Jofeh and Jofeh

[2009] FamCA 510

FAMILY COURT OF AUSTRALIA

JOFEH & JOFEH [2009] FamCA 510

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Jofeh

RESPONDENT: Ms Jofeh

FILE NUMBER: NCC 1427 of 2009

DATE DELIVERED: 5 June 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Loughnan J R

HEARING DATE: 5 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Matthews Williams

RESPONDENT: No appearance

Orders

1. The proceedings are adjourned to the Registrar's List at 9.45 on 17 June.

2. That the parties attend for mediation, times and dates appointed by the Manager, Child Dispute Services.

3. Orders are made in terms of paragraphs 3, 4 and 5 of the Interim Orders sought by the father in his Initiating Application filed 5 June 2009 as set out hereunder:

   “3.That the Respondent be restrained from removing and/or causing or allowing the child […] (male) born […] October 2004 [(“the child”)] to be removed from the Commonwealth of Australia and that the Australian Federal Police place the name of the child on the airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

   4.That the Respondent forthwith surrender any passport (if one exists) of the child to the Registrar of the Court.

   5.That the Respondent be restrained from applying for a passport in the name of the child or in her name and the name of the child.”

IT IS NOTED

1. If there is no appearance by or on behalf of the mother on the adjourned date an application will be made that a Recovery Order issue in relation to the child … born … October 2004.

IT IS FURTHER ORDERED

1. That the mother be served with a sealed copy of the father’s Application, affidavits in support of that Application and a sealed copy of these orders as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Jofeh & Jofeh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1427 OF 2009

MR JOFEH

Applicant

And

MS JOFEH

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child. He was born in October 2004 and is a bit over four and a half years of age. The father says that the parties were married in September 2003 and separated for the last time on 7 April 2009. The husband understands the wife has a son B who was born in April 1998 and is 11 years of age. He understands that B came to live with his father recently, having previously lived with the mother.

2. The father says that separation occurred as a result of an assault committed on him by the mother, being the last in a history of reasonably serious assaults inflicted on him by her.  He says that he was told the mother was charged and released on bail as a result of that event and that an Apprehended Violence Order was going to be pressed in a Local Court on 3 June 2009.

3. There is a bit of corroboration for that. In a document said to have been extracted from the mother's computer, there is a rambling discourse in relation to a number of things, including a reference to a Local Court appointment on 3 June.

4. The filing stamp covers the name of the addressee but the document says:

   Dear Sir, in deference to the Court I will not be present for this matter on 3 June 2009.  I ask for your patience while I outline certain circumstances.

5. What follows is a very odd communication. There is a set of headings on the front page:

   “Divinci Code was a vendetta, easy prey”

   “Scapegoated for the Assazeal.  Ensnared and enslaved.”

   “Creating the playground, McLeay Island ergo poisoning”

   “Forced marriages in Australia.”

   “Attempted murder and murder.”

   “Men who stare at goats.”

   “Light reveals true colours.” 

   “Iceland”

   “China saves western world.”

   “Fall of whore of Babylon”

   “Traitors pose security risk.”

   “New age equals damage done.”

6. There is then a very odd, discursive, rambling, seemingly nonsensical history provided by the mother.

7. The father seeks orders.  He has filed his application on 5 June 2009.  Separation was on 6 or 7 April 2009. He seeks to explain the delay in commencing proceedings in terms of having no access to resources. It is his evidence that he has no significant funds. He says the mother inherited several million dollars in the last few years from a relative and that she has purchased properties in their names. I think there might be four or five properties and a great deal of personalty including motor vehicles, caravans, motor bikes and when the separation occurred, the husband said that he had just one of the motor vehicles with him and he has since sold that for $35,000.  He says that he was obliged to leave his paid employment at the mother's insistence.

8. It is the husband’s case that the assets have interfered with his application for Legal Aid and that contributed to a delay in him commencing proceedings.

9. He seeks that the child live with him and spend supervised time with the mother and that a pre-condition for that would be the mother attending a mental health specialist. In the first instance he seeks that orders be made ex-parte for a restraint on overseas travel, surrender of passport, prevention of further passport applications, a recovery order, the child live with him and again supervised time with the mother. He also seeks access to some personalty including boats, cars, motor cycles and other things. I assume that property proceedings will be instituted.

10. I cannot make a recovery or residence order today because the applicant father has not acted in a timely way. On his version of events, at the point of crisis, at separation he did not retain the child.  He does not even say that he asked for the child to live with him.  There have been multiple separations and, again on his version of events, on many occasions he left the child with the mother. There is no evidence that the child has come to harm. On two occasions the father had the police in Queensland visit the mother's residence and he understands from something a policeman told him, that they have attended on her house on five occasions in total. He was told that the police have become irritated by that role. The police did not report anything to the father to suggest that the child is in danger.

11. Having said that, it is possible that the child is in harms way. The material purportedly from the mother attached to an affidavit of a Ms M. There is also material referred to in the father's affidavit.  Ms M is a friend of the father.  I don't think she has ever met the mother, she just accessed the mother's website and printed this material off. Without going through all of it, unless the mother is a mystery writer prone to ruminating on the web, one would be objectively concerned in relation to the material. The material makes reference to her accessing people smugglers and leaving Australia. The father is concerned that the mother may seek to remove the child from Australia without the father's agreement.

12. There is reference in the father's material to the mother representing that she is  a social worker by trade.  There is no evidence about that beyond that assertion.  I can deal today with the father’s concern about the child being removed from Australia. The Legislation makes it an offence, once an application is filed, for a child to be removed from the Commonwealth without an order of the Court or the consent of the parents. I can confidently act in aid of that provision and otherwise bring the matter back on reasonably short notice.

13. There is an issue about finding the mother. The father says he does not have an address for her except for the properties she owns and he has been told that she has at various times been on the road travelling about. Indeed, during their relationship the parties lived in various houses, at various hotels while houses were built on properties or while caravans were relocated onto properties.  Most recently they were living and I understand separated at a property at F.

14. I will leave it to the father's solicitors to do the best they can in relation to service. The addresses will be known to the father. It might also be that the father knows the address of the father of the child B and he might be somebody who has a handle on where the mother is. If she cannot be found then we might be left in a situation where there is no choice but a Location or Commonwealth Information Order and or a Recovery Order but on the facts one would not issue a Recovery order today.

15. As has been fairly put on behalf of the father today, there are concerning aspects of his behaviour, arising from the father's evidence.  He talks about a very controlling, manipulative, violent relationship with the mother and several serious assaults committed by her with baseball bats, cans of fruit, swords and various other things. His presentation and representation is not of a person with unqualified psychological or mental health and that is fairly represented in his documents.

16. I will make an order that the parties attend for mediation at times and dates appointed by the Director and give leave to either of them to attend by telephone if that suits.  It is pretty important that we get an objective view of the state of play in relation to this child. At four years of age this is a very young child and so not capable of much in the way of self protection.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date: 17 June 2009