Haboush & Jacoma

[2021] FCCA 1246

FEDERAL CIRCUIT COURT OF AUSTRALIA

Haboush & Jacoma [2021] FCCA 1246

File number(s):	PAC 5862 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	31 May 2021
Catchwords:	FAMILY LAW – interim parenting – ex parte oral application by Mother, supported by Independent Children’s Lawyer, for, inter alia, a recovery order and live-with order in relation to two children – ex parte oral application refused
Legislation:	Family Law Act 1975 (Cth) s 70NEC
Number of paragraphs:	21
Date of last submission/s:	27 May 2021
Date of hearing:	27 May 2021
Place:	Parramatta
Solicitor for the Applicant:	Ms Webb
There was no appearance for the Respondent
Solicitor for the Independent Children's Lawyer:	Ms Wimilaratne

ORDERS

PAC 5862 of 2020

BETWEEN:

MS HABOUSH

Applicant

AND:

MR JACOMA

Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	31 MAY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.The oral applications made by the maternal aunt on 27 May 2021 seeking interim related parenting orders are dismissed.

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 under the pseudonym Haboush & Jacoma is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

1. These interim proceedings relate to the children X born in 2019 (two years) and Y born in 2020 (one year). 

2. The maternal aunt, on 27 May 2021, following there having been no appearance at Court by the Father on this date pursuant to an executed arrest warrant against him issued by the Court on about 24 May 2021, made an oral application that the children live with her, that the children spend supervised time with the Father supervised at a B Contact Centre, and that a recovery order issue requiring the Father to “return” the children to the maternal aunt, and failing the Father returning the children to the maternal aunt, that the police be authorised to effect the proposed recovery order.  To support the oral application the maternal aunt handed up in Court a proposed minute of order which the Court has marked Exhibit A. 

3. The Father has been informed by email of the Mother’s above oral application.  He has responded to the Court by emails indicating that he does not wish to participate in the proceedings.  It is apparent from the content of the Father’s emails to the Court that he wishes to remain the children’s primary carer and that he rejects the maternal aunt’s allegations against him. 

4. It is helpful to give some brief background to these parenting proceedings. 

5. The children’s Mother died tragically in a car accident last October.  Thereafter, the eldest child remained living with the Father, and the youngest child was retained by the maternal aunt. 

6. On 22 December 2020, Senior Registrar Crawford conducted an interim hearing between the Father and the maternal aunt and made Orders, inter alia, that the children live with the Father subject to the paternal grandparents being substantially present, noting that they had both agreed to move in with the Father and children to the Father’s current home at Marsden Park.  An Order was made that the maternal aunt deliver the youngest child back to the Father on 23 December 2021.  The Court made Orders that the children spend time with the maternal aunt each Saturday.  The Court made Orders for the Father to undertake chain of custody urinalysis testing at the request of the ICL and for the Father to submit to supervised hair testing for the detection of illegal substances. 

7. The Court refers to previous Orders and Notations made by Senior Registrar Tran of this Court and to previous Orders of this Court. 

8. On 3 May 2021, the Court, having conducted an undefended Contravention hearing at the instance of the maternal aunt, with the Father not being present, made orders, inter alia, that the Father had breached Order 6 of the Court’s orders of 22 December 2020 in that he did not allow the maternal aunt to spend time with the children. The Court also found that the Father had breached Order 2(a) of those Orders in that the Father lived with or spent time with the eldest child at his home without the paternal grandparents being substantially present, and the youngest child not being in his care in his home on certain dates. The Court required the Father to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 (Cth) (the Act) and for this purpose, the Court ordered the Father to personally attend Court on 24 May 2021 at 9.30 am. The Court varied previous interim Orders made by the Court on 22 December 2020 relating to the children’s time with the maternal aunt, and ordered that they could spend increased time with her, in particular one overnight each fortnight.

9. The Father did not attend Court on 24 May 2021 and accordingly the Court issued an arrest warrant against the Father pursuant to Rule 25B.73.  The form of the arrest warrant was such that the Father could be released from custody, on the arrest warrant being executed, on compliance with a condition that he attend Court on Thursday, 27 May 2021.  The Father did not attend Court on 27 May 2021 and there being evidence before the Court that the arrest warrant was executed by the police. 

10. On 27 May 2021 the maternal aunt’s oral applications were supported by the ICL.  On that date, the only documentary material relied upon by the maternal aunt were certain emails sent by the Father to the Court on 27 May 2021, being emails sent by him on that date at 11.13 am, 2.25 pm, 2.29 pm and 3.30 pm which the Court has marked Exhibit B, together with an Affidavit by the maternal aunt’s solicitor handed up in Court on 27 May 2021, stating that the above mentioned arrest warrant had been executed by the police on 25 May 2021. 

11. The maternal aunt had also sought to rely upon the Father indicating to the Court, at least through his emails, that he did not wish to attend Court or participate in the proceedings, his failure to attend Court on 27 May 2021, and she submitted that the Father would not likely comply with any Court Orders. 

12. It was submitted by the maternal aunt and ICL that the content of those emails in Exhibit B indicated that the Father was not experiencing good mental health and that the children were at risk of harm in his care accordingly.  The ICL, also in the context of risk of harm submissions made by her, submitted that the Court’s Orders of 22 December 2020 had put in place Orders to ameliorate illicit drug use risks and mental health risks relating to the Father which the Father had not complied with. 

13. Again, the Court observes that as recently as 3 May 2021, when the Court conducted the undefended Contravention hearing and made Orders, as discussed above, it did not make Orders that the children live with the maternal aunt.  Rather it made Orders that the children spend increased time with the maternal aunt. 

14. The Court has examined the content of the above emails from the Father to the Court.  It is apparent that the contents of the above emails are strongly worded by the Father.  He repeats allegations that the maternal aunt previously kidnapped the youngest child (this appears to be an apparent reference to the maternal aunt having retained the youngest child until ordered to return her to the Father on 22 December 2020), and that the maternal aunt had made false accusations against him. The contents of the emails are replete with short sentences and they are quite readable. The sentences can be understood by reading them. The contents of the emails do not significantly suggest that the Father was adversely affected or may have been adversely affected by illicit drugs when he wrote the emails. 

15. There is a statement by the Father at one point in the first email at 11.13 am that: 

    Men in this position would commit suicide at times like this.  Something has to change.  And I will do my best for change. Because I will tell you mate I’ve been hurting deep.  I cry every single day and still I’m happy and positive and strong with my daughters.  Hard but only family I got.  My kids.  My responsibility.  Can do whatever use want to me.  But never.  I don’t care who it is.  No one in this universe can make me stand down and give my kids to such a dangerous sick human.  I am happy for you to act without my presence there today.  I do not need to defend anything.  I have proven long enough on paper who I am.  I am not doing what she is doing.  Me simply telling you I’m a nice guy and a good dad means nothing. 

16. The Father’s email sent to the Court at 3.30 pm, responding to the Court’s email to the Father at 3.24 pm, and which refers to the Court’s Protocol for Communicating with Chambers, states, benignly: 

    Sorry for that I did receive the message after I sent it.  I was only giving you my reason as for my non attendance.  I hope this message is not breaking rules.  Sorry if it is I will not reply again. 

17. The Court is not persuaded that the content of the above emails, when read in their entirety, and taken as a whole, suggest that the Father is experiencing significant adverse mental health such that there is an unacceptable risk of harm posed to the children by remaining in the Father’s primary care by reason of potential neglect or exposure to family violence. 

18. The Court also observes that during the course of submissions heard by the Court from the maternal aunt and ICL, the Court was informed that there had previously, at the instance of the maternal aunt, been police welfare checks of the children whilst in the Father’s care, but that in more recent times the police have refused to carry out further welfare checks. 

19. There is presently no significant material that has been placed before the Court and relied upon by the maternal aunt or ICL to indicate that the paternal grandparents are not usually living with the Father and the children.  In this context, the Court has not overlooked the contents of the Court’s notations of 19 April 2021 that on that date at a certain time the paternal grandparents were not in the Father’s substantial presence whilst the eldest child was in his care, and further, that at that time the youngest child was in the care of the paternal grandparents. 

20. Accordingly, the above oral applications are dismissed. 

21. Any further parenting applications or other Orders to be sought by the maternal aunt, and/or the ICL, should be in proper form with a duly filed and served Application in a Case with supporting Affidavit material.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

Associate:

Dated:       4 June 2021