation the father has spent time with the child, by arrangement with the mother.  She has deposed that while it was agreed he would have the child for a couple of days, he often stretched that to four or five days, making excuses why he could not bring her back.  Her evidence is that the father is dependant on drugs, mainly marijuana.  He is not in paid work; when they were together he would become abusive and violent when she did not give him money for drugs.  Her evidence is of physical violence directed at her, including during pregnancy. 

4. In her affidavit the mother deposed to the circumstances in which the child went to spend time with her father and his refusal to return her.

5. The mother was previously in a relationship with Mr D and he is the father of her two older children, M, born in November 1999 and W, born in March 2001.  He was convicted of attempted murder of the mother in November 2006 and is currently serving a 15 year sentence with a minimum of 10 years.  It is clear that the father is aware of the very significant assault suffered by the mother at the hands of Mr D. Indeed, the mother’s evidence is that he has recently reminded her of that attempt to kill her, in a threat made by a text message sent on 28 May, 2007, in which he said “. . . watch your back because I finish [Mr D’s] work off”. It is trite to say that a threat to kill is a serious matter. It is a criminal offence punishable with a potentially long sentence.  Were the court to find that threat proven, it would demonstrate not only violence directed at the mother but an utter disregard for the child’s welfare, physical and psychological. 

6. The court must be cautious when it has only the evidence of one party before it.  However, I am satisfied in this case that a recovery order should be made at this time, together with an injunction restraining the removal of the child from Australia. 

7. I do not propose to make any order altering existing parental responsibility but orders will provide for the child to live with her mother until further order and for her time with her father to be reserved.  When the case returns to court on 24 September the court will be in a position to consider all evidence then available, including that filed by the father, and determine what orders are then in the child’s best interests.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate

Date:  24 August 2007