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

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.
Pending further order, the child X born … 2016 shall live with his father Mr Rahman.
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.
The matter is adjourned for further mention and directions to 12 November 2019 at 12pm.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RAHMAN & BAILARD

Details

AGLC: Rahman and Bailard [2019] FCCA 3566
Case: [2019] FCCA 3566
Decision Date: 15 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Harman considered interim care arrangements for a child, X, in proceedings between the child's father, Mr Rahman, and the child's mother, Ms Bailard. The dispute arose following the child's transfer from Ms Bailard's care to Mr Rahman's care, allegedly after Ms Bailard's arrest for breaching an apprehended domestic violence order. Ms Bailard did not appear at the court event.

The court was required to determine whether it was appropriate to make interim orders for the child to live with the father, and to restrain the mother from taking the child into her care, given the circumstances. Key issues included whether Ms Bailard was aware of the proceedings, the best interests of the child, and whether the evidence suggested a risk to the child's safety and stability. The court also considered the implications of Ms Bailard's non-appearance and the need for due process.

Judge Harman reasoned that the evidence, on its face, suggested a risk to the child, and that the child's stability and best interests favoured remaining in the father's care. The court granted leave for Mr Rahman to make an oral application for orders that the child live with him and that Ms Bailard be restrained from taking the child. The court made orders for the child to live with the father pending further order, and pursuant to section 68B of the *Family Law Act 1975*, restrained Ms Bailard from taking the child into her care or attending at the father's premises or the child's daycare, except as agreed in writing. The court also directed the NSW Police Service to provide information regarding any notifications of suspected abuse or family violence concerning the parties and the child, and requested documents from the Local Court concerning the parties. Ms Bailard was given a deadline to file a response and affidavit if she wished to participate, and was required to attend court on a specified date. The matter was adjourned for further directions.

Orders

Orders of the court

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.

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

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.

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

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.

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.

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.

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.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.