Farouq & Ismat (No 3)
[2022] FedCFamC2F 1712
Federal Circuit and Family Court of Australia
(DIVISION 2)
Farouq & Ismat (No 3) [2022] FedCFamC2F 1712
File number(s): PAC 1316 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 13 December 2022 Catchwords: FAMILY LAW – CONTRAVENTION – three charges permitted to be relied upon by the applicant mother - whether an injunctive order pursuant to section 68B of the Act falls within the provisions of Part VII Division 13A or s 112AD of the Act – where it is found that the respondent father has contravened orders of the court without reasonable excuse on two of the charges – where it is found that it is probable that the mother herself has contravened orders and where the evidence of the applicant mother and the maternal grandmother is misleading at best – where it is found that the father contravened the order with a reasonable excuse for doing so with respect to the third charge- where it is appropriate to dismiss the Application-Contravention in the circumstances with no order as to costs. Legislation: Family Law Act 1975 (Cth) ss 4(b)(i), 13A, 60CA, 64B, 68B, 70NAA, 70NAC, 70NAE, 70NAF, 70NBA(1), 70NCB, 70NDB, 70NEB(1), 70NEF(2), 112AD Cases cited: McLintock & Levier (2009) FLC 93-401
Savage & Savage [2017] FamCA 93 at 51
Winch & Jackson [2015] FamCAFC 75
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 14 September 2022 Place: Parramatta Solicitor for the Applicant: Mr Dura of Counsel Solicitor for the Respondent: Ms Giacomo of Counsel ORDERS
PAC 1316 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ISMAT
Applicant
AND: MR FAROUQ
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
13 December 2022
THE COURT FINDS THAT:-
1.The Father contravened Order 6(b) made 16 April, 2021 at 2:30pm on 2 April 2022 with reasonable excuse.
2.The Father without reasonable excuse:-
(a)contravened Order 2(b) made 16 April 2021 at 5:00pm on 16 April 2022; and
(b)contravened Order 6 made on 10 November 2020 at 5:00pm on 8 January 2022.
THE COURT ORDERS THAT:
3.The Application-Contravention filed by the Mother on 13 May 2022 is dismissed.
4.There be no order as to costs.
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 (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH:
INTRODUCTION
This is an Application-Contravention filed by the mother on 13 May 2022 alleging that the father without reasonable excuse contravened orders made by the court on 16 April 2021 and 8 January 2022.
The parties commenced living together upon their marriage in 2017 and separated on a final basis in June or July 2018.
There is one child of the relationship, X born in 2018 (“X”). X is currently four years and one month of age.
The father is the applicant in the substantive proceedings and the respondent in the contravention application.
Significant judicial resources have been applied to this matter since its commencement. To date the father has filed four applications seeking substantive interim orders and the mother has filed two. Each party has filed further interim applications seeking procedural orders and there have been further interlocutory objections to subpoena. Both parties have filed an Application-Contravention alleging the other has contravened orders.
The matter has not yet been heard on a final basis. Despite this, the mother has to date incurred legal fees in excess of $450,000.00. It is anticipated she will expend a further $100,000 to the finalisation of the matter.[1] The father has incurred legal fees in excess of approximately $130,000.00. It is anticipated he will expend a further $40,000 to the final hearing of the matter although this does not appear to include an estimation for Counsel’s fees.[2]
[1] Mother’s Costs Notice filed 10 November 2022.
[2] Father’s Costs Notice filed 30 August 2022.
BACKGROUND
A raft of interim orders have been made in this matter to date. The relevant orders for the purposes of this application are as follows.
Orders 5, 6 and 7 made on 10 November 2020 provide that:-
(5)By consent, that for the purpose of facilitating the Father’s time with the child the child shall be delivered to the Father’s residence at the commencement of his time with the child by such person as the Mother may nominate, and the Father’s nominee, but not the Father himself, shall deliver the child to [K Street, Suburb L] at the conclusion of the Father’s time with the child, and in this regard, the Father or his nominee must ensure that a safety car seat is installed in the vehicle and that the child is properly restrained whilst the child is in the car.
(6)Pending further Order, the Applicant and/or his agents are restrained by injunction from:
(a)Assaulting, harassing, intimidating or interfering in any manner with the Respondent;
(b)Approaching or attending within 500m of the Respondent’s residence, including but not limited to the RM’s home, being [K Street, Suburb L];
(c)Sending any third party, including but not limited to any private investigator, and/or surveillance service, or taking any other step personally or via an agent to follow the Respondent or any member of the Respondent’s family for the purposes of discovering her place of residence.
(7)The Court notes that Order 6 is made for the personal protection of the Respondent.
Order 2 of the Orders made by consent on 16 April 2021 provides:-
(2) That the Father spend time with the Child as follows:
(a) Each Wednesday from 4.00pm to 6.00pm.
(b) In Week One: Each Saturday from 9.00am to 5.00pm.
(c) In Week Two: Each Sunday from 9.00am to 5.00pm.
(d) During the month of Ramadan:
(e)That the time referred to in Order 2 A be extended to 7.30pm commencing 16 April 2021 and concludes at the end of Ramadan.
Order 1 made on 16 November 2021 provides:-
(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.
THE CHARGES
The Application-Contravention filed by the mother contains 20 alleged contraventions by the father. The mother was permitted to proceed on three of the contraventions alleged as selected by her.
The following charges were laid and pleas entered:-
Charge One
·The respondent father without reasonable excuse on Saturday 8 January at 2:30 pm attended K Street, Suburb L, New South Wales in breach of Order 6 of orders made 10 November 2020.
·Plea: Admitted but with reasonable excuse.
Charge Two:
·The respondent father without reasonable excuse on Saturday 2 April 2022 at 5:00 pm failed to ensure that his nominee returned the child to K Street, Suburb L in the state of New South Wales in accordance with Order 2B of parenting orders made on 16 April 2021. The child was instead returned to K Street, Suburb L New South Wales at 8:00pm.
·Plea: Admitted.
Charge Three:
·The respondent father without reasonable excuse on Saturday 16 April 2022 at 5:00 pm failed to ensure that his nominee returned the child to K Street, Suburb L in the state of New South Wales in accordance with Order 2B of parenting orders made on 16 April 2021. The child was instead returned to K Street, Suburb L New South Wales at 6:50pm.
·Plea: Admitted.
THE LAW
It is uncontroversial that Charge Two and Charge Three fall within the provisions of Part VII Division 13A of the Family Law Act1975 (Cth) (“the Act”).
There is no dispute that with respect to Charge One the father has admitted to contravening an injunctive order pursuant to section 68B of the Act for the protection of the mother. Submissions were made by counsel for each of the parties as to whether a contravention of an order pursuant to section 68B absent reasonable excuse falls within the provisions of Part VII Division 13A or section 112AD of the Act. Both Counsel agreed that to an extent it would be open to the court to consider the alleged contravention as either a breach of a section 68B order or pursuant to section 112AD of the Act and that the defence of reasonable excuse is available to be pled by the father in both circumstances.
Is an injunction pursuant to section 68B of the Act a parenting order? Section 64B of the Act states:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(h) a child to whom the order relates; or
(i) the parties to the proceedings in which the order is made;
(j)the process to be used for resolving disputes about the terms or operation of the order;
(k)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Thus an injunction pursuant to section 68B of the Act is not a parenting order. Part VII Division 13A however, applies to “orders under this Act affecting children”: s 70NAA.
Pursuant to section 70NAC:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
An “order under this Act affecting children” is defined in section 4 of the Act to include:
(a) A parenting order; or
(b) An injunction granted by the court;
(i) Under section 68B; or
(ii)Under section 114 in so far as the injunction is for the protection of a child;
…
Section 4(b) (i) is not limited by the wording as found in s4(b) (ii) that the injunction must be for the protection of a child.
I am thus satisfied that all three of the conceded contraventions of the father are of orders “affecting children”. The contraventions therefore fall within the provisions of Part VII Division 13A of the Act.
The mother bears the onus of proving the contraventions. The standard of proof is on the balance of probabilities, having regard to the gravity of the allegation: section 70NAF of the Act. If a contravention is found the court must then determine on the balance of probabilities whether the father had a reasonable excuse. The father bears the onus of establishing such reasonable excuse.
Section 70NAE sets out the meaning of reasonable excuse in relation to contravening an order. For the purposes of Division 13A, the circumstances in which a party may be taken to have had a reasonable excuse includes:-
·the respondent did not understand the obligations imposed by the order and the court is satisfied that the respondent ought to be excused in respect of the contravention; or
·the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a party (including that party or the child) and the period of the contravention was no longer than was necessary to protect the health or safety of the party in danger.
Whilst section 70NAE sets out the circumstances which can give rise to a “reasonable excuse” it does not limit its meaning. There may be circumstances falling outside section 70NAE that nevertheless the court finds is a reasonable excuse.
Counsel for the mother quoted the below extract from the case of Savage & Savage [2017] FamCA 93 at 51:
It is readily apparent that the Court must determine “reasonable excuse” objectively and disregard the alleged contravener’s own motives or rationale. There must be a determination of reasonable excuse based on belief on reasonable grounds.
CHARGE ONE
The father has admitted the contravention in charge one but contends he had a reasonable excuse.
The father conceded that he was aware of orders 6 (a) and 6 (c) made on 10 November 2020 but was not aware of the order he contravened, being order 6 (b) by which he was not to approach or attend within 500 metres at K Street, Suburb L (“the K Street, Suburb L property”). His evidence was that “ignorance is not an excuse.” I find it improbable and do not accept the father’s evidence that he was aware of the restraints pursuant to Orders 6 (a) and 6 (c) made on this date but not 6 (b). This contention is additionally contradictory to the father’s contention as set out later in these reasons that he was of the view that it was acceptable to contravene order 6 (b) as both parties had not insisted on strict compliance with it leading up to the date of the contravention he has conceded.
I find it improbable and do not accept that the father could not recall receiving a copy of the orders from his solicitors. I find that the father was aware of the order made restraining him from approaching within 500 metres of the K Street, Suburb L property. I am satisfied on balance that the father was aware of his obligations imposed by the order.
I find that the father on Saturday 8 January at 2:30pm attended K Street, Suburb L, New South Wales in contravention of Order 6 (b) of orders made 10 November 2020.
I thus now turn to a determination as to whether the father had a reasonable excuse for so doing.
In summary it is the father’s case that he was felt it was acceptable to drive past the K Street, Suburb L property on 8 January 2022 in contravention of court orders as both parties had consensually contravened the court orders leading up to this date. The father asserts that as he was driving past the property he observed Mr B with X in the backyard of the property in contravention of a court order restraining the mother from allowing X to come into contact with Mr B. The father was concerned for X’s safety and attended upon the property and filmed/took photographs of Mr B in the backyard.
The maternal grandmother and the mother both assert that the person who was at the property was not Mr B. Their evidence as to who was at the property on this date is rather obtuse.
The Maternal Grandmother’s Evidence
The maternal grandmother deposes that on Saturday, 8 January 2022:-
·The mother attended her home with X and left X in the maternal grandmother’s care whilst she ran some errands. In addition to the mother and X, there were other members of the maternal grandmother’s family at her home for a celebration of her birthday including her son, her daughter-in-law, her grandchildren and “a sixteen year-old male who I do not wish to identify as he is under the age of 18 years old. On that date, I recall that he was wearing a white T-shirt and red shorts.”
·The maternal grandmother annexes to her affidavit a photograph of an unidentified young man wearing red shorts and a white T-shirt. She then deposes that: “I do not wish to identify how I obtained this picture as the male in the picture is under 16 years of age.”
·Mr B was not present at her home on this day and has not attended her home whilst Mr B has been present subsequent to the injunctive order being made in November 2021.
·After being told by her grandchildren at approximately 2:30pm that the father was present at the home and arguing with the maternal uncle she went outside and observed the father standing on her fence yelling profanities and arguing with her son whilst X was outside. She repeatedly asked the father to leave and took X inside. She then went back outside and began recording the father on her phone standing on the fence.
·At approximately 2:40pm she telephoned the mother and told her what was happening.
·She could not stop crying after this incident and was concerned for her family and her own safety.
Whilst the Police were called to the property the maternal grandmother does not give any evidence as to their attendance in her affidavit.
During the course of her cross examination the maternal grandmother’s evidence was that:-
·She ran outside her home when her grandchildren told her the father and her son were outside fighting. She observed her son Mr M and the father arguing. She observed the father was recording what was occurring on his phone and she also recorded events for approximately two minutes on her phone. The argument involved the father raising concerns that Mr B was present at the home in the presence of X.
·The Police attended at the home. She did not tell the police that the man at her home was not Mr B as “The Police did not ask me whether that man was Mr B or not.”
·She conceded that she initially told the mother that she did not know the man that was at the home but that “…later on I knew he was the family friend…he just came through the fence.”
·When questioned further her evidence was: “All I witnessed is my son Mr M and Mr Farouq they were having an argument and they were both recording…that is all I remember.”
·She told the mother that it was not Mr B at the home. She denied that Mr B was at her home on that day. She denied that any of the photographs of the male person contained within the father’s affidavit are Mr B.
·She confirmed her written evidence that one of the people who attended her home on that day was a 16 year old who she did not wish to identify as he is under the age of 18 years. She denied that she would not identify this 16 year old person as she is trying to pretend that he was at her home on the day in question rather than Mr B and affirmed her evidence that the reason she would not show his face is because he is under the age of 18 years. She denied that the reason she has not photographed the face of the person depicted in her affidavit is because she knows the father saw the face of the person that was in her backyard that day.
·When asked if the photographs contained within the maternal grandmother’s and father’s affidavits are of different people, she responded: “It is not Mr B.”
Whilst there were technological issues during the course of the grandmother’s evidence, I was able to observe her for a period during the course of her cross examination and carefully listen to her answers. I found her to be evasive at times in her answers to questions. I formed the view that she wanted to give her version of events rather than answering questions put to her by counsel. I approach her evidence with some caution.
The Mother’s Evidence
It is the mother’s written evidence that on Saturday, 8 January 2022 at approximately 2:40pm she received a telephone call from her mother who advised her that the father was present at the K Street, Suburb L property. She immediately drove home. Upon arriving home she saw the father walking to his car. At approximately 4:00pm the police arrived and “asked to take a statement.”[3] The mother does not give any further evidence as to the interactions between herself or her family with the police on this day.
[3] Affidavit of Ms Ismat filed 13 May 2022, paragraph 62 to 64.
In her oral evidence in chief the mother:-
·Denied she attended the home of the father on 7 January 2022 to give him some medicine. She asserts this was on 5 January 2022. She had her son with her on that date.
·Stated she never heard her son tell the father he was going to spend time with “Amou” or “Amou.” In her family there are approximately 9 people who X refers to as “Amou.”
·The photograph attached to her mother’s affidavit is not Mr B, it is Mr B’s nephew.
In cross examination the mother:-
·Denied there were times when the father attended at her home for the purposes of changeover of X and denied there were times when the father attended at the K Street, Suburb L property for the purposes of delivering medicine.
·Denied that she took X to see the father at his home on both 5 and 7 January 2022.
·Denied that X told the father that he was going to see “Brown Amou.”
·Confirmed she was not at the K Street, Suburb L property at the time the father was present. She asserted in those circumstances that she could not state who was present at the maternal grandmother’s home when she was not.
·Denied that any of the photographs attached to the father’s affidavit are photographs of Mr B.
·Conceded that the father had attempted to call her on this day but she missed the call as she was on the phone to her mother.
·Conceded that she spoke to Mr B on that day on one occasion. She denied that this occurred when he was in the garden of the maternal grandmother’s home and is shown in one of the photographs attached to the father’s affidavit. She denied that she knew that Mr B was in her mother’s home as she was speaking to him when the father arrived.
·Agreed that the police attended at her home on that day and spoke with her and asked her details as to the other males that were present at the time of the maternal grandmother’s home when the father was recording. She agreed that the police asked her this as they wanted to speak to those males. She agreed that she told the police she could not give her brother’s details as he has a confidential job and he is only one in five people that have this job and he refused to speak to the police as it will affect his position at his workplace.
·Stated that the police spoke to everyone that was there, from her understanding. Confirmed that the police asked her who the male was that was present at the property and she told them she did not know as she wasn’t there at the time, and the only person who was there who had a hat was her brother Mr M.
·Conceded she spoke to her family members and asked them who the man was and they could not provide an exact name.
·Asserted that she was on the phone to her solicitor at the time confirming that the father was not supposed to be there.
·Conceded that her brother is not on affidavit to provide evidence as to who is in the photographs annexed to the father’s affidavit.
·Conceded that Mr B has not sworn an affidavit deposing that he was not there on the day. Denied that this is because she does not want him to be seen. Denied that this is because he looks like the man in the photographs attached to the father’s affidavit.
·Denied that the face of the person attached to the maternal grandmother’s affidavit is not shown as she does not want the father to be able to say that that is not the person he saw in the garden at the property.
The Father’s Evidence
The father’s evidence was that, notwithstanding the orders made on 10 November 2020 restraining the father from attending changeovers in person or within 500 metres of the K Street, Suburb L property, there have been “regular periods” where the mother has consented to the changeover arrangements being varied. The variations have included both the father attending in person at the K Street, Suburb L property and both of the parties attending changeovers in person. The father alleges that this occurred on at least two occasions in late December 2021 to 8 January 2022. He further attended “frequently” at the K Street, Suburb L property with the knowledge and consent of the mother during the course of 2021. Exhibited to the father’s affidavit are text messages between the parties the father asserts occurred on 1 January 2021 and proves that the mother is proposing that the father return X directly to her at the K Street, Suburb L property. The father further deposes that he has delivered items required for X by agreement with the mother to the letterbox at the K Street, Suburb L property.
On 2 January 2022 the father tested positive for COVID 19. The mother delivered medicine to his home on 5 January 2022.
It is the father’s evidence that on 7 January 2022 the mother attended the father’s home with X and stayed in the motor vehicle whilst the father had a talk with X for approximately five minutes. At this time the father alleges X said: “We are going to spend time with Amou now Daddy.” The father is aware that X calls Mr B “Amou” which is Arabic for “Uncle.” The father deposes that the mother appeared to become irritated at X saying this and told the father she had to leave and drove away. The father became concerned at this time that the mother was bringing X into contact with Mr B. He did not contact the mother nor the mother’s solicitor with respect to his concerns.
The father deposes that the following day he was meeting a friend in Suburb N and drove past the K Street, Suburb L property on the way to his friend’s home. He did this as:
Given the extent of contact the Mother had with me in previous days including my attendance’s at the [K Street, Suburb L] Property and her attendances upon my home, I didn’t see it unreasonable or a threat taking the short route to my friend’s home being via [K Street, Suburb L] .[4]
[4] Affidavit of Mr Farouq filed 13 September 2022, paragraph 31.
Upon driving past the K Street, Suburb L property it is the father’s evidence that he was able to see X and Mr B through the broken wooden fence. He deposes that he was “shocked and very worried for X’s safety.” The father stopped and exited his vehicle and went towards the boundary of the fence whereupon he clearly saw the face of Mr B together with X. He started filming Mr B with his phone camera whereupon Mr B turned his back to the father. The mother’s brother, Mr M (“Mr M”) approached the father and asked him to leave.
The father deposes that he was very concerned and scared for the safety of X in having contact with Mr B. He kept asking Mr B to turn around and face the camera. Annexed to the father’s affidavit is a screenshot of a recording taken by the father showing a male wearing a pair of red shorts and a white T-shirt. He then called the police and returned to his vehicle to wait for the police to arrive. Whilst he was waiting the mother and her other brother, Mr O arrived at the home. Mr O is another brother of the mother. The father deposes he heard the mother on her mobile phone saying words to the effect of “you are not meant to be here within 500m.”
The father gave oral evidence in chief in response to the late Affidavit of the maternal grandmother. It was his evidence that the photographs of the individual attached to the maternal grandmother’s affidavit do not depict the same person as the person he saw on 8 January 2022 at the K Street, Suburb L property. They are in the same clothes, but not the same people. The father recognised the person depicted in the photograph annexed to the maternal grandmother’s affidavit as Mr P, the mother’s stepbrother.
In cross examination it was the father’s evidence that:-
·The mother came to his home on two occasions being on the 5 and 7 of January 2022.
·His affidavit should have stated that X referred to Mr B as “uncle”.
·He did not put this in his Affidavit as he wanted to “restrain myself”.
·He was driving along K Street, Suburb L as it “is the easiest route to take” and it was the “most appropriate route for me to take that day.”
·He could clearly see as he was driving past what was happening in the backyard of the K Street, Suburb L property as there are fence palings missing and Mr B’s face was directly through that fence paling. It was “as clear as daylight” that it was Mr B. X was running behind him. He then stopped the car and pulled his phone out to record. He did not immediately call the police as he was concerned that if he didn’t continue recording for his own defence that he was there purely for the safety of X. It is the father’s view that X is at an unacceptable risk in the presence of Mr B and he was worried that he was going to leave the property.
·It took between approximately three to six minutes to call the police. He stayed at the property until the police arrived despite constantly being told to leave as he was there to protect the welfare of his son.
·He conceded that looking back his behaviour was not appropriate but the mother was breaching the orders that had just been made weeks earlier and he was “flabbergasted” that she was doing so. He was firm in his evidence that it was Mr B that was present at the property.
·When the police attended they spoke with the father and spoke with the mother. It was his evidence that the police told him that no one was cooperating. He showed them the video that he had taken.
·He asserts that the maternal family have staged the photo to look like Mr B.
·He tried to remove his son but the family would not let him. He conceded that in those circumstances unfortunately nothing was achieved by his actions.
·He does not know how Mr B left the property.
·He asserted that he “absolutely” breached the order to protect his son.
Findings
I am not satisfied to the requisite degree based on the evidence that there have been “regular periods” where the mother has consented to changeover arrangements being varied. I turn to the specific instances deposed to by the father.
In his affidavit the father asserts that in the months leading to the incident on 8 January 2022 by agreement between the parties the father was attending changeover in person at the K Street, Suburb L Property. He deposes that this occurred on at least two occasions in late December 2021 to 8 January 2022. It was the father’s evidence in cross examination that this occurred on 20 December 2021 and on 1 January 2021. The father provides no details as to 20 December 2021. I cannot make a finding having regard to the lack of evidence on the father’s behalf.
The father asserts that text messages annexed to his affidavit prove that the mother was suggesting the father deliver X to the K Street, Suburb L property on 1 January 2021. I am not satisfied that I can comfortably make a finding from the content of the text messages between the parties that the mother was suggesting or inviting the father to personally deliver X back to the K Street, Suburb L property on 1 January 2021.
The father asserts that he has delivered items required by X including medication by agreement with the mother to the letterbox of the K Street, Suburb L property during the months leading up to the 8 January 2022. There are no further particulars provided nor any text messages between the parties in evidence to support this assertion. It was not put to the father in cross examination that this was not true. The father bears the onus of proof and in those circumstances I cannot safely make a finding that this occurred.
The father asserts that the mother attended the father’s home on the 5 and 7 January 2022. The mother’s affidavit with respect to the events of the 5 January 2022 are vague. In her affidavit she merely deposes that on 5 January 2022: “Mr Farouq asked me to get him medication.” This evidence is evasive in its lack of detail. During the course of the father’s cross examination it was put to him that the mother never attended his home on 7 January 2023. The father was adamant in his evidence that she did. It was put to the father that the mother actually attended his home on the 5 January 2022. The father’s evidence again was clear and firm – it happened several times, on 5 and 7 January 2022.
The mother through her counsel conceded that she attended the father’s home on 5 January 2022 and I so find. The father was adamant that the mother attended his home also on 7 January 2022. His evidence is clear and particularised. I am satisfied that on balance, the mother also attended upon the father’s home on 7 January 2022.
I accept and find having regard to the particularity of the father’s evidence that X told the father he was going to see “Uncle.” This makes sense in light of the further findings I make below.
Whilst I have found that the mother has come into contact with the father of her own accord in the time leading up to the 8 January 2022, I do not accept the father’s evidence that he was driving along K Street, Suburb L because of this, or because it was the shortest route. I find that it is more probable and rational that the father was driving near the K Street, Suburb L property specifically with the purpose of ascertaining whether the mother was breaching order 1 made on 16 November 2021 by allowing X to come into contact with Mr B in light of X’s comments to him the prior day.
I do not accept that the father would have been able to see X and another person through the fence in circumstances where the gap in the fence was one or two palings wide. I agree with submissions made on behalf of the mother that it is too serendipitous that at the exact time the father happens to be driving past that Mr B’s face was directly in front of the gap and he could see X running behind. I accept that it is more probable that the father had stopped the car to go and look. I further accept the father’s evidence that he did this as he was concerned for X’s safety if he was coming into contact with Mr B.
It is the mother’s case and the maternal grandmother’s evidence that the person who was at the K Street, Suburb L property on 8 January dressed in red shorts and white t-shirt was not Mr B as alleged by the father and the photograph of the young man annexed to the maternal grandmother’s affidavit with his back to the camera dressed in red shorts and white t-shirt is in fact the young man who was there. Thus although the maternal family did not know at the time who this person was, they have somehow come to this knowledge later. Who is it then who was at the K Street, Suburb L property on the day in question?
According to the maternal grandmother she first tells the mother that she did not know who the man was at her home. In cross examination it was her evidence that she did not tell the Police that it was not Mr B as they “didn’t ask her.” The material produced under subpoena by the New South Wales Police Service record that they spoke to the maternal grandmother as the mother was not present at the property at the relevant time and that: “all parties denied Mr B being at the location at the time.”
Then, somehow, the maternal grandmother knows – although it is not explained how she comes possession of such knowledge - that it was a family friend who: “..just came through the fence.” By way of her affidavit material she asserts that she does not want to say who it is as they are under the age of 18 years. She attaches a photo but does not want to say how she came into possession of this photo as the male depicted is underage. I do not understand why the maternal grandmother does not wish to advise how she came into possession of the photograph. To be clear, the male is fully clothed with his back to the camera. I find the evidence of the maternal grandmother that she did not take the opportunity to show the face of the person she asserts the father saw rather than Mr B as he is under the age of 18 years to be extraordinary and entirely unconvincing. I do not accept it.
The mother on the other hand asserts that she could not tell the court who it was that was present at the property as she was not present at the time that this person was there. She tells Police that, strangely, not one family member could tell her who this mysterious person was either. She does tell the Police that the only person she knew of who had a hat was her brother, Mr M. She does not seem to share the maternal grandmother’s concerns as to identifying the person in the photograph attached to the maternal grandmother’s affidavit – it is, according to her, that of Mr B’s nephew.
It was the father’s oral evidence that the photograph of the young male attached to the maternal grandmother’s affidavit is that of the mother’s step brother.
Whilst counsel for the mother submitted that I could not on the evidence make a finding, I am satisfied to the requisite degree on the evidence before me that the photograph of the male annexed to the maternal grandmother’s affidavit is not the same person as that contained within the photograph of the male annexed to the father’s affidavit. It is clear to me when comparing these photographs that the photograph of the male annexed to the maternal grandmother’s affidavit is that of a young man of slight build – perhaps of a young sixteen year old male as asserted by the maternal grandmother. The photograph of the male annexed to the father’s affidavit is that of an older male of medium build. The photograph contained within the father’s affidavit of the man is clearly that of a heavier build than the first photograph.
In light of the unsatisfactory evidence in the mother’s case as to who the young man is in the photograph attached to the maternal grandmother’s affidavit I am satisfied that it is more probable that the father’s evidence that it is the mother’s step brother is correct.
In any event, I have found that the photograph of the young man in the maternal grandmother’s evidence is not the same man as in the photograph of the father’s affidavit.
I am satisfied and find that the photograph of the elder man of medium build attached to the father’s affidavit is a photograph of the person who was at the K Street, Suburb L property on 8 January 2022 at the time the father contravened Order 6(b) made on 10 November 2020 in circumstances where the said photograph shows the father taking the photograph of the back of the male person in question. In any event, it was not disputed that this photograph was a photograph taken by the father at the relevant time of the person he saw at the K Street, Suburb L property.
Who then, is the male person in the photos attached to the father’s affidavit and thus at the K Street, Suburb L property on 8 January 2022? The father gives clear and unequivocal evidence that it is Mr B. He records and photographs the person to support his assertion. He telephones the Police within five – six minutes of seeing the man he asserts is Mr B.
What does the mother do to support her contention that it wasn’t Mr B? She does not call Mr B as a witness. She does not call her brother as a witness. She calls her elderly mother who attaches a photograph of a young male dressed in a pair of red shorts and white shirt and asserts that this is the person who was present, although she cannot tell me his name. Attempting to ascertain who it was at the property is like a case of “Where’s Wally” if one is relying upon the inconsistent and inherently unbelievable evidence of the mother and the maternal grandmother.
Whilst this is not a hearing as to a contravention application filed by the father, I am satisfied that I can safely make a finding based on the inconsistent and unbelievable evidence relied upon in the mother’s case that the person who was present at the K Street, Suburb L property whilst X was present on 8 January 2022 was Mr B and thus the mother herself has breached Order 1 made on 16 November 2021. The charade that the mother and her family have engaged in an attempt to hide this from the court does her little credit.
Thus the question remains – does the father have a reasonable excuse for contravening the order to not approach or attend within 500 metres of the mother’s residence, including the K Street, Suburb L property? I am satisfied that a reasonable excuse exists in circumstances where:-
·I have found that the mother had come into contact with the father on two occasions leading up to the 8 January 2022;
·I have found that the father breached the order as he was attempting to ascertain if the mother was herself breaching an order restraining her from allowing X to come into contact with Mr B thereby placing X at risk of harm.
·The father telephoned the police shortly after ascertaining that X was in the presence of Mr B on that day and waited for them to arrive.
It is unfortunate of course that X himself had to witness these events. Both parties are responsible for that occurring in equal measure.
In the circumstances I find that the father had a reasonable excuse for contravening Order 6(b) made on 10 November 2020 on 8 January 2022. Charge One will be dismissed.
CHARGE TWO
The father admits Charge Two.
I find that on his own concession the father without reasonable excuse on Saturday 2 April 2022 at 5:00 pm failed to ensure that his nominee returned the child to K Street, Suburb L, New South Wales in accordance with Order 2B of parenting orders made on 16 April 2021. The child was returned to K Street, Suburb L New South Wales at 8:00 pm.
The father’s evidence with respect to this breach is that this day was the first day of Ramadan; the first day of fasting. The father deposes that:
Ramadan is a very important time for our family and the first day when our family comes together to celebrate the breaking of the fast. [X] was enjoying his time with his family…I broke my fast at 6:30 pm and then arranged for [X] to be delivered back to the mother.
CHARGE THREE
The father admits Charge Three.
I find that on his own concession the father without reasonable excuse on Saturday 16 April 2022 at 5:00pm failed to ensure that his nominee returned the child to K Street, Suburb L, New South Wales in accordance with Order 2B of parenting orders made on 16 April 2021. The child was returned to K Street, Suburb L New South Wales at 6:50 pm.
The father’s evidence with respect to this breach is that this day again occurred during Ramadan which is a time that a lot of family gatherings and breaking of the fast with family occurs and
On this day, the family was invited to my brother’s home to break the fast. [X] has not seen his cousins for a very long time.
PENALTY
The father was afforded the opportunity to adjourn the penalty hearing to a later date. The father did not wish to avail himself of that opportunity and accordingly submissions were made by both parties.
The father submitted that no penalty should be imposed with respect to Charges Two and Three as no harm was caused to X and they fall within the less serious category of breaches. If the father is found to have not have had a reasonable excuse with respect to Charge One, the father conceded that a costs penalty should flow.
The mother submitted that the court should find that the contraventions constitutes the more serious of breaches as these breaches are effectively three in a long history of breaches. It was submitted that the father should be placed on a bond and there be an order for costs. It was argued that there is no mitigating factors in the father’s favour with respect to a costs consideration as the concessions by the father did not occur early in the proceedings and his affidavit was only filed a day before the contravention hearing.
The father has not been found to have contravened orders of the court previously. The contraventions are with respect to the father returning the child late during the period of Ramadan.
I am not satisfied that the two contraventions of the father fall within the more serious category. I am satisfied that this matter is appropriately categorised as falling within the contemplation of subdivision E. The powers of the court in those circumstances are set out in s70NEB(1) of the Act.
The salient principles which the court is to consider in the imposition of penalty has been clearly summarised by the Full Court in Winch & Jackson [2015] FamCAFC 75 at [48] by reference to McLintock & Levier (2009) FLC 93-401 as follows:-
·The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
·The court’s focus is on the individual party.
·A penalty imposed to deter other likeminded persons would constitute an error of law.
·The court can have regard to criminal sentencing principles.
·If there are multiple contraventions in relation to which the court determines to impose a “global” sanction, particular care is required to ensure the total sanction is not manifestly excessive.
·Reasons must be provided for the imposition of a particular sanction.
As stated by Coleman J of the Full Court in Winch & Jackson: “ It needs to be understood that the imposition of a bond is no trivial thing; a fact plainly recognised by the other less draconian powers and remedies referred to in s 70NEB.”
In deciding not to require the father to enter into a bond I have taken into account the father acknowledged the fact of two of the contraventions without reasonable excuse. I am not satisfied that the contraventions of the father are of such a nature that a bond is appropriate. The father has not been found guilty of prior breaches of orders. I am satisfied that the mother herself was in breach of the orders, and whilst this does not excuse the father’s behaviour, it is a consideration when determining penalty.
On 6 May 2022 (a week prior to filing the contravention application) the mother filed an Application in a Proceeding that X’s time with the father be supervised by a professional contact service, namely Q Families, the father undertake a Triple P Parenting Course and engage in 10 sessions of individual therapy.
Judge Street heard and determined this application on 9 August 2022. On this date His Honour discharged Order 3 made on 16 April 2021 that changeover occur by the Father’s nominee collecting and returning X to the maternal grandmother’s home at K Street, Suburb L, and in lieu thereof changeover is to be facilitated by Q Families with the parties to equally share in the costs of same. It is the father’s evidence that Q Families are not available to supervise the changeovers and the parties have therefore agreed that changeovers are to be facilitated by R Contact Centre. The father was also directed to:-
·complete the parenting course he has commenced;
·undertake a family violence course; and
·undertake 10 mental health sessions.
No orders as to costs were made.
Pursuant to the Orders the father has enrolled in both the Anger Management Course through Parenting after Separation and individual therapy sessions with Ms S at the T Centre. He has also completed a Triple P Online Positive Parenting Program as of 2 September 2022.
I accept the submissions of the father in those circumstances that the remedial nature of the orders made by Judge Street meant that there was no necessity for the mother to prosecute the contravention application. The mother’s conduct in bringing the contravention application against the father in the circumstances of her own contravention of an order and the duplicitous nature of the evidence relied upon in her case to try and cover her own contravention could be seen as an abuse of process. The Application–Contravention filed by the mother will be dismissed.
Having regard to the findings I have made with respect to each of the parties I am satisfied that it would not be appropriate for me to make a costs order in this matter and each party should bear their own costs with respect to the contravention application.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 13 December 2022
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