Farouq & Ismat
[2021] FedCFamC2F 379
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farouq & Ismat [2021] FedCFamC2F 379
File number(s): PAC 1316 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 16 November 2021 Catchwords: FAMILY LAW - CHILDREN - Application to restrain the Mother from bringing the child into contact with the Mother’s current partner - where the Mother’s current partner has an extensive criminal history - where the Mother’s partner conceded drug use and is alleged to have mental health issues - where risk identified - restraints made for the protection of the child Legislation: Family Law Act 1975 (Cth) Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel & Marvel (No 2) [2010] FamCAFC 101
M v M (1988) 166 CLR 69
SS & AH [2010] FamCAFC 13Division: Division 2 Family Law Number of paragraphs: 48 Date of hearing: 5 November 2021 Place: Parramatta Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: Shelly Legal Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Thurlows Family Lawyers Solicitor for the Independent Children’s Lawyer: Ms Hernandez ORDERS
PAC 1316 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FAROUQ
Applicant
AND: MS ISMAT
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.That pending further Order, the Mother is restrained from doing any act or thing to cause or facilitate the child X born in 2018 coming within 500 metres of Mr B born in 1980.
2.Save as to costs pursuant to Order 3 below, the Amended Application in a Case filed on 6 October 2021 and the Response thereto filed 11 October 2021 is otherwise dismissed.
3.In the event either party seeks costs in relation to this interim application, then such party is to file a Minute of Order sought, Affidavit in support and written submissions of no longer than 2 pages within 14 days. A Responding Minute of Order sought, Affidavit in support and written submissions of no longer than 2 pages is to be filed within 14 days thereafter.
4.Unless a party advises Chambers in writing within 21 days that they wish for any such costs application to be heard orally, the determination of such Application for costs will be reserved to Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Farouq & Ismat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
Listed for determination is the Father’s application that the Mother be “restrained from bringing the child, X, born in 2018 from coming into contact, whether in person or by electronic means, with the mother’s new partner, Mr B, together with an order that the Mother pay the costs of such application.
By way of a Response to an Application in a Proceeding filed on 11 October 2021 the Mother seeks that the Father’s Application be dismissed together with an order for costs on an indemnity basis. By way of her Case Outline filed on 3 November 2021 the Mother advised that she would agree to an order on a “without admissions basis” restraining her from leaving the child in the unsupervised or sole care of Mr B, or permitting anyone else to do so.
The Independent Children’s Lawyer supports the injunctive order as sought by the Father.
The Father relies upon the following in support of the Order sought by him:-
(a)the Amended Application in a Proceeding filed 6 October 2021;
(b)paragraphs 1-12 of the Father’s Affidavit filed 21 July 2021; and
(c)documents tendered during the course of the interim hearing, marked as Exhibit A.
The Mother relies upon the following in support of the Order sought by her:-
(a)the Mother’s Case Outline filed on 3 November 2021 and the Minute of Order contained therein;
(b)the Affidavit of the Mother filed 11 October 2021; and
(c)the Affidavit of Mr B filed 3 November 2021.
The Independent Children’s Lawyer did not rely on any further documents.
Thus this hearing requires the determination of a very discrete and limited issue – that is, whether the child is subject to an unacceptable risk if he comes into contact (physical or otherwise) with Mr B. The Father proposes that the Mother be restrained from allowing the child to have any form of contact with Mr B. The Mother submits that any concerns as to the risk the Court may have with respect to Mr B will be sufficiently mitigated by a restraint upon her by way of injunction from leaving the child in the sole care of Mr B or permitting anyone else to do so.
BACKGROUND
The Father was born in 1983 and is 38 years of age.
The Mother was born in 1990 and is 31 years of age.
The parties commenced living together upon their marriage in 2017 and separated on a final basis in June 2018.
There is one child of the relationship, X born in 2018 (‘the child”). The child was born subsequent to the parties’ separation.
It is the Mother’s evidence that she met Mr B in approximately 2018. They commenced a relationship in approximately 2020. They separated in April 2021 but reconciled in July 2021 and remain in a relationship. It is the Mother’s evidence that they do not live together.
Interim Orders were made by consent by Judge Harman on 21 May 2020 that included:-
(a)that the child live with the Mother;
(b)that the child spend time with the Father on a graduating basis so that as and from 1 December 2020 the child would spend unsupervised time with the Father each Wednesday for 2 hours and for a day each weekend from 9am to 5pm; and
(c)that the child also spend time with the Father on special occasions including Christmas, Eid Al Fitr and Eid Al Adha.
Further interim Orders were made by consent on 10 November 2020 that included an order restraining the Father from approaching or attending within 500 metres of the Mother. An Order was made requiring both parties to keep the other informed as to the occupants of their respective places of residence.
On 16 April 2021 Ms C was appointed with the consent of all parties as the Court Expert to prepare a report for the substantive proceedings. That report has not as yet been released.
THE LAW
Despite my limited ability to make findings in respect of controversial facts in the context of a truncated interim hearing, I am not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 at paragraph 100 said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
I must also consider the Full Court’s statement in Marvel & Marvel (No 2) [2010] FamCAFC 101 namely, that where risk is alleged in interim proceedings, a conservative approach is warranted:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.
As identified by the High Court in M v M (1988) 166 CLR 69 at [78] the formulation of the parenting orders to be made by the Court depends on the nature and degree of risk presented. The formulation of orders are about balance. In determining the issue of risk, the object of the Court in this interim enquiry is to ensure that any unacceptable risk is ameliorated by appropriate orders and safeguards: Bennett & Bennett (1991) FLC 92-191.
In Deiter & Deiter [2011] FamCAFC 82 at [61] the Full Court stated with respect to the assessment of risk that:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE EVIDENCE
The Father during the course of the interim hearing tendered material produced under subpoena from the New South Wales Police Force. Such documents record that Mr B has been named by the New South Wales Police Service as a person of interest or suspect in an extensive number of incidents dating from 2002 to 2020 including personal violence offences, judicial offences, traffic offences, fraud and stealing.
Mr B is named as the victim in a malicious damage incident on 2 July 2020. It is recorded that at 4:00 am on 17 June 2020 Mr B was at home “tending to his young child who was awake at the time.” Whether the young child referred to is the subject child of these proceedings is not known. Upon hearing two loud bangs he exited his home to find the rear driver’s side mirror of his motor vehicle smashed. On the ground there was a brick with a note inside it which read “time to wake up, its war.” Mr B is reported as advising the Police that there “was a number of people who might have done it...” The Police were unable to progress the matter as there were no witnesses to the alleged incident and insufficient evidence.
On 25 June 2020 an Apprehended Domestic Violence Order was made restricting the behaviour of Mr B and for the protection of Ms Ismat for a period of 2 years. In the sworn statement given by Ms Ismat to the New South Wales Police Force on 17 June 2020 Ms Ismat stated that she had known Mr B for a period of 6 months; he is her ex-partner’s brother in law. She states that on 22 May 2020 she received a phone call from Mr B wherein he said to her “You got to sleep with one eye open”, “Haven’t you been wondering who is watching your house” and “I’m gonna put you in a body bag.”
Ms Ismat alleges in the statement that on 16 June 2020 she received a further phone call from Mr B and he made a comment in Arabic which roughly translated means:
“I’ll fix you up” or “I’ll show you”.
She further alleges that at approximately 4 am on 17 June 2020 (the same date as Mr B had reported the smashing of a window of his car and a brick with a note being left) she was asleep and received a phone call. Answering the phone, Ms Ismat states that she recognised the voice on the line as Mr B who said to her:
“You fucken little slut then” then “something about rocks and bricks” and then
“You know your kids, I’m gonna kill them.”
She immediately heard a female voice that she recognised as the Mother in these proceedings who stated “No, don’t mention the kids.” The phone call was then terminated.
Mr B asserts that these accusations were false. However, material produced under subpoena by NSW Police being page 4 of the Father’s Tender Bundle, records “Police called the Defendant on his mobile phone and spoke to him regarding the phone calls. The Defendant said he is trying to “stick up” for his current partner, and be the “mediator and peace keeper” in the matter – which he believes has “backfired” on him.” It appears that Mr B conceded at least making the telephone call to Ms Ismat.
He deposes that he agreed to an Apprehended Domestic Violence Order being made restricting his behaviour. “…..because I knew that I would never see Ms Ismat or have anything to do with her.”
An informant report of Detective Senior Constable Mr E to the Supreme Court in relation to a Supreme Court Bail Application (undated) for Mr B with respect to the following charges:-
(a)attempt to pervert the course of justice;
(b)Prohibited person possess a firearm; and
(c)State false name
records that upon his arrest on 12 August 2017 for an outstanding warrant Mr B consented to a police request to search his vehicle. A black Glock 26 handgun with a loaded magazine was located hidden inside the centre console. Mr B was a prohibited person with respect to the ownership of such a weapon pursuant to the Firearms Act 1996 as he had served a term of imprisonment for an offence under the Drugs, Poisons and Controlled Substances Act 1981. Mr B took part in a recorded interview and alleged that a “ Mr E” was responsible for the firearm being in the motor vehicle. In his record of interview “Mr E” gave a different version of events and alleged that Mr B had offered him $4,000.00 to “take the blame” for the firearm possession.
It is reported that subsequent to viewing CCTV footage, Mr B was charged with the above listed offences. He was found guilty and sentenced to a 6 month custodial sentence with 73 days already being served.
A document produced under subpoena and tendered prepared by Detective Senior Constable Mr F lists 17 charges laid against Mr B for alleged offences occurring in 2014. There are 5 charges of attempt to obtain property by deception, 13 charges of obtain property by deception, one charge of possess unregistered general category handgun, one charge of possess prohibited weapon and once charge of commit an indictable offence whilst on bail.
A report from Ms G to the Presiding Judge in the Supreme Court of Victoria dated 22 October 2016 states that Mr B had formally changed his name to Mr H. There is a further tendered document by an unknown author which reports that Mr H had been diagnosed with Attention Deficit Hyperactivity Disorder and Bipolar Disorder. He was prescribed methadone of 70 mg per day together with the antipsychotic and mood stabiliser Quetiapine of 100 mg a day.
A psychiatric assessment of Dr J, consultant psychiatrist dated 28 October 2017 with respect to Mr B records that:-
(a)a note was made of substance dependant issues and bipolar disorder and it was requested that the report address these issues;
(b)Mr B reported to the Doctor that after the murder of his two closest friends he left New South Wales for Victoria and changed his name;
(c)past medical history recorded damage to his nasal septum due to cocaine use and he needs surgical treatment for this;
(d)he described a history of heroin use for which he is now being treated with methadone at a current dose of 60 mg daily;
(e)he used cocaine from the age of 23 years;
(f)he has a longstanding history of methamphetamine use;
(g)he has suffered from depression and was at one stage self-harming;
(h)he has suffered from re-experiencing the symptoms of the murder that he witnessed including the gun to the back of his friend’s head. “He said that he is always wary and that he needs to have his back to the wall”;
(i)prior to his incarceration his place of employment was “shot up” and his boss “threatened by bikies” and this escalated his anxiety and his fear;
(j)he has had no contact with mental health services.
The doctor recommended a detailed treatment plan for Mr B including outpatient drug and alcohol counselling, psychiatrist review, psychological review and treatment.
Mr B does not materially dispute the allegations raised as to his criminal history and involvement with the Police.
He deposes that upon moving back to Sydney in 2018 he has “continued to turn my life around, abstain from taking any illicit substances as well as from any aggressive or violent behaviour.” He asserts that upon receiving a grant of bail in approximately December 2017 he attended a full time live in rehabilitation centre – the details of which are not in evidence. The Father asserts that he does not use illicit substances and has not done so since moving back to Sydney. There is no independent corroborative evidence before the Court that Mr B is abstaining from the use of illicit drugs.
In the event the Father had not issued subpoena for the production of documents to the Court as identified in these reasons the Court would not have been seized of the evidence recorded above. This, without more, weighs in favour of the relief sought by the Father.
The Mother conceded that there could be no serious contest that the material before the Court demonstrates matters that constitutes risk to the child.
It was submitted on behalf of the Mother that an assessment of the risk matrix requires that the Court assesses such risk proportionally as between the risks alleged and the means by which they are ameliorated and that the Order sought by the father is disproportionate to the risks alleged.
In support of the Order sought by the Mother it was submitted that the Father should have raised these concerns earlier in circumstances where she informed the Father in 2019 that she had met Mr B and that they were serious about each other. I do not find this submission persuasive. The Mother at this time (either because she did not know or she did not want to tell the Father) did not, according to her own evidence, inform the Father of the extensive criminal history of Mr B. She did not advise him that Mr B has alleged that he was the subject of threats and damage to his motor vehicle as late as 2020. She did not advise him that Mr B was the defendant in an Apprehended Domestic Violence Order made on 25 June 2020.
The totality of what the Mother deposes she told the Father was
he is from Melbourne, has had a bad past but it was 10 years ago and he is a changed person and has good intentions.
The Mother submitted that the order sought by her was sufficiently proportionate to any risk in circumstances where Mr B has not had any criminal matters since 2017. I do not find this argument persuasive again in light of the allegations made against him giving rise to the Apprehended Domestic Violence Order and Mr B’s allegations as to being a victim of property damage and personal threats as late as 2 July 2020.
The Mother further submits that the order sought by her is appropriate having regard to the close and loving relationship the child enjoys with Mr B. Mr B is not the child’s parent. Whilst the alleged close relationship is relevant, I place little weight on this factor at this interim hearing in circumstances where it is alleged that the child is at risk if he comes into contact with Mr B.
On balance, having regard to the extensive involvement by Mr B with the Police including the 2020 allegations that he has engaged in threatening conduct, his conceded drug use together with his alleged mental health issues, it is my view that at this time in the proceedings the child is exposed to an unacceptable risk in the presence of Mr B.
Thus the question to be determined now is – what Orders are to be made that sufficiently ameliorate this risk.
I am not at this time satisfied, having regard to the Mother’s alleged conversation with the Father wherein she asserts that Mr B has not been in trouble for the past 10 years, that the Mother will abide by an order simply restraining her from leaving the child in the sole care of Mr B as sought by her. It is unknown, in circumstances when the report to be undertaken by Ms C has not been completed for the substantive proceedings, whether the Mother has the capacity to appropriately protect the child.
The circumstances of Mr B being named as the victim in a malicious damage incident on 17 June 200 wherein Mr B alleges that his car driver’s side mirror was smashed and a threatening note left on a brick beside the vehicle cause me serious concern that the child will be at an unacceptable risk of physical harm were he to come into the physical presence of Mr B.
The Full Court has indicated in circumstances such as this matter the Court ought to act conservatively and protectively. On balance orders ought to be made restraining the Mother from allowing the child to come into physical contact with Mr B.
Whilst this Order will cause some difficulties for the Mother as she is in a relationship with Mr B, in circumstances where her evidence is that she and Mr B do not live together these difficulties can be overcome pending a final hearing in the matter.
I am not satisfied that the child having telephone, Facetime or other electronic communication with Mr B poses an unacceptable risk of harm to him and accordingly the injunctive order will not include this restraint as sought by the Father.
An Order will be made accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 16 November 2021
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