Matthews and Mistry

[2017] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATTHEWS & MISTRY [2017] FCCA 2259

Catchwords:
FAMILY LAW – Application to vary interim orders preventing child from coming into contact with mother’s fiancé – consideration of risk – order varied.

Applicant: MS MATTHEWS

Respondent: MR MISTRY

File Number: PAC 1227 of 2016

Judgment of: Judge Obradovic

Hearing date: 10 July 2017

Date of Last Submission: 8 September 2017

Delivered at: Parramatta

Delivered on: 12 October 2017

REPRESENTATION

Appearing for the Applicant: Mr Nyman

Solicitors for the Applicant:	Milford Nyman Solicitors & Conveyancers
Appearing for the Respondent:	Mr Rowlandson

Solicitors for the Respondent: Rowlandson & Co Solicitors

Appearing for the Independent Children's Lawyer: Ms Soliman

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. That order 7 made on 29 August 2016 be varied to read as follows:

   The mother is restrained by injunction from leaving the child, at any time, in the sole care of Mr H.

2. The listing of the matter at 11.30am on 28 November 2017 is vacated noting the matter will be listed upon the release of the Family Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1227 of 2016

MS MATTHEWS

Applicant

And

MR MISTRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In a further interim skirmish between the parents in these proceedings, the mother seeks that a restraint imposed by the Court on her on 29 August 2016, be lifted.

2. That restraint, being order 7 of the orders made on 29 August 2016, prohibits the mother from bringing the child of the parties, X born on (omitted) 2008, into the presence of or leaving the child in the care of Mr H at any time. Mr H is the mother’s fiancé.

3. The restraint was part of a series of orders made after a contested interim hearing.

4. At the time of the interim hearing, the mother was already in a relationship with Mr H, a matter which only came to the notice of the father on or about 24 August 2016. It was on or about this date when the mother for the first time deposed in her Affidavit that she commenced a relationship with Mr H in or about March 2016.  The restraint which was imposed at the time was supported by the Independent Children’s Lawyer, given Mr H’s criminal history.

5. On 23 December 2016 the father filed an Application-Contravention, alleging that on 17 November 2016 the mother breached order 7 of orders made on 29 August 2016. On 13 February 2017, the mother admitted to contravening the order, but pleaded reasonable excuse. The reasonable excuse hearing was subsequently adjourned on the mother’s application, and ultimately heard on 6 July 2017 with reasons being delivered on 10 July 2017. The Court recorded a finding that the mother without reasonable excuse contravened the orders, the mother was ordered to pay costs and she was placed on a good behaviour bond for 12 months.

6. It was subsequent to the Contravention proceedings being commenced that the mother on 3 April 2017 filed an application in a case seeking to discharge order 7 of 29 August 2016. She relies on three Affidavits filed in support of that application. The father has also filed an Affidavit in answer to the mother’s application.

7. Each of the parties and the Independent Children’s Lawyer have filed Submissions in respect of that application in a case. The father strongly opposes the lifting of the restraint, while the Independent Children’s Lawyer takes somewhat of a middle road, arguing that a restraint ought to be in place but not in absolute terms.

8. The father argues that until such time as the evidence can be tested, the restraint ought to remain. It was submitted on behalf of the father that when one considers the totality of the mother’s evidence, it appears that the seriousness and magnitude of Mr H’s criminal antecedent record is significantly downplayed. It was further submitted that as at 2005 Mr H was subjected to orders to deal with substance abuse and the particular substance abuse is not identified in any source documents nor does Mr H give any evidence about his current health in any meaningful way. Furthermore, the father argues that because:

   a)Mr H deposes in his Affidavit to his biological son X being in trouble with New South Wales Police and the true extent of such police involvement is yet to be disclosed;

   b)the mother waited some eight months to file the application after the interim orders were made and that it is common ground that the parties occupy separate residences;

   c)it is anticipated that this matter will receive a final hearing date in 2018; and

   d)the father wants an opportunity through his legal representatives to cross-examine Mr H to enable the father to be satisfied that Mr H does not pose an unacceptable risk of harm to X

   that the restraint should remain.

9. The difficulty for the mother is that she is now engaged to marry Mr H. His children attend the same school and church as the subject child and are friends. The mother looks after Mr H’s children from time to time.

10. Importantly, when he was interviewed by the Family Consultant for the purposes of the Child Inclusive Conference on 3 February 2017, the child said, when asked about Mr H, that he was kind to him and that he is not fearful of him in any way. The child denied ever witnessing Mr H being aggressive towards the mother, and he stated “we used to see him now but we don’t’ see him that much will stop we looked after his kids. We still do but we don’t see him.”

11. The child is aware that the father “does not like” Mr H and he reports that the father had spoken negatively to him about Mr H. The child stated “he said he is a bad man but he is good. He is nice.” The Family Consultant reports that the child is confused between his experiences of Mr H and what the father has told him. The child is aware that Mr H has been to gaol a few times because this is what Mr H has told him.

12. While there are some concerns arising out of Mr H’s criminal history,  including that in (omitted) 2005, Mr H was sentenced to 24 months imprisonment (not being the first time he had served a term of incarceration) and that there was a supervision order to deal with his substance abuse. Mr H's Affidavit explains that this last term of imprisonment was reduced due to his intervention in a prison brawl where he protected a number of prison officers.

13. The Court is satisfied that there are sufficient risks associated with Mr H’s violent criminal history to warrant the Court acting cautiously in respect of the child. However, the spotlight is very much now on the mother and Mr H, and the child is well aware of the father’s concerns. The Court accepts the submission made by the Independent Children’s Lawyer that the continuation of the order as made on 29 August 2016 will further entrench the parties in conflict and discord, and the consequences of which will inevitably have a flow on effect on the child and his ability to enjoy a relationship with his parents.

14. For all of these reasons, the Court is persuaded that the restraint ought to be amended such as to restrict the child from being left in the sole care of Mr H.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 12 October 2017