HOGAN & NAZARIN

[2017] FamCA 701

FAMILY COURT OF AUSTRALIA

HOGAN & NAZARIN [2017] FamCA 701

FAMILY LAW – CHILDREN – Interim proceedings – Where appropriate for interim application to be heard ex parte – Where there are allegations of domestic violence – Where there is a provisional apprehended domestic violence order against the father protecting the mother and child – Where there is a risk of physical violence and/or psychological harm – Where the father is currently in custody – Where the Court has grave concerns for the mother and the child – Consideration of best interests considerations – Where orders made as sought by the mother

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Banks (2015) FamCAFC 36
George & George (2013) FamCAFC 182
Goode & Goode (2006) FamCA 1346
Marvel (2010) FamCAFC 101
Mazorski & Albright (2007) FamCA 520
MRR & GRR (2010) HCA 4

APPLICANT: Ms Hogan

RESPONDENT: Mr Nazarin

FILE NUMBER: PAC 4433 of 2017

DATE DELIVERED: 6 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Jacqueline Kyle Family Law

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Pending Further Order, Orders Made On 6 September 2017

1. That the mother, Ms Hogan be granted sole parental responsibility for the child, B born … 2017.

2. That the child, B, live with the mother.

3. That the child spend no time with the father.

4. The Respondent father, Mr Nazarin born … 1993 be restrained from contacting or approaching the Applicant mother, Ms Hogan born … 1994, and the child, B born … 2017, within 100 metres or entering upon any premises at which the Applicant mother and/or the child may be from time to time pursuant to s 68B of the Act and this order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of s 68C of the Act.

5. The proceedings are adjourned for judicial case management to 9.30am on Friday, 10 November 2017.

6. The Respondent father is granted leave to make such application as he may be advised in relation to the ex parte orders made today.

7. The Applicant mother effect service of the Initiating Application, her affidavit in support and a sealed copy of the orders made today on the Respondent father by Wednesday, 20 September 2017.

8. The Applicant mother is granted leave to issue such subpoena as she considers relevant to the issues before the Court with such subpoena to be returnable by no later than Wednesday, 8 November 2017.

9. Leave is granted to the Applicant to relist the proceedings on short notice in appropriate circumstances by application to the Court in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hogan & Nazarin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4433  of 2017

Ms Hogan

Applicant

And

Mr Nazarin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application filed by the applicant mother, on 5 September 2017, seeking parenting orders in relation to the child, B, born in 2017. 

2. The mother seeks orders, in summary, that provide for:

   a)The Court to make orders on an ex parte basis, for reasons set out in her supporting affidavit;

   b)That orders be made on an interim basis, as follows:

   i)That the applicant mother be granted sole parental responsibility for the child;

   ii)That the child live with the mother;

   iii)The respondent father spend no time with the child;

   iv)That the respondent father be restrained from approaching within 100 metres of, or entering upon premises of any childcare, kindergarten or school attended by the child, or the residence of the school and that such order have attached to it an arrest without warrant power, as provided for in section 68C of the Act.

3. The power of the Court to deal with an application such as this, on an ex parte basis, arises from the provisions of rule 5.12 of the Family Law Rules 2004.  The obligation is on the applicant to satisfy the Court that an order should be made without notice to the other party.  The rule otherwise provides that the affidavit in support of any such application for ex parte orders include full and frank disclosure of all facts relevant to the application, including inter alia:

   i)Whether there is a history or allegation of child abuse or family violence;

   ii)Whether there has been a previous case between the parties;

   iii)Particulars of any orders currently in force between the parties;

   iv)Whether there has been a breach of any previous order by either party to the case;

   v)Whether the respondent or the respondent’s lawyers have been told of the intention to make the application;

   vi)Whether there is likely to be any hardship, danger or prejudice to the respondent, a child or third party if the order is made;

   vii)Why the order must be made urgently;

   viii)The last known address or address for service of the other party.

4. The Court is satisfied that the affidavit filed by the mother on 5 September 2017, complies with her obligations under rule 5.12, and it is appropriate in all the circumstances for the application to proceed to ex parte hearing.

5. The mother relies upon her affidavit, filed 5 September 2017. 

The mother’s evidence

1. The mother is 22 years of age and the respondent father is 24 years of age.  The mother and father began a relationship in August 2016.  The mother fell pregnant, as a consequence of that relationship, in October 2016.  Subsequent to the mother falling pregnant, the parties resided, from April 2017 to August 2017, in circumstances where they obtained independent accommodation of the respondent’s parents’ home after that property was firebombed.

2. The subject child, B, is the only child of the relationship between the applicant and respondent. 

3. The applicant has a child from a previous relationship, born in 2014.  The applicant asserts that that child has a good relationship with his father and the father spends time with the child, as agreed between the mother and the father. 

4. Concerningly, the mother reports that the respondent has a lengthy criminal history.  She asserts that, in 2015, he was convicted of the commercial supply of methamphetamine and sentenced to a period of imprisonment, with a minimum of 18 months in custody.  The father has been and is currently the subject of a Firearms Prohibition Order. The mother is of the understanding he has other convictions for violence, drug and firearm offences and is a member of an outlaw motorcycle gang. 

5. Those circumstances themselves raise some concern as to why the mother even entered into a relationship with the respondent, but she did.

6. The mother also says that the father was an enthusiastic bodybuilder and boxed competitively and has, on occasions, used steroids. 

7. The mother gives detailed evidence of a number of assaults on her and other aberrant behaviour of the father prior to them commencing cohabitation in April 2017.  Subsequent to the parties commencing cohabitation, the father commenced a much more intense course of conduct: assaulting, belittling and abusing the mother from the period from May 2017 until the parties finally separated in August 2017. 

8. The circumstances of separation were somewhat concerning, with the respondent father insisting that the mother take the child to the paternal grandmother’s home under the threat of violence and coercion.  The mother fortunately was able, through the assistance of the maternal grandmother, to remove the child from the paternal grandmother’s home and the child is now in the applicant’s fulltime care.

The ADVO

1. Subsequent to the parties’ separation, the New South Wales Police commenced proceedings seeking a provisional apprehended domestic violence order, on behalf of the mother.  An interim order was made on 3 August 2017.  That order is directed to the respondent father, and is for the protection of the mother and the child.  The order restrains the father from assaulting or threatening the mother and child, stalking, harassing or intimidating them or intentionally or recklessly destroying or damaging any property that belongs to or is in the possession of the mother.  Otherwise, the order provides that the respondent must not approach the mother or contact her in any way, unless the contact is through a lawyer, to attend accredited or court-approved counselling, mediation or conciliation, as ordered by the Local Court or another court, about contact with the child, or as agreed in writing between the mother and the father about contact with the child.

2. The proceedings for the apprehended domestic violence order are, again, listed before the Local Court at Suburb C. 

3. It is to be expected that an interim order will be made pending, if appropriate, final hearing of the mother’s complaint. 

4. The mother has serious concerns, by reason of the father’s criminal history and his previous conduct, and those with whom he associates, and that the father will endeavour to do harm to herself, her family and the child.  The mother is of the view that, by reason of the father’s ethnic background, he regards himself as being shamed by the mother going to the police in relation to the abhorrent conduct by him during the relationship. 

5. The mother has previously observed the father inject himself with steroids, and during the relationship has exhibited rapid mood-swings and extreme aggression.  Such in itself is an alarm bell in terms of any contact between the father, the mother and/or the child.

6. The father’s and his extended family’s activities have been subject of some report.  Otherwise, the father presently remains in custody and the mother says that he has an upcoming parole board hearing.  She is concerned there will be a risk that he will be released.  What the effect of the father’s more recent conduct, in terms of the provisional ADVO, will have on that parole board hearing is not known. 

7. It is the mother’s plan to be able to leave Sydney and reside elsewhere with the child, for the purposes of her own protection. She has satisfied the Court that if she was able to do so, she would be in appropriate circumstances for the welfare of herself and the child.

8. Under all of the circumstances, the Court has grave concerns as to the physical safety of the mother and the child. 

Interim Parenting

1. The question of interim parenting has been subject of much comment by the Full Court of this Court, in decisions such as Marvel (2010) FamCAFC 101, George & George (2013) FamCAFC 182 and, more recently, in a decision of Banks (2015) FamCAFC 36.

2. The Full Court is conscious that a primary judge delivering ex tempore reasons will not always have the opportunity of giving appropriate consideration to each and every one of the s 60CC factors that relate to a child’s best interests, but when it is the obvious to the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it would be a sterile and unnecessary exercise to address other factors.

3. The relevant principles in relation to parenting and interim parenting proceedings are well-settled.  See Goode & Goode (2006) FamCA 1346, and MRR & GRR (2010) HCA 4.

4. Section 60B outlines the objects and principles underlying Part VII of the Act.

5. 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. 

6. Section 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.

7. Section 61DA provides, 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.  However, as in this case, the presumption does not apply as there are reasonable grounds to believe that a parent – the respondent – has engaged in the abuse of the child, or family violence.

8. Should the presumption have applied, it would have been necessary for the Court to consider the concepts of equal time and/or substantial and significant time.  It is unnecessary to do so in the circumstances of this matter. 

9. The primary considerations, set out in s 60CC(2) of the legislation are:

   a)The benefit of the child having a meaningful relationship with both of the child’s parents;

   b)More importantly, in the context of this matter, the need to protect the child from psychological or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.

10. Of those two considerations, the latter consideration is to be given more weight, in the context of considering the child’s best interests. 

11. The Court is satisfied that it is appropriate for this young child, of very tender age, to remain in the fulltime care of the mother and, in that circumstance, the mother-child relationship will be, as discussed in Mazorski & Albright (2007) FamCA 520, a relationship which is important, significant and valuable to the child.

12. The same cannot be said of any prospective relationship between the child and the father.  The father’s behaviour, historically and more recently, demonstrates a very real and serious risk of the child being exposed to abhorrent behaviour, physical violence from the father or psychological harm by ongoing conflict between the father and the mother, perpetrated either by him or those at his behest.

13. In all of the circumstances, the concept of the father’s meaningful relationship is subsumed in the second primary consideration, which is the need to protect the child. 

14. That factor, in the context of this matter, is overwhelming and determinative of the mother’s application in its entirety.  Otherwise, the Court has had regard to additional consideration set out in s 60CC(3) of the Act as applicable. 

15. However, as has been said, by reason of the matter raised in the mother’s affidavit in support, the question of her protection and the protection of her child is the overwhelming consideration in coming to a conclusion as to the orders to be made as sought by the mother in the best interests of the child.

16. In all of the circumstances, the Court is satisfied that orders should be made as sought by the mother. 

17. Orders will be made accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 6 September 2017.

Associate: 

Date:  13 September 2017