NAZER & MUSA AND ANOR

[2020] FamCA 618

FAMILY COURT OF AUSTRALIA

NAZER & MUSA AND ANOR [2020] FamCA 618

FAMILY LAW – INJUNCTIONS – Where the father seeks to restrain the mother  from abusing, assaulting, threatening, harassing or intimidating the father or person’s attending handover on the father’s behalf – Where there are allegations of abusive and intimidating behaviour perpetrated by the father and the mother against each other and each other’s family members – Where the allegations involve the use of social media – Where there mother is already the subject of an intervention order with the father the protected person – Where the father is already restrained from abusing, threatening, harassing or intimidating the mother – Orders.

Family Law Act 1975 (Cth) s 102NA(2)

APPLICANT: Mr Nazer

1st RESPONDENT: Ms Musa

2nd RESPONDENT: Ms Dinh

INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

FILE NUMBER: ADC 988 of 2018

DATE DELIVERED: 30 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: CG Family Law

COUNSEL FOR THE 1st RESPONDENT: Mr Roberts

SOLICITOR FOR THE 1st RESPONDENT: Calderwood Atkinson

COUNSEL FOR THE 2nd RESPONDENT: No appearance

SOLICITOR FOR THE 2nd RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Miller

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

Orders

1. That the mother and father are each restrained and an injunction is granted restraining them from using or engaging in social media or text messaging that relates to the current proceedings, each of the parties and/or members of their extended family and any reference to Z born … 2017 (“the child”).

2. That the parties are restrained and an injunction is granted restraining each of them from encouraging any third party to make reference to each of the parties, the child and the proceedings generally by the use of social media or text messaging.

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  Nazer & Musa 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 ADELAIDE

FILE NUMBER: ADC 988 of 2018

Mr Nazer

Applicant

And

Ms Musa

Respondent

And

Ms Dinh
 2^nd Respondent

REASONS FOR JUDGMENT

Introduction  

1. Ms Musa (“the mother”) commenced proceedings by Initiating Application filed on 15 March 2018 seeking an order that Z born … 2017 (“the child”) live with her and spend no time with Mr Nazer (“the father”).

2. By his Response filed 11 April 2018 the father seeks that the child live with him and spend supervised time with the mother.  By order made 11 December 2018 Ms Dinh (“the maternal grandmother”) was granted leave to intervene in the proceedings.

3. The mother resides with the maternal grandmother.  She is the eldest of eight siblings.

4. The father resides in rental accommodation.

5. Both parties are of Country B descent.  They came to Australia in their early teens.

6. The parties are from the same cultural group and the C language is their first language.  Both parties speak English fluently but the maternal grandmother needs the assistance of an interpreter during Court proceedings.

7. Each of the mother and father allege that the other has perpetrated family violence.

8. Following an incident in February 2018 the mother was arrested and charged with threatening to kill and assault.  Arising from the incident and the involvement of the police, the child was placed in the father’s care where he remains to the present date.

9. Interim orders were made by Judge Kelly on 17 July 2018 that provided for the child to live with his parents as follows:-

   1.….

   (a)        With the mother:

   i.each week from 10.00am Monday until 6.00pm Tuesday; and

   ii.each Thursday from 10.00am until 6.00pm.

   (b)With the father at all other times.

   2.That the child’s time in the mother’s care take place in the presence of either the maternal grandmother or maternal grandfather.

   3.All handovers take place inside the Suburb D Police Station.

   4.Each party is permitted to nominate one family member to attend handover on their behalf.

   5.The mother is restrained from attending at handover.

   6.The parties, their parents or their nominee behave politely and respectfully during any handover.

   7.The mother is restrained from abusing, assaulting, threatening, harassing or intimidating the child.

   8.The father is restrained from:

   (a)abusing, assaulting, threatening, harassing or intimidating the child; and

   (b)abusing, threatening, harassing or intimidating the mother.

10. The interim orders have been the subject of variation and in particular by order made on 5 June 2020, with the commencement time for the child to come into the care of the mother being changed from 8.30am on Monday and Thursday to 9.30am on each of those days.

11. The proceedings had been listed for final hearing to commence on 6 July 2020.  However, as a result of the maternal grandmother becoming pregnant the proceedings have now been listed for hearing to commence on 6 October 2020.

12. An order was made on 24 March 2020 that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) had been satisfied and would apply to any cross-examination as shall relate to each of the parties.

13. On 29 May 2020 the mother was ordered to make contact with and ascertain whether her previous solicitors E Lawyers would represent her.  If her instructions were accepted then a Notice of Address for Service was to be filed by 4.00 pm on 4 June 2020 and the solicitors were to attend at 10.00 am on 5 June 2020 for interim orders and trial directions to be made.

14. In anticipation of the hearing, the father filed an Application in a Case on 4 June 2020 seeking that the mother and the maternal grandmother be restrained from abusing, assaulting, threatening, harassing or intimidating the father or any associate or family member of the father.

15. The mother caused a Response to be filed on 25 June 2020 which sought only that the current orders (presumably the orders that provided for the child to spend time with the mother) continue.

16. Notwithstanding that the father’s application also sought orders against the maternal grandmother, his counsel conceded that there was no reference to the maternal grandmother in the father’s affidavit filed in support of the application and that the order sought against her was not able to be sustained.

17. The competing application and response were listed for argument at 10.00am on 8 July 2020.

The hearing

1. The Court did all that was possible to advise the parties and their solicitors that the hearing would be by telephone as opposed to a hearing in Court.

2. As has become the Court practice, attempts were made to contact the parties’ solicitors to ensure that the relevant dial-in information was provided. 

3. The Court was not able to make contact with the mother’s solicitors.  Efforts were made to communicate with them by telephone and email.  No response was received.  The recorded telephone message for the mother’s solicitors was to invite a message to be left which would be the subject of response within 24 hours.

4. As an indication of the difficulties that arose by the Court not being able to contact her solicitors, the mother appeared in person in court.  Her whereabouts was not hitherto known to her counsel who appeared by telephone.

5. Whilst there may have been some contact between the mother’s counsel and her solicitors earlier in the day, it was apparent that he was not able to gain instructions for the hearing.  It is surprising that counsel should be left in the invidious position of not knowing where the mother was and not being able to get instructions preferably from the instructing solicitor, but as a matter of last resort from the mother.

6. The mother was left in the difficult position of being present in a courtroom without a counsel or solicitor assisting her.  It was apparent that the mother did not have a full understanding of the proceedings and what was happening.  That is not a criticism of the mother but rather an observation of the consequences of her solicitors not making appropriate arrangements for her support and the ability of the Court to communicate with them in an efficient and effective manner.

7. The father’s counsel sought to amend the orders so that the injunction against the mother was directed to the father and those persons nominated by him to assist in the child’s handover.

8. The basis of the father’s concerns are to be found in his affidavit filed 3 June 2020.

9. The father’s work arrangements are such that he involved Ms F Nazer (“the father’s cousin) to facilitate the handover if he was not able to do so because of his work commitments.

10. It is not unreasonable that the cousin was prepared to agree to assist the father but only if the mother did not threaten, harass or intimidate her.

11. There are allegations and counter-allegations of abusive and intimidating behaviour perpetrated by each of the mother and the father against the other and family members.

12. I do not propose to repeat the contents of various text messages and social medial posts purportedly authored by the mother.  It is sufficient to note that there is substance to the father’s assertion that the mother appears to be unable to restrain herself from using offensive and derogatory language that was likely to harass, intimidate or at the very least upset the father and his cousin.  If it was only the mother’s conduct that is under consideration then there would be merit in the orders that the father seeks.

13. The affidavit of the mother filed in support of her response provides a different perspective.

14. In a manner not dissimilar to the basis for the father’s application, the mother admits at least to a significant degree the text messages and social media posts attributed to her, but responds by attaching multiple threatening and harassing messages sent by the father’s cousin to her.

15. It is conceded by the father that his cousin was responsible for the texts and social media posts that the mother attributes to her.  Not dissimilar to the mother, the messages sent by the father’s cousin are highly offensive and are intended to intimidate her.

16. The complexity that now arises is to question the appropriateness of the father’s cousin being involved with the child either in terms of any supervision during periods that the father is at work and certainly in terms of assisting in the handover of the child into the mother’s care via the maternal grandmother or some other nominated person.

17. For reasons that are not easily understood, the mother’s solicitors have included an allegation that the father’s cousin lives with a partner who has been charged with rape and sexual assault.  There is uncertainty as to the extent to which the father’s cousin cares for the child.

18. When asked as to the purpose of the allegation found at [6] of the mother’s affidavit filed 25 June 2020, the submission was that it was not relevant for the current purpose.

19. It is a significant concern of the Court that an allegation should be made that a child is placed in significant risk and then the issue is relegated to the periphery of the proceedings.

Conclusion

1. Each of the mother and the father appear to lack significant insight into either their conduct or the committed conduct of others who are involved in the management of the child.

2. The mother is currently the subject of an intervention order with the father as the protected party.  There is no need for any further order of restraint to be made in respect of the mother relating to any adverse conduct towards the father.

3. For his part, the father is already restrained from abusing, threatening, harassing or intimidating the mother.

4. What needs to be done is that the parties should be restrained from engaging in social media activity that relates to the proceedings, each of the parties, the families both close and extended of the parties and the child.

5. Whilst the Court cannot make an order of restraint against non-parties, the parties can be restrained from allowing a non-party to be involved with the child if their conduct is likely to adversely impact upon the child and is not seen to be in the child’s best interests.

6. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 30 July 2020.

Associate: 

Date:  30 July 2020