Batas & Gaire (No 2)

Case [2024] FedCFamC1F 672

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Batas & Gaire (No 2) [2024] FedCFamC1F 672

File number(s): PAC 4114 of 2019
Judgment of: KARI J
Date of judgment: 18 October 2024
Catchwords:

FAMILY LAW – CHILDREN – With whom a child spends time – Family Violence – Where the father carried out a retributive attempted suicide at the mother’s place of work – Where the Court finds the father was the perpetrator of significant family violence throughout the relationship and post separation period  – Where the father’s actions constitute family violence in the form of coercive and controlling behaviour– Where the Court is satisfied that the family violence that the mother has experienced has been significant and severe – Where the Court is satisfied that the father used the trial process itself to inflict further psychological harm on the mother – Where the father attempted to minimise his conduct constituting family violence throughout his evidence – Where the father has an inability to understand the impact of his behaviours – The mother is to have sole parental responsibility for the child and the child is to live with the mother

FAMILY LAW – CHILDREN – Unacceptable risk – Where the mother’s case is that the father presents an unacceptable risk to the child – Where the mother suffers from Post Traumatic Stress Disorder (“PTSD”) – Where the mother suffers a range of symptoms which have a debilitating effect on her – Where the court accepts that ongoing time spending between the father and the child will continue to be a PTSD trigger for the mother – Where the mother’s emotional and psychological functioning is significantly compromised –Where the mother’s functioning is impacted by the father having contact with the child – Where the mother’s functioning needs to be protected – Where the father has not taken any meaningful steps to address the significant risks that he presents – Where the father displayed an incapacity for reflection, insight and remorse – Where the risk of harm posed by the father is extreme – Where the protection of the child from harm centres around the mother’s security and safety – No time spending between the father and the child – Injunctions granted for the personal protection of the mother and the child    
Legislation:

Australian Passports Act 2005 (Cth) s 11(b)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 68B, 102NA, Pt VII

Family Law Amendment Act2023 (Cth)

Crimes Act 1900 (NSW) s 195(1)(A)

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32(3)(a)

Cases cited:

Batas & Gaire [2023] FedCFamC1F 685

Carter & Wilson [2023] FedCFamC1A 9

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Isles & Nelissen (2022) FLC 94-092

M v M (1988) 166 CLR 69

Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 1 First Instance
Number of paragraphs: 144
Date of hearing: 18-22, 25 March 2024
Place: Heard in Parramatta, delivered in Adelaide
Counsel for…

Continue reading Batas & Gaire (No 2)

Sign in free to access the full text

Details
AGLC
Batas & Gaire (No 2) [2024] FedCFamC1F 672
Case
[2024] FedCFamC1F 672
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Batas & Gaire (No 2) involved significant family law disputes regarding the care and custody of a child, X, born in 2011. The parents, Mr Batas and Ms Gaire, separated in 2017 and were divorced in 2018. The central legal issues in this case revolved around the determination of parental responsibility and the safety of the child, given the history of family violence perpetrated by the father against the mother. The court had to decide whether it was in the best interests of the child to have any form of contact with the father, considering the severe and persistent nature of the family violence.

The court found that the father had been the primary perpetrator of significant family violence throughout the relationship and even after separation. This included a retributive attempted suicide at the mother's workplace, which involved extensive self-harm and property damage, causing severe psychological trauma to the mother. The court further concluded that the father's actions constituted coercive and controlling behaviour, indicating a pattern of severe family violence. The court was also satisfied that the father had used the trial process to inflict additional psychological harm on the mother, showing a lack of insight and remorse. Given these findings, the court determined that any form of contact between the father and the child posed an unacceptable risk of harm, both physically and psychologically.

As a result, the court ordered that the child, X, live with the mother and that there be no time spending or communication between X and the father. The court also granted injunctions to protect the mother and the child from the father, including restrictions on the father's ability to approach or contact them directly. Additionally, the court allowed the mother to change the child's surname and to provide necessary documentation to relevant authorities and professionals. The court also mandated that copies of a Family Report be destroyed and suppressed to protect the privacy and safety of the family. The court's decision was aimed at ensuring the child's safety and well-being, considering the severe and persistent family violence perpetrated by the father.

Orders

Orders of the court

PAC 4114 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BATAS

Applicant

AND:

MS GAIRE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:

1. All previous parenting orders made in these proceedings be discharged.

2. The mother have sole parental responsibility for the child X born 2011 (“the child”).

3. The child live with the mother.

4. There be no time spending or communication between the father and the child.

5. Pursuant to s 68B of the Family Law Act 1975, and for the personal protection of the mother and/or the child, the father is restrained and an injunction is granted restraining the father from:

(a) Approaching or coming within 100 metres of:

(i) The mother MS GAIRE;

(ii) The child;

(iii) Any place where the mother MS GAIRE lives and/or works;

(iv) Any place where the child lives;

(v) Any school that the child attends.

(b) Contacting the mother MS GAIRE in any way unless that communication is through a lawyer.

6. The mother shall be at liberty to do all such acts and things and sign such documents as may be necessary to cause the child’s name to be changed to X GAIRE.

7. Pursuant to s 11(b) of the Australian Passports Act 2005, the mother shall be at liberty to obtain, and renew, an Australian Passport for the child without the father’s consent.

8. The mother shall be at liberty to remove the child from the Commonwealth of Australia from time to time and the consent of the father is not required for such removal.

9. The mother have leave and she be at liberty to provide a copy of these orders and the simultaneously published reasons to each:

(a) New South Wales Police;

(b) Any medical practitioner, psychologist, psychiatrist, counsellor or social worker the child attends upon.

10. The mother have leave and she be at liberty to provide a copy of these orders to the child’s school.

11. The mother have leave and she be at liberty to provide a copy of the Family Report prepared by Dr B dated 14 January 2022 to any medical practitioner, psychologist, psychiatrist, counsellor or social worker the child attends upon.

12. That within 3 days of the expiration of the Appeal period, and on the basis that no Appeal has been filed by either party, the legal representatives for the parties and the Independent Children’s Lawyer are to destroy any and all copies of, and delete same from any electronic device, the Family Report of Dr B in all forms.

13. That the Family Report of Dr B, in all forms, that has been filed in accordance with Order 5 of the Orders dated 26 May 2023, shall remain suppressed on the Court file and not accessed without further Order of the Court.

14. The father’s legal representatives be permitted to provide a copy of these orders and the simultaneously published reasons to a NAATI accredited interpreter and/or translator who is not related to him and with whom he does not have a personal relationship.

15. That the appointment of the Independent Children’s Lawyer be discharged (subject to any appeal), PROVIDED HOWEVER that the ICL is to meet with the child and explain the final orders to her.

16. That the proceedings be dismissed as finalised.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, orders shall be made in accordance with those promoted by the mother and ultimately supported by the ICL. Of significance, X shall henceforth live with her mother and there shall be no time spending between the father and X.BACKGROUND The uncontroversial background of the parties’ relationship is as follows:(a)The parties were both born in Country C and lived there until their migration to Australia together in 2006.(b)The father was born in 1970 and at the time of trial he was 54 years of age. The father is a currently employed in manufacturing and additionally he casually works in transport.(c)The mother was born in 1973 and at the time of trial she was 50 years of age. The mother is a medical professional.(d)The parties were in a relationship for a period of approximately 14 years. They married in Country C in 2003 and they separated in Australia in May 2017.(e)Following the separation of the parties, they continued to live together under the same roof until approximately mid-2018, when the parties vacated the rental property that they were residing in.(f)At the time of the parties’ physical separation, the father moved to Melbourne to take up residence with his brother, and the mother relocated to a property that she owned at Suburb R. (g)The father returned to live in City S in approximately late 2018, with the mother meeting the costs of the father’s housing until mid-2019.(h)The parties were divorced in late 2018, having made a joint application. There are two children of the relationship:(a)A now adult child Mr N born 2004 (“Mr N”), who at the time of trial was 19 years of age; and(b)The subject child of the proceedings X born 2011, who at the time of trial was aged 12 years. It is the mother’s case that:(a)She remained living under the same roof as the father following their separation in May 2017, as she was “fearful that the Father would commit suicide if she was to vacate the property and physically separate” from him.(b)Her worst fears about the father’s long-made threats of self-harm came to fruition in early 2019, when he attempted suicide at her place of work. (c)The father’s plan of suiciding however was interrupted by action taken by the mother, which unquestionably, as ultimately acknowledged by the father in his oral evidence, saved his life. (d)Throughout the balance of these reasons, this incident will be referred to as “the retributive attempted suicide”. Turning to consider the retributive attempted suicide, I am satisfied from the evidence that:(a)The father gained entry into the premises of the mother’s place of work in the late evening on the previous day or early hours of the morning on a day in early 2019.(b)Prior to attending the premises, the father had consumed 15 tablets of Nurofen 200mg and seven tablets of Phenergan (Exhibits “ICL2” and “M6”).(c)The father gained entry using a “previously duplicated key” (Exhibit “ICL2”) that he had taken from the mother without her knowledge or permission, likely as early as sometime in late 2017 when she noticed that a key was missing.(d)Whilst inside the premises the father proceeded to inflict cuts to himself (visible in a photograph), which caused significant bleeding and left extensive blood splatters on various walls and drips of blood on the floor throughout the premises, presumably as he moved about.(e)As the father moved about inside the premises, he dripped and smeared blood on almost every surface in every room throughout the premises, including but not limited to the walls, doors, floors, desks, medical equipment, examination beds, cupboards, bathroom, chairs, sinks, kitchen surfaces and equipment (including the microwave and fridge), computers and keyboards, medications and medical supplies, paper records, charts, office and administrative equipment and records. Having had regard to the graphic contemporaneous photographs, I accept the description of the damage in the police records (Exhibit “M5”) as being sighted in “every room… [and] caused by the [father’s] blood”.(f)The father wrote messages in his own blood on various walls and doors throughout the clinic.(g)The father left handwritten messages on paper and placed them on various desks in the workplace and on an artwork of handprints bearing the children’s names, all containing the words “sorry” to each X and Mr N, together with a note on a computer keyboard with the words “good luck [Ms Gaire]” (Exhibit “M1”).(h)The father thereafter lay on an examination bed in the mother’s consulting room (Exhibits “ICL2” and “M6”) and fell asleep; presumably to bleed out and be found dead the next morning.(i)The receptionist of the clinic arrived at the practice for work the next morning at 8.00 am and immediately had her suspicion aroused as she saw the father’s car parked in the staff carpark at the rear of the clinic and noticed that the “steel bar door was unlocked and slightly a jarred [sic]” (Exhibit “M5”). The receptionist thereafter noticed that there was writing on the walls inside the clinic which appeared to be in blood.(j)The mother arrived at the premises shortly thereafter and was the first person to discover the father, asleep on an examination bed with a “major laceration”. There was dried blood around this wound and a “pool of congealed blood on the floor” (Exhibit “M5”).(k)The mother woke the father and thereafter administered emergency care to him prior to ambulance and police personnel arriving. The father accepts, and I find, that this emergency care provided by the mother likely saved his life.(l)The father was thereafter taken by ambulance to hospital for assessment and treatment.

Evidence

Evidence Before The Court

I have assessed the evidence in these proceedings and made findings throughout these reasons by applying this standard of proof.THE EVIDENCEDocuments relied upon Each of the parents filed a trial affidavit in the proceedings and they each gave oral evidence during the trial. The father relied on the following documents:(a)His Further Further Amended Initiating Application filed 10 January 2024;(b)His Trial Affidavit filed 17 July 2023;(c)The Case Outline filed on his behalf on 18 March 2024. The mother relied on the following documents:(a)Her Amended Response to an Initiating Application filed 14 July 2023;(b)Her Trial Affidavits filed 17 July 2023 and 9 August 2023;(c)The affidavit of her Clinical Psychologist, Dr E filed 1 October 2021;(d)Her Notice to Admit dated 30 June 2023 I record that in the lead up to the trial and occupying some significant court time and case management, the father had indicated to the Court that he intended to call various professional witnesses identified as the father’s treating practitioners. Whilst reports had been obtained by the father from these professionals, ultimately those professionals were either not prepared to give oral evidence at the trial and their evidence was not received, and/or they were not relied upon by the father. The witnesses that fell into this category were:(a)Dr J;(b)Dr V; and(c)Dr L. In addition, the father sought to rely upon the evidence of certain lay witnesses.(a)Ms W, a friend of the father who is a medical professional, who swore an affidavit on 17 July 2023;(b)Mr Y, who swore an affidavit on 14 July 2023; and(c)Ms Z, who swore an affidavit on 21 July 2023. None of these lay witnesses were required for cross-examination by the mother’s senior counsel. Having had regard to each of their affidavits, I am satisfied that little relevance and weight attaches to their evidence because:(a)They have been proffered as witnesses who depose to the father’s good character; and(b)They have little knowledge of the mother’s detailed allegations of family violence (albeit that they may be aware of something about the retributive suicide attempt, if and as explained to them by the father). A number of exhibits were received into evidence during the trial and are referred to throughout these reasons. In particular I have had regard to a number of records received into evidence from the police, hospitals and the criminal proceedings (Exhibits “ICL1”, “ICL2”, “M5”, “M6”, “M7”, “M9”, “M10”). Those records have been of assistance in making findings in relation to the retributive attempted suicide. I accept the veracity of the facts contained within those records, given there was no challenge to the same, particularly by the father. I also accept the facts contained in those records in preference to any contrary evidence given by the father in circumstances where I am satisfied that the evidence of the father in relation to the retributive attempted suicide was of no assistance because he either could not remember, was avoidant, evasive, or a combination of all three.The Family Report

Decision

Reasons for decision

I am satisfied that X’s cultural needs are capable of being met by either parent, given their shared Country C heritage.CONCLUSION In light of all of the matters discussed throughout these reasons, I consider it in X’s best interests that orders be made maintaining her in the sole care of the mother and that the mother have sole parental responsibility (including the ability to obtain a passport for X). As I have earlier identified, I am satisfied that any form of time spending and/or communication between X and the father presents an unacceptable risk of harm to X and the mother. I have otherwise come to the decision that it is appropriate that there be no time spending or communication between X and the father moving forward. I accept that it is appropriate for there to be injunctions in place regarding the mother and X, particularly if those injunctions will assist the mother’s sense of security and safety. I am satisfied that it is also appropriate for X’s surname to be changed. Firstly, because this is something that X herself wants, but secondly so as to minimise the triggering impact upon the mother of having to use the father’s surname when referring to X. I am also satisfied that in obtaining therapeutic support for herself and X, that the mother be at liberty to provide a copy of Dr B’s unredacted report, together with a copy of these reasons to any proposed medical practitioner and or therapist. In light of the concerns expressed by Dr B, I consider it appropriate that there be ongoing restrictions in relation to the father retaining a copy of Dr B’s report. I also consider it appropriate, as requested by the mother, for the legal representatives to destroy any copies that they have of Dr B’s report and that thereafter the copies of the report on the court file be supressed. For all of these reasons I make those orders that appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Throughout these reasons I have discussed a range of matters encompassed by the s 60CC considerations. I do not propose to repeat those matters. Rather, I set out hereunder additional matters to which I have had regard:The Primary ConsiderationsThe benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence In light of the findings that I have made about the extensive existence of family violence perpetrated by the father towards the mother, the primary considerations contained in s 60CC are of overriding concern. To that end, it is difficult to conceive of a more glaring and obvious example of “the need to protect a child from the physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence”. In light of all of the matters discussed throughout these reasons, I am satisfied that the risk of harm posed by the father is extreme. He has shown capacity for significant self-harm, threatened over an extended period of time; including at least one attempt in early 2018 in which X was present in the immediate aftermath. I specifically accept Dr B’s opinion that:572.My impression is that this pattern of family violence was at the severe end of the spectrum, in terms of the persistence and intensity of the father’s coercive attempts to maintain the parental relationship even after the mother had clearly signalled her intention to depart the same and even as and after she did depart the home, and the father’s willingness to deliberately cultivate and amplify guilt, suffering, fear and (once the mother had left the home and informed persons outside the parental relationship of the same) private and public shame, in the mother, in order initially to coerce the mother to stay, then (once she had left) in order to ensure that he had a lasting and significant presence in her mind and impact upon her.573.The father’s threatening behaviour at times extended to menacing behaviour and the deliberate and persistent cultivation of fear in the mother, particularly around repeated paternal threats to end his own life. These threats extended to enactments such as the occasion in early 2018 when the father actually did cut [himself], then (the mother claims, and I think it likely that this did occur) unbandaged the bandaged [injury] on two occasions and involved the child [X] in this enactment, and other occasions when he stormed out of the home expressing intent to die on the road.574.The father made threats to haunt the mother after death (contained in his suicide notes… [and] threats to ruin her reputation by killing himself at her work.575.The father sought to increase the reach and impact of his coercive and threatening behaviour by writing multiple suicide notes … and hiding these in places such as in the mother’s handbags or under the mat in her car, so that she found them gradually over the period from August 2018 to early 2020. Two of these are re-written copies of the other two, with slight variations, suggesting that (rather than the father merely experiencing repeated moments where he felt the need to express his distressed feelings) the father was deliberately “making multiple copies” (my words) so as to amplify reach and impact. The father at interview described having written only the four of such notes as presented by the mother, but I think it likely that the mother’s narrative is more accurate, that these are only examples of the many such notes that she found in various places over time.576.In the context of the paternal behaviour above, in my view the father having [a tattoo relating to the mother and children] after the mother had clearly stated her intention to depart the relationship, then showing the mother [this tattoo] and texting to her a picture of the same on the day of her departure from the home and in the context of his own repeated threats of suicide, was a coercive and menacing paternal act. This act […] reinforced the father’s statements in the suicide notes written around that time, “this is my one-sided continuous love”, and “I don’t want you to love me. But my right is to love you. I keep loving you”.577.Post-separation, the father has actively sought to undermine (the mother uses the word “destroy”) the mother’s standing and reputation in her own and his own extended families and in the broader community, at the expense of the protection or elevation of his own reputation and standing. The father has painted the mother as a woman who left the marriage because of an affair and immediately upon her gaining the [professional] qualifications that he had sacrificed himself for, which in my view is not an accurate portrayal of circumstances or of the mother’s motivations. The father confirmed with me that he had been to see the maternal grandparents in person with this narrative, and had contacted the mother’s best friend also. The mother describes the father having actively promulgated this narrative amongst the parents’ contacts within the [Country C] community in Sydney such that she now felt unable to engage in community events. My own telephone interview with psychologists [Ms P] and [Mr Q] and the report of forensic psychiatrist [Dr J] confirm that he has expressed this narrative in professional settings.578.The particularly intrusive, menacing, and impactful enactment of the father’s coercive behaviour was the father’s act of self-harm and damage to property at the mother’s workplace in [early] 2019, including his spreading his own blood throughout every room of the workplace, and writing on the walls with blood [photographs at Annex D to the mother’s affidavit of November 2019].579.The extent of impact and damage was such that police were prompted to charge the father with [domestic violence related property offences], even though the mother's partner’s narrative to me was that the mother was minimising the significance of the father’s actions, on the day. The facts underlying this charge were not subsequently challenged or dismissed, rather the charge was dealt with under Section 32 of the NSW Mental Health (forensic provisions) act.580.The father’s actions were planned, and the setting and date of the act chosen so as to maximise the negative impact upon the mother. The father does not dispute that in order to enact this process, he utilised a key that he had obtained at an earlier time. The mother recalls losing a key a year or two prior to the event. The father told staff during his hospital admission immediately following the event that the acute prompt to take this action was information obtained from his daughter and subsequent discussions with the mother […] before the act. He told staff during this admission that he had decided to kill himself on [a special occasion], so that his wife cannot forget the pain. Again, the father is expressing his intention to have enduring and insurmountable negative impact upon the mother.581. The father’s actions [in early] 2019 were an enactment of the paternal attitudes and intentions expressed in the suicide notes addressed to the mother and written around August 2018. He wrote in one of those notes, “When my death takes place, you will have a lot of fear”.582.The father’s actions on that day were vengeful and aggressive. The father told me at interview that he was burning with jealousy, on that day.…605.In my view, there is significant risk of [X] being exposed to family violence within a future paternal partner/ marriage relationship over the almost 10 years until she reaches the age of 18.606.There would be a particular risk of [X] being exposed to overt acts of family violence if a future paternal partner sought to end/ depart relationship with the father. This would create risk of acute distress, fear and traumatic experience in [X].607.If a future partner remains within the relationship, there is risk of [X] being exposed to what I have termed the pragmatic, self-referential, unempathic and disrespectful paternal approach to partner relationship, and to the attitudes and behaviours typical of family violence perpetrators, listed above. This would create risk of cumulative relational and developmental harm to [X] during the key developmental phases of late childhood and adolescence, in terms of aberrant modelling to [X] of patterns of relating, in particular patterns of relating within a partner relationship.608.In my view, the risk of exposure to family violence within a future maternal partner relationship is low.…Risk of emotional or physical abuse or of neglect in the father’s care.610.This risk is significant, in terms of the risks linked to exposure to family violence in a future paternal partner/ marriage relationship.611.There are risks of neglect and of emotional abuse linked to the father’s deficits in parenting capacity, as discussed below under the heading of the children’s relationship with the father.