RAHMAN & BAILARD

[2019] FCCA 3566

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN & BAILARD [2019] FCCA 3566

Catchwords:
FAMILY LAW – Interim care arrangements – non-appearance by mother at court event – due process – where the evidence satisfies the court that the mother is aware of proceedings – where the child passed from the mother’s care to the father’s care following the mother’s alleged arrest for breach of an apprehended domestic violence order – best interests of the child – where evidence, on its face, suggests risk to the child – where it is appropriate for this child’s stability and best interests to not be removed from the father’s care or day care – section 68B injunction – orders made for child to live with the father pending further order – orders made for gathering of information – short adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60A, 60CC, 67ZBB, 68B

Cases cited:

Gordon & Gordon [2015] FamCA 616

Applicant: MR RAHMAN

Respondent: MS BAILARD

File Number: PAC 3609 of 2019

Judgment of: Judge Harman

Hearing date: 15 October 2019

Date of Last Submission: 15 October 2019

Delivered at: Parramatta

Delivered on: 15 October 2019

REPRESENTATION

The Applicant appeared in person

No appearance by the Respondent

ORDERS

1. Grant leave to Mr Rahman to make an Oral Application for orders that the child X born … 2016 live with his father and that X’s mother Ms Bailard be restrained from taking him into her care or attempting to do so.

2. Pending further order, the child X born … 2016 shall live with his father Mr Rahman.

3. Pending further order and pursuant to section 68B of the Family Law Act 1975:

   (a)X’s mother Ms Bailard shall be and is hereby restrained from taking X into her care, having X in her care or attempting to take or have X in her care save and accept as agreed between the parents in writing.

   (b)Ms Bailard shall be and is hereby restrained from attending at or being upon the father’s premises C Street, Suburb A or any daycare centre or other premises at which X may be from time to time.

4. The matter is adjourned for further mention and directions to 12 November 2019 at 12pm.

5. Should Ms Bailard wish to participate in these proceedings then she shall:

   (a)no later than close of business 8 November 2019 file and serve a Response, Affidavit sufficient to comply with the Federal Circuit Court Rules 2001 and Notice of Risk; and

   (b)attend in person before this court whether legally represented or not 12pm 12 November 2019.

6. Pursuant to s.69ZW(1) I order and direct the NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:

   (a)Any notification to the agency of suspected abuse of or by the following:

   (i)X born … 2016;

   (ii)Mr Rahman born … 1984;

   (iii)Ms Bailard born … 1987;

   or any of them.

   (b)Any notification of suspected family violence affecting the above persons or any of them;

   (c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;

   (d)Any reports commissioned by the agency in the course of investigating a notification;

   and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.

7. Neither party nor the Independent Children’s Lawyer (if appointed) shall cause any subpoena or further subpoena to be served upon the NSW Police Service without the Court’s leave.

8. Request that the Registrar forward a request to the Registrar of the Local Court Suburb A to provide to this Court a copy of all and any documents held by that Court relating to or involving the parties and/or the child X born … 2016 including all bench sheets, Orders, reasons for determination, Judgements, documents and, if available, transcripts of evidence.

9. Request that the Registrar forward a copy of these orders to the Control Commander Suburb A Police so that they are aware of these proceedings and orders made today and NOTING that Suburb A Police have previously been involved in applying for and obtaining an Apprehended Domestic Violence Order on behalf of Mr Rahman’s partner Ms B and are presently prosecuting a charge of breach Domestic Violence Order against Ms Bailard which the court understands is next returnable before Local Court Suburb A 17 October 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3609 of 2019

MR RAHMAN

Applicant

And

MS BAILARD

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for a young child, X, born … 2016. 

2. The parties to the proceedings are X’s parents, Mr Rahman, the applicant and Ms Bailard, the respondent.  They are X’s father and mother respectively. 

3. Mr Rahman appears in person and unrepresented today. 

4. Ms Bailard does not appear today.[1] I am satisfied that Ms Bailard is aware of the proceedings, whether personally served in accordance with the Federal Circuit Court Rules or otherwise. Material annexed to an affidavit filed in court today by Mr Rahman, which will be treated as a proof of evidence, makes clear that there has been dialogue between the parties as to the proceedings and the material previously served.

   [1] NOTE: Since delivery of these reasons it has become apparent that the respondent was, at the time that the matter was dealt with, detained as a forensic patient pursuant to ss.22 and 27 of the Mental Health Act 2007 (NSW)

5. Ms Bailard had been arrested with respect to an alleged breach of Apprehended Domestic Violence Order made on 11 September.  Following her arrest, young X has passed from his mother’s care to his father’s, where he remains. 

6. Leave is sought to make an oral Application for orders that would continue those arrangements and provide some degree of security of placement for X.  I propose to grant that leave and to deal with that application. 

7. It is unclear why Ms Bailard does not appear today. While Ms Bailard was arrested, it would appear from the best that is known by Mr Rahman, that bail was granted on not particularly stringent conditions, certainly not conditions that would preclude the mother’s participation.  Accordingly, I am satisfied that the matter can and should proceed today, being satisfied that Ms Bailard is, in all probability, aware of the proceedings, although not necessarily the specific orders sought orally today. 

8. To the extent that this might raise some concern with respect to due process, I am conscious of that which fell from Forrest J in Gordon & Gordon [2015] FamCA 616, particularly paragraphs 3 to 5 thereof, and which I incorporate herein.

   3. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.

   4. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.

   5. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.

9. If the child’s best interests are genuinely to be the paramount consideration, as section 60CA dictates, then those best interests must inform all decisions made by the court, including, in this case, proceeding with an application of which the mother may not be aware. 

10. However, the proceedings are on foot. Ms Bailard is aware of them. She has had, I am satisfied, a reasonable opportunity to participate. Her failure to appear is not the subject of misadventure known to Mr Rahman.

11. I propose to make additional orders that will ensure that the patrol commander of Suburb A Police is notified of orders made today.  That may be of some assistance in further advising Ms Bailard of the proceedings and orders made. In any event, these orders may impact upon the Apprehended Domestic Violence proceedings, the criminal charges presently preferred, or any other action or investigation undertaken by police.

12. In dealing with the application, I have read and considered each of the documents filed or tendered by Mr Rahman. 

13. In dealing with the legislative provisions, reference will be made to aspects of that evidence. 

14. As already indicated, section 60A is the starting point for all that is done by the court. Young X’s best interests are the paramount consideration.

15. I must have regard to the objects and principles.  Although they do not form part of the substantive law, they indicate to the court the outcome to be achieved.  X should have the benefit of both parents having a meaningful involvement in his life, to the maximum extent consistent with his best interests, as well as being protected from harm.

16. I do not suggest that there is expert evidence before the court that would raise specific concerns as to Ms Bailard’s behaviours or mental health.  However, there are a number of aspects of the evidence, as annexed to the proof of evidence now provided by Mr Rahman, which would cause some suspicion warranting further inquiry and investigation.  There are a number of photographs which are, at the least, morbid.  The photographs are forwarded by the mother to Mr Rahman.  They depict various grave sites and including the young child sitting upon one of those graves. 

17. Messages sent, connected therewith, suggest that the mother holds some malintent towards Mr Rahman and/or members of his family. Concern is expressed by Mr Rahman when those messages are received. The mother has clearly received Mr Rahman’s entreaties of support as disingenuous, replying, “Like I said two years ago, “Fuck off and your corrupt mother too, cunt.” 

18. The mother has forwarded a long and rambling email to Mr Rahman in which she makes various unusual and difficult to understand references to events such as engagement with the Department of Family and Community Services, possibly veiled suggestions of self-harm, and the like.

19. The mother similarly sends text messages referring to children who have experienced misadventure, the Minister for Home Affairs and others, in a fashion that would suggest some disorder of mood at the very least.  That is not to suggest any finding is made that it is so.  The messages are, however, matters that cause some degree of concern as to this child’s protection from, at the very least, neglect. 

20. The mother does not participate, and accordingly, anything that she might seek to raise in the proceedings is not known, although, as indicated, I am satisfied she has had a reasonable opportunity to participate in the proceedings. 

21. Indeed, Ms Bailard has had a reasonable opportunity, bail having been granted following her arrest, to have commenced proceedings herself, should she have so desired, to seek orders for the child’s return to her care. It may well be that the mother is engaged with other priorities at this point – without intending criticism of her – such as addressing the criminal proceedings in which she is involved and/or her health.

22. The objects, however, must, at this point – and without some participation of the mother, and thus exploration and explanation of the various messages, texts, and emails that she has sent – urge some caution. 

23. The principles that are applicable define rights for young X, including a right to know and be cared for by both parents, to spend time with both parents, and to have the parents agree. That would not appear, from the material available, being Mr Rahman’s evidence solely, to have been something that has occurred in any meaningful way since the parents separated.  Accordingly, the principles do not assist a great deal. 

24. I must have regard to the presumption of equal shared parental responsibility. I do not propose to make an order for equal shared parental responsibility or to apply the presumption. The presumption is addressed by reference to subsection (3).[2] These are interim proceedings without the mother’s participation. Without an ability to properly contextualise aspects of the evidence, I am satisfied that it is inappropriate for the presumption to apply. Thus, section 61C will apply. 

    [2] section 61C(3) of the Family Law Act 1975 (Cth)

25. There is a consequence or effect of the orders I propose to make: Mr Rahman will effectively have sole parental responsibility, as X will be in his care at all times. That stops short, however, of interfering with what might be asserted by either parent as a “right” to parental responsibility, (although, in effect, such a right does not exist). That being so, I am not obliged to consider equal or substantial and significant time. I will, however, address both by reference to sections 60CC and 67ZBB.

26. In turning to section 60CC, I must commence with the primary considerations, being the benefit to X of a meaningful relationship with both parents and the need to protect him. The latter prevails over the former by subsection (2A).

27. I am satisfied in this case and by reference to the above discussion of evidence, limited as it is, that protection must be more important. Accordingly, I propose to make orders that X remain living with Mr Rahman. I propose to grant injunctive relief, under section 68B, that Ms Bailard not seek to take X into her care, whether by removing him from his day care centre or from Mr Rahman himself.

28. The additional considerations cannot be addressed in any meaningful fashion.  There is no evidence of X’s views and no real evidence of the child’s relationship.  One would imagine, in light of the mother’s behaviours and her involvement of X in those behaviours, let alone the arrest on 11 September which, it is suggested, involved something akin to a “siege” which the child was present for, that the removal into his father’s care was distressing, not because he was passing to his father, but because of the events that preceded that placement. 

29. Beyond that, however, there is nothing known of X’s views, his practice of relationship with his mother, or how he is presently faring in its absence. The balance of factors, as already indicated, do not assist a great deal. That is particularly so as to the need for a protective response to the mother’s messages and behaviours, which cannot be properly or fully contextualised at this time, but which must dominate the consideration of section 60CC(2A).

30. Section 67ZBB also imposes obligations upon the court to take prompt action in relation to allegations. They include obligations to gather evidence.

31. I propose to make section 69ZW orders and to request that the Local Court, Suburb A be requested to provide materials they hold. I also intend to make orders for the protection of the child and parties. To that end, I propose to make orders pursuant to section 68B, as already indicated, which will restrain the mother from taking X into her care or attempting to do so, as well as restraining the mother from attending at or approaching or being within 100 metres of the father’s home or the child’s day care centre.

32. The power under section 68B must be exercised in the child’s best interests but otherwise the test is that orders might be made whenever considered appropriate. I am satisfied it is appropriate for this child’s stability and best interests to not be removed from the father’s care or day care, and accordingly, orders in those terms will also be made.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  9 December 2019