Gazal and Belros - [2013] FCCA 1268

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAZAL & BELROS

[2013] FCCA 1268

Catchwords:
FAMILY LAW – Father’s application to spend time with children following psychiatric assessment – assessment not helpful to father – continuing concerns of likely violence by father – father’s time reserved.

Legislation:
Family Law Act 1975

Federal Circuit Court Act 1999, s.17A

Rana v Deakin University [2012] FMCA 575

Applicant:

MR GAZAL

Respondent:

MS BELROS

File Number:

MLC 10089 of 2010

Judgment of:

Judge Burchardt

Hearing date:

22 August 2013

Date of Last Submission:

22 August 2013

Delivered at:

Melbourne

Delivered on:

22 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr McMonnies

Solicitors for the Applicant:

Allan McMonnies

Counsel for the Respondent:

Mr McConchie

Solicitors for the Respondent:

Buller McLeod Pty

Counsel for the Independent Children’s Lawyer:

Mr Chila

Solicitors for the Independent Children’s Lawyer:

Westminster Lawyers Pty Ltd

ORDERS

Orders 4, 5 and 6 of the Orders made on 9 December 2011, as amended pursuant to the slip rule, be discharged.
Orders 1, 2 and 3 of the Orders made on 9 December 2011, as amended pursuant to the slip rule, remain in full force and effect.
Any other extant orders, other than Orders 1, 2 and 3 of the Orders made on 8 January 2007 (the Watch List orders), which are preserved by Order 2 above, be discharged.
All extant applications be otherwise dismissed.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 10089 of 2010

MR GAZAL

Applicant

And

MS BELROS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This litigation started on 27 October 2010 with the father’s Initiating Application. He sought that his children live with the mother and spend time with him. At that time, the mother’s whereabouts were not known, and this created the usual difficulties for the commencement of proceedings. I will pass over the various, and indeed numerous, interim hearings that took place. By trial in October 2011, the father wanted the children to live with him or alternatively spend equal time on a week-about arrangement with each parent.
This was his position, even though on any view the children had lived with the mother full-time since final separation in 2010. Additionally, X, born on (omitted) 1993, and therefore over 18; Y, born on (omitted) 1994 and now over 18, but not so at trial, those two children did not want to see him; and W, born on (omitted) 1999 was equivocal at best. A family report was prepared by Dr M and released on 19 September 2011. Dr M found the father aggressive…

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.

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Details

Case: [2013] FCCA 1268
Decision Date

CaseChat Overview and Summary

In *Gazal & Belros* [2013] FCCA 1268, the Federal Circuit Court of Australia considered an application by the father (Mr Gazal) for his time with his children to commence, following a psychiatric assessment. The mother (Ms Belros) opposed the application. The Independent Children’s Lawyer also made submissions regarding the father's contact with the children.

The central legal issue before the Court was whether the father should be permitted to spend time with his children, given the history of the proceedings, the findings of previous judgments, and the outcome of a recent psychiatric assessment. This required the Court to determine if the father's circumstances had changed sufficiently to warrant contact, and if so, on what terms, always with the paramount consideration being the best interests of the children.

The Court's reasoning was heavily informed by its previous judgment of 9 December 2011, in which it found the father to be an unsatisfactory witness and accepted the mother's evidence and the findings of a family report by Dr M. This report detailed allegations of family violence, controlling and domineering behaviour by the father, and significant fears expressed by the children towards him. The Court had previously ordered a psychiatric assessment of the father, noting serious concerns about his mental health and lack of insight. The recent psychiatric assessment by Dr D, while finding the father did not present with a mental disorder and was jovial, also noted his denial of all allegations of abuse and violence, his lack of insight, and the significant inconsistency between his self-report and the findings in the Family Report. Dr D also noted that if the allegations of abusive behaviour were validated, the father would be a poor candidate for intervention. The Court found that the father's continued denial of violence, coupled with the previous findings of validated violence and his poor prognosis for intervention, meant that his time with the children should not recommence.

Consequently, the Court ordered that certain previous orders, which had discharged the father's time with the children, remain in full force and effect. Other extant orders, save for specific preserved orders, were discharged, and all other extant applications were dismissed. The Court noted that the father's psychiatric assessment had not been helpful to him and that continuing concerns about likely violence by the father meant his time with the children was reserved.

Orders