HAMOUD & AHMED

[2014] FamCA 1075

FAMILY COURT OF AUSTRALIA

HAMOUD & AHMED [2014] FamCA 1075

FAMILY LAW – PARENTING – Interim application made by the mother – Where mother seeks orders for sole parental responsibility and placing the child on the watch list – Where mother alleges father has threatened to send the child to Country C to live with his brother – Where there is a history of physical and verbal abuse towards the mother and child by the father – Where a watch list order would restrain both parents from removing the child from the Commonwealth of Australia – Where appropriate for the court to make orders as sought by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Where father has failed to appear before the court – Where court is satisfied the father is aware of the mother’s application and the listing before the court – Where appropriate that the matter proceed in the absence of the father – Where order made granting the father leave to make application to the court in relation to orders made on short notice and ex parte – Where order made for the mother’s solicitor to serve a copy of orders made today on the father.

Family Law Act 1975 (Cth) ss 60B, 60CC

Marvel v Marvel[2010] FamCAFC 101

APPLICANT: Mr Hamoud

RESPONDENT: Ms Ahmed

FILE NUMBER: PAC 3535 of 2014

DATE DELIVERED: 17 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Oxford Lawyers

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The Mother have sole parental responsibility for the child B born … 2010 (“the child”).

2. The child live with the Mother.

3. Until further order the Applicant and the Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child B, male, born … 2010 also known as B from the Commonwealth of Australia. 

4. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

5. Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia for a period of two years.

6. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

7. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to these orders.

8. Upon expiration of the period referred to in Order 5 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.

9. The Father be restrained from contacting or approaching the Mother or the child pursuant to s 68B of the Act and that this order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Act.

THE COURT NOTES THAT:

(A)If, after the expiration of the period set out in Order 5 above, any parent seeks that the child’s name(s) remain on the Watch List 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 FURTHER ORDERED THAT:

1. The Father has leave to make application to the Court on short notice in relation to the orders made today.

2. The Solicitor for the Applicant Mother effect service of a sealed copy of the orders made today on the Respondent Father firstly by email to the Father at … and secondly by ordinary pre-paid post to the Father at F Street, Suburb G VIC … together with a letter informing the Father that in default of there being any appearance by or on his behalf on the adjourned date the Court will make directions for the matter to proceed to an undefended hearing.

3. The matter is adjourned to Tuesday 10 February 2015 at 9.30 am for a Case Management hearing.

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

Mr Hamoud

Applicant

And

Ms Ahmed

Respondent

REASONS FOR JUDGMENT

1. The present application before the Court is an application by the applicant mother filed on 11 November 2014. 

2. In that application she seeks final orders that the child, B, born in 2010 live with the her, that she have sole parental responsibility for the child and that she be at liberty to amend her application for final orders. 

3. However, more particularly, the mother  seeks interim orders pending further order that

   a)The said child live with her;

   b)That she have sole parental responsibility;

   c)That the child be placed on the airport watch list and the parents, their servants or agents be restrained from removing or attempting to remove the child from the Commonwealth of Australia; and

   d)The father, pursuant to section 68B of the Act that provides for injunctions in relation to parenting matters, be restrained from contacting, approaching the mother and the child, and that be an injunction to which a power of arrest without warrant attaches pursuant to provisions of section 68C of the Act.

4. The mother’s primary application was filed on 30 July 2014 and listed by the Court on a first return date basis for 9 September 2014. 

5. On 9 September 2014, the father appeared, in person and the matter was adjourned to 7 October 2014 with the assistance of the Country C interpreter requested.  No other orders or directions were made by the Court on that day. 

6. On 7 October 2014, the matter came before the Magellan Registrar.  The mother was represented by her current solicitor, and the father attended by telephone with the assistance of a Country C interpreter.

7. The proceedings were adjourned to 2:15pm on 13 November 2014 for interim hearing.  The father was otherwise ordered to serve a response to the mother’s interim application and any affidavit in support of orders sought by him within 30 days. 

8. Subsequently, the proceedings came before the Registrar on 13 November 2014.  There was no appearance by or on behalf of the respondent father. Proceedings were adjourned to today’s date for interim hearing.

The Mother’s evidence

1. The mother relies upon her affidavit filed on 11 November 2014 in support of the interim application by her.

2. The mother was born in Country A. She came to live in Australia with her family when she was aged 14.

3. The father was born in Country C.

4. The parties met in Country E in 2007 while the father was in that country working and the mother on holiday.

5. The parties continued their relationship after the mother returned to Australia and became engaged about one year after meeting. The father migrated to Australia in September 2009 on a fiancé visa, sponsored by the mother.

6. The parties were married in 2009 and separated on 20 May 2013, obtaining an Islamic divorce on or about the date of separation.

7. After the parties’ separation, the mother and child returned to live with the maternal grandparents.

8. During cohabitation the father, upon discovering that the mother was pregnant with a male child, told the mother that he wanted the child to be sent to Country C after his birth to be raised by his brother, the child’s paternal uncle. The mother understandably did not agree to this proposal.

9. Since the parties’ separation the father has continued to state to the mother, at times in the presence of her family, that he wished for the child to live in Country C with his brother to “learn the culture and the religion”. The mother has continued to refuse to permit the child going to Country C, to which the father has said “it is not up to you, it is my choice”.

10. He has threatened that he will kidnap the child.

11. The mother has been the child’s primary carer since birth. The mother alleges that the father did not assist with any child-rearing and did not purchase any items for the child including clothing, food or nappies. As the child grew older the mother would take him to and from child care and for outings to the park and the cinema.

12. The child suffers from severe asthma, requiring hospitalisation on more than one occasion and suffers recurring asthma attacks requiring urgent medical attention, usually two to three times per month. The mother has attended to the child’s medical needs

13. The mother alleges that the father has prevented her from seeking medical attention for the child when he is suffering from asthma and on one occasion in June 2012 when the child was not yet two years of age, prevented the mother from taking the child to hospital during the night when he had vomited approximately fifteen times and had commenced to vomit a yellow substance.

14. The mother was eventually able to leave the home with the child to seek treatment at hospital at about 5:00am the next morning.

15. The mother complains of the father’s physical and verbal abuse towards herself and the child throughout the relationship, including swearing at and belittling the mother in front of the child in the language of Country C and English and smacking and shoving the child. The father would also throw furniture around the home and punch walls when he was angry.

16. The mother alleges that most incidents of abuse would stem from the parties arguments regarding the child being taken to live permanently in Country C.

17. In September 2012 the mother was at home getting dressed for a birthday party when the father pushed her against a wall, began to rip off her dress, pulled her hair and attempted to cut her hair with scissors. The mother was able to flee the home with the child and went to the maternal grandparent’s residence. The father followed her there and tried to force his way into the home, screaming for the mother and child whilst they hid in a locked bedroom. The maternal grandfather was eventually able to calm the father and he left the premises. The mother did not report the incident to the police.

18. In May 2013 the parties and the child went shopping with the mother’s sister, who was 14 years of age at the time. Upon returning to the parties’ home, the child then aged not quite three, repeatedly pressed the elevator button in the building causing the elevator to remain on the same level. The father slapped the child on the face, causing him to bleed from the mouth.

19. The mother believes that the child is scared of the father, crying when the father becomes angry or the parties’ argue.

20. The mother alleges that the father has told the child that he does not love him and that the father has become angry and physically prevented the mother from showing affection to the child. The mother states that her family has witnessed the father verbally abuse the child, as well as physically abuse him by hitting his back, hands and legs.

21. From the date of the parties’ marriage until mid to late 2011 the parties and the child resided in the home of the maternal grandparents. The mother alleges that she received no financial assistance from the father throughout the relationship, and that she supported him financially with her Centrelink benefits, despite the father working to the mother’s knowledge as an automobile mechanic. She states that the father did not contribute to the purchase of household items and would send his employment income and her Centrelink benefits overseas or spend money gambling.

22. From around March 2011 the father commenced spending about three months at a time in Melbourne, coming to Sydney for a week and then returning again to Melbourne. The mother decided to rent an apartment for the parties to enable them to move out of the maternal grandparent’s home and the parties moved to an apartment in Suburb H in or around late 2011.

23. In June 2013 the mother obtained employment in administration. Her employer was a family friend, aware of her home situation and the father’s violent behaviour. The father became jealous of the mother’s relationship with her employer, accusing her of cheating on him and calling her a “whore” and a “slut”.

24. The stress of the father’s accusations and abuse regarding the mother’s employment caused her to leave this job in December 2013.

25. The mother and child left the Suburb H apartment in December 2013 whilst the father was in Melbourne. The mother states that she told the father this before he left and that he did not seem to care and was not convinced that she would leave.

26. When the father returned from Melbourne to find that the mother and child had indeed left the apartment, he came to the maternal grandparents’ home and demanded to see the mother and child.

27. The father tried to physically restrain the mother and force her into his car. The mother was able to get away from the father and went inside. The father forced his way into the maternal grandparents’ home. After he left the mother realised that the child’s birth certificate was missing.

28. The mother fears that the father has taken the child’s birth certificate in order to obtain a Country C passport and or citizenship for the child.

29. Following this incident the father sent threatening and abusive text messages to the mother, which she reported to the police. The mother alleges that the text messages contained further threats that the father would take the child. The father commenced sending the mother messages through Facebook in 2014 asking to see the child, to which the mother did not respond as she does not trust the father and fears that he will take the child to Country C.

The Father

1. The father is unrepresented and has filed a notice of address for service identifying that he resides in Victoria at F Street, Suburb G,  Victoria. He has provided a mobile phone number and email address for the purposes of service. 

2. The father has not responded to telephone calls to his mobile phone today, and it is now shortly before 1:00pm and there is no appearance by or on behalf of the father.

Discussion 

1. In all of the circumstances and in regard to the more serious allegations raised by the mother in her amended application and affidavit, the court has had regard to the relevant provisions relating to children, and the orders to be made by the court are governed by the provisions of the Act. 

2. As the Full Court said in Marvel v Marvel[2010] FamCAFC 101, on an interim hearing, the court is in a difficult position in relation to contested facts, but, at the moment, the only evidence the court has is the affidavit provided by the mother. 

3. The court is mindful of the objects and principles set out in section 60B of the Act, and has had regard to the best interest considerations of the child as the paramount consideration set out at section 60CC.

4. The court has considered each of the primary and additional considerations set out in section 60CC, and, in particular, has had regard to the protective needs set out in the primary considerations in section 60CC( 2).

5. The court, when making a parenting order, must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, unless the court is satisfied in interim proceedings it would not be appropriate for that presumption to be applied. 

6. In the circumstances of this matter, and having regard to the evidence of the mother, the court is satisfied that such a presumption should not apply, and the court is also satisfied that having regard to the provisions of section 60CC, and, in particular, the protective considerations, that the orders sought by the mother should be made on an ex parte basis.

7. Orders will be made accordingly. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 November 2014.

Associate: 

Date: 17 November 2014