HAMOUD & AHMAD
[2015] FamCA 216
•1 April 2015
FAMILY COURT OF AUSTRALIA
| HAMOUD & AHMAD | [2015] FamCA 216 |
| FAMILY LAW – CHILDREN – Undefended final hearing – where the father has failed to engage in the proceedings – where there is a history of family violence and abuse by the father– where the mother is fearful that the father will remove the child to Country C – primary consideration as to protection of the child from harm – best interests of the child – where orders made that mother have sole parental responsibility and child live with mother – where injunctive orders made for the protection of the mother and child. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B Goode & Goode [2006] FamCA 1346 | |
| APPLICANT: | Ms Hamoud |
| RESPONDENT: | Mr Ahmad |
| FILE NUMBER: | PAC | 3535 | of | 2014 |
| DATE DELIVERED: | 1 April 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 March 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Oxford Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No Appearance |
Orders
That the mother have sole parental responsibility for the child B born … 2010 (“the child”).
That the child live with the mother.
That until further order, the father, Mr Ahmad born … 1982, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child B born … 2010 from the Commonwealth of Australia for a period of two years.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.
THE COURT NOTES THAT:
(A)If, after the expiration of the period set out in Order 3 above, any parent seeks that the child’s name(s) remain on the Watchlist for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence that supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamoud & Ahmed has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3535 of 2014
| Ms Hamoud |
Applicant
And
| Mr Ahmad |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the child B born in 2010. B is the only child of Ms Hamoud (“the mother”) and Mr Ahmad (“the father”).
The parents married in 2009 and separated on a final basis in May 2013. The last time the father spent time with the child was in December 2013.
The mother commenced these proceedings in July 2014 and the father has failed to engage in the proceedings. The matter was heard on an undefended basis on 16 March 2015.
Background
The mother was born in Country A and is currently 26 years old. The father was born in Country C and is currently 32 years old.
The mother came to Australia in 2003 and the father came to Australia in September 2009 on a spouse visa to marry the mother.
The parties met in Country E in December 2007. The mother was holidaying from Australia and the father was working in Country E at the time. The parties continued their relationship following the mother returning home to Australia. One year later in December 2008 the mother travelled to Country C to become engaged to the father. Following the parties’ engagement the mother returned to Australia. The father arrived in September 2009 and the parties married in 2009.
The parties resided with the maternal grandparents’ home from November 2009 until mid-2011.
The mother says that since the time she fell pregnant in early 2011, the father insisted that his wish was to take the child to Country C to live and grow up. The father’s instance grew when he found out that the mother was pregnant with a male child.
Further, following separation the father has continually demanded that he be able to take the child to live in Country C with his brother.
The mother is fearful that the father will remove the child from her care and go to Country C. The mother says that if the father removed the child to Country C, she would not be able to communicate with the child and she would not know where the child or the father would be.
When the mother was pregnant the father commenced working as a mechanic. However, the father never financially supported the mother or child.
In around March 2011 the father started going to Melbourne for extended periods of time. The mother says that the father would go to Melbourne for three months and return to Sydney for one week and go away again. The mother says that she initially thought the father was going away because he did not like living in the mother’s parents’ home and as a result the mother commenced renting an apartment where the mother, father and child moved into.
Following the parties moving into the apartment the father became physically and verbally abusive towards the mother and the child. The mother says that most of these occasions occurred following an argument in relation to taking the child to Country C to live.
The mother outlines an incident in September 2012 when they were getting ready to go to a birthday party and the father pushed the mother against the kitchen wall and began to rip her dress off her. The father grabbed a pair of scissors and attempted to cut her hair off. The mother subsequently pushed the father away from her, and left the home with the child and went to her mother’s home. During the incident the child was crying and screaming.
Shortly after the father arrived at the mother’s parents’ home and began yelling. The father said: “Where is my child, I want to take my child”. The mother when she heard this locked the door as she was fearful the father would take the child. The mother’s father managed to calm the father down and he subsequently left the home. The child heard the father yelling and screaming and was crying.
During the relationship the father would swear and belittle her in Country C and English. This often occurred in front of the child. When the father became angry he would throw furniture around the house including chairs and he would punch the walls. This behaviour occurred in front of the child.
The mother refers to an incident at a time when she found $4,000 in cash in the father’s drawer. The mother says she took the money with the intention to spend it on a bed and cupboard for the child. When the father discovered the money was missing he began shouting and said “Where is my money, give it back, it’s mine!” The father then punched the wall in the mother’s parent’s home in front of the mother’s two sisters and the child. The mother then returned the money to the father and he left the house.
The child is an asthmatic and has attacks two or three times per month. The father had prohibited the mother from taking the child to see a doctor whilst suffering an asthma attack. In June 2012 the child vomited several times during the night and the mother says that the father prohibited her from taking the child to hospital. The mother managed to leave the home with the child in the early morning and took him to hospital.
The father has hit the child on his back, hands and legs. The mother says that this abuse was witnessed by her mother, father and sister. The mother outlines an incident in May 2013 when the father became agitated because the child was pressing the buttons in a lift and the lift did not move. The mother says that the father slapped the child hard on the face which caused him to bleed from his mouth. This incident was observed by the mother’s then 14 year old sister.
The mother says the child is scared of his father and that the child begins to cry each time he sees his father.
The parents separated on 20 May 2013.
The mother has facilitated the child attending day care five days a week since 26 June 2013 so that she could obtain employment to support herself and the child.
In late June 2013 the mother commenced a job. Shortly after the father began accusing the mother of having a relationship with her employer. As a result the mother resigned from her position in December 2013.
The mother says she moved from the apartment to the maternal grandparents’ home with the child in December 2013 whilst the father was away in Melbourne.
December 2013
Following the mother and child moving into the maternal grandparents’ home the father demanded to see the mother and the child and that they come home with him to the apartment. The mother spoke with the father outside the maternal grandparents’ home and he pulled her hands forcefully and tried to force her into his car. The mother managed to escape and ran into the house. The father followed her and demanded to see the child saying: “My son is inside, I want to see my son”. The father then pushed the maternal grandfather out of the way and went to the room where the child was. The maternal grandparents and the mother’s sister were present. The father then left the home, following which the mother noticed that the child’s birth certificate was missing. The mother says she is fearful that the father will use the birth certificate to obtain a Country C passport or Country C citizenship for the child.
The father has contacted the mother via Facebook in an attempt to arrange a time he can spend time with the child since the beginning of 2014. The mother says she has not replied to any of these messages as she is fearful that he will take the child and travel to Country C.
The proceedings
The mother commenced proceedings on 30 July 2014 by filing an Initiating Application and also a Notice of Child Abuse (Ex B). The mother sought final orders that the child live with her and that she have sole parental responsibility for the child. The mother sought interim orders in line with her proposed final orders, and she also sought that the father be restrained from removing the child from the Commonwealth of Australia.
The Notice of Child Abuse outlines the instances the mother alleges the father was violent towards the child and her.
The matter was first before a Registrar in September 2014. On this day the father appeared in person. The matter was adjourned so the father could have the assistance of a Country C interpreter on the next occasion due to his limited English. It was also noted that day that the father was residing in Victoria.
The matter was again before a Registrar in October 2014 and on this occasion the father was assisted by an interpreter. The father was ordered to file a Response to the mother’s Initiating Application and an affidavit within 30 days. The matter was adjourned to 13 November 2014 for interim hearing.
The mother amended her Application on 11 November 2014. The mother sought interim orders in line with her proposed final orders and she sought an injunction that the father be restrained from contacting or approaching the mother and the child pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”).
On 13 November 2014 the father did not attend Court. The matter was adjourned to 17 November 2014 for interim hearing.
On 17 November 2014 the father did not appear nor did any legal representative appear on his behalf. Interim orders were made that pending further order the mother have sole parental responsibility for the child and that the child live with the mother. The child was placed on the Airport Watchlist for a period of two years and the father was restrained from contacting or approaching the mother or the child pursuant to section 68B of the Act. Ancillary orders were made to provide for the mother’s solicitor to serve a copy of the sealed orders on the father together with a letter informing the father that if he failed to appear on the adjourned date that the matter may proceed on an undefended basis. The matter was adjourned to 10 February 2015.
On 10 February 2015 there was no appearance by or on behalf of the father and the matter was listed for undefended hearing on 16 March 2015.
An order was made for the mother’s solicitor to serve on the father by email and by ordinary pre-paid post any further affidavit filed by the mother and a letter informing the father that if he did not appear on the next occasion that the matter would proceed to final hearing on an undefended basis.
The mother further amended her Application on 6 March 2015. She sought final orders in line with the interim orders as made on 17 November 2014.
An affidavit of service (Ex A) was tendered by the mother. It evidences the mother’s solicitor fulfilling the order to notify the father both via email and via pre-paid post. The father did not appear in person or have someone appear on his behalf at the date of the hearing.
The father was notified in accord with direction to do so. He did not appear. The matter was heard on an undefended basis.
Law and Discussion
The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR & GRR [2010] HCA 4 has affirmed the legislative “pathway”.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in respect of final proceedings where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)]; or
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Primary Considerations
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
It is clear that the child has a settled primary attachment with his mother. The child is also attached to his maternal grandparents and aunts and uncle, with whom he lives and who care for him occasionally. These represent significant and valuable relationships for the child and should be maintained.
The child’s relationship with the father is non-existent at present as the child has not spent any time with the father since December 2013. A resumption of that relationship in circumstances where the father has a history of violence towards the mother and the child and where the father makes threats to the mother to remove the child is contraindicated.
Section 60CC (2)(b) – need to protect
This consideration in reality is the over-clouding issue in terms of the mother’s application. The best interests of the child can virtually be resolved by reference to this primary consideration in respect to which the Court must afford greater weight. Should the child be exposed to the father’s violent conduct then such exposure represents risks to the child of psychological abuse and indeed physical abuse.
This consideration is to be given greater weight of the primary considerations (s 60CC(2A)).
There is no doubt that the child’s primary relationship with and his residence with the mother represents an important, settled circumstance that should be maintained with appropriate protective injunctive orders.
The Additional Considerations – s 60CC(3)
The Court has considered each of the additional considerations where relevant in the context of the factual background set out above. Without exception they are clearly indicative of orders sought by the mother being in the child’s best interests.
Who should have parental responsibility?
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in the circumstances set out above.
The mother is seeking an order for sole parental responsibility.
In circumstances where the father has not engaged in the proceedings or indeed sought to be engaged in the child’s life in any meaningful way since December 2013 it is appropriate that the presumption not apply as the best interests considerations contraindicate doing so and there is history of family violence.
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. As the presumption does not apply the Court is not required to specifically consider equal time or substantial and significant time with the father.
However, an appreciation of the best interest considerations referred to above clearly contraindicates either of such arrangements.
The child’s best interests as set out above reveal that the orders as sought by the mother serve those interests well.
Orders will be made accordingly.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 April 2015.
Associate:
Date: 1 April 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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