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: 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 and overbearing. The report recorded revelations of family violence by all four older children, X, Y, W and a boy, Z, born (omitted) 2003.
There are major factual disputes in the case. The most significant dispute, in my view, was whether the father had indeed been violent, as the mother and the children said he had. He completely denied all such allegations. It suffices to say that I noted in my judgment that the father was extremely critical of Dr M. He accused her of lying. That is at paragraph 13 of my judgment dated 9 December 2011. I found the father an unsatisfactory witness, (paragraph 19). I found the mother a good witness and believed her where her evidence contradicted that of the father, (paragraphs 23 and 25).
I accepted Dr M’s evidence, including the accounts of violence given by the children, (paragraph 33). Nonetheless, I wish to read some paragraphs of my Reasons for Judgment. At paragraph 40, I said:
“Here, it is noteworthy that all the older children do not want to see their father, and have said so in plain and unequivocal terms. The younger ones are more equivocal, but even in their case have expressed concerns and fears of the father when he loses his temper. Having seen him in Court over a number of days, I have no doubt he is well capable of losing his temper and that he would indeed be terrifying if he did so.”
At paragraph 47, I said:
“In the context of my earlier findings about the children’s views, I do not think that this subsection adds much in the circumstances of this case. Some of the children are old enough to express clear views about their father, and have done so. Regrettably, the father’s lack of insight and domineering and aggressive personality are factors that militate against the orders he seeks.”
At paragraph 49, I said:
“Once again, this matter has already in large part been dealt with. The mother has done her best in what must have been extremely trying circumstances. The father’s behaviour up until 2008 left everything to be desired both in terms of his substance abuse and violent and domineering behaviour. His attitude towards the responsibilities of parenthood has been extremely poor.”
At paragraph 50, I said:
“There has been all too much family violence, but I have already dealt with this.”
At paragraph 53, I said:
“Here, the relevant other matter is the Independent Children’s Lawyer’s submission that the father ought to be required to undertake psychiatric assessment before any time is spent with the children. Such assessment is readily available. I have no doubt whatever that such an order is in the children’s best interests. The materials disclosed to the report writer, and the evidence given to the Court, leave me in no doubt whatsoever that there are very serious and proper concerns about the father’s mental health. His demeanour in Court was at times strikingly unusual. What he said is recorded in the transcript and some of his remarks were, frankly, extremely strange. In the ultimate, Dr M has recommended psychiatric assessment and as I have indicated, I have accepted that recommendation.”
I went on to say at paragraph 54:
“It is a measure of the father’s gross lack of insight that his primary position is that the children live with him and he only seeks a shared equal time arrangement as a secondary position. In the face of the history of the children’s living arrangements throughout their lives, this application in itself speaks volumes.”
I went on to say at paragraphs 55 to 56, under the heading “Conclusion”:
“55. This is a most unfortunate case. The father has already told Dr M that he feels he has been prejudiced by what he has described as “the system”. No doubt he will see this judgment as further mistreatment by the system.
56. Nonetheless, the evidence in this case is really overwhelming. The disclosures made by the children which so fully support the mother’s own case, taken with the demeanour in particular of the father when giving evidence in Court and indeed in making his submissions, lead overwhelmingly to the conclusion that the best interests of the children will be served by making the orders sought by the Independent Children’s Lawyer.”
At this point, it is important to turn to those aspects of Dr M’s report dated 12 September 2011 which grounded the observations that to which I refer. At paragraphs 37 to 39, Dr M’s report reads as follows:
“37. A number of factors need to be considered with regards to any Parenting Order with a background of domestic violence. Mr Gazal’s presentation during the session was characterised by a high degree of emotional instability. His controlling manner, lack of insight and disregard for authority raises concerns about the predictability of his behaviour when with the children. The allegations of domestic violence by the Mother and children are contradictory to his denial of the violence. If these allegations are founded, it raises serious concerns about his capacity to engage in a relationship with his children that attends to their best interests. According to the Mother’s and children’s accounts the violence committed was not a single event but was characterised by a pattern of controlling and domineering behaviour. The potency of the violence was severe and dangerous with allegations of death threats, holding the family hostage and unrelenting acts of violence towards the Mother and children. The Father’s stalking behaviour has been persistent and by his own admission has continued since the final separation as he claims to know the family’s current residence despite the Mother keeping her whereabouts unknown.
38. The children conveyed consistent accounts of their Father’s diminished capacity to parent which was characterised by his absence in their relationship and by his abusive behaviour. Each child separately recalled experiences of physical and emotional abuse. In addition, the girls provided individual accounts of being subjected to highly inappropriate sexual discussions that made them each feel violated, and their concerns extended to fears of the likelihood of him sexually abusing them. Their feelings associated with their disclosures were consistent with children who had experienced significant trauma. The girls’ emotional responses were ones of fear and intimidation and were adamant that they did not want any contact with their Father. Z and U wavered in their emotional response, fearful of their Father’s behaviour yet hopeful of potential change. This ambivalence is reflective of their emotional trauma, grappling with the hope of a positive father figure and the harm inflicted by the abusive parent.
Recommendations
39. According to the family’s disclosures, the dynamics of domestic violence in this family were highly volatile and dangerous and the Mother needs to be supported in her endeavours to protect the children from future harm. The children too need support and counselling due to their exposure to the domestic violence and their own abuse issues. The seriousness of the domestic violence requires the highest protective mechanism such as a thorough psychiatric assessment of the Father, before any consideration be given to future contact.”
Interim orders were refined by 9 December 2011. I will read orders 2, 3, 4, 5 and 6:
“(2) The parties have equal shared parental responsibility for the children, Y born (omitted) 1994, W born (omitted) 1999, Z born (omitted) 2003, U born (omitted) 2005 and V born (omitted) 2010.
(3) The children live with the mother.
(4) The father undertake a psychiatric assessment by a psychiatrist nominated by the Independent Children’s Lawyer and the psychiatrist cause a copy of the report arising from such assessment to be provided forthwith upon completion to the Independent Children’s Lawyer and to the parties.
(5) On completion of the assessment and report referred to in Order 4 the children spend time with the father as may be agreed and failing agreement as follows:
(a) Each alternate weekend from after school Friday to before school Monday (or until 5.00 pm Sunday).
(b) From 3.00 pm Christmas Eve to 3.00 pm Christmas Day in each odd numbered year.
(c) From 3.00 pm Christmas Day to 3.00 pm Boxing Day in each even numbered year.
(d) For four hours on each children’s birthdays.
(6) The children communicate with the parties by telephone at all reasonable times.”
That order was, itself, the subject of further refinement, and a final order was made on 22 December 2011. I will read orders 2, 3 and 4:
“(2) Leave be granted to the Respondent to release the Family Report to Dr C.
(3) Liberty to apply be granted to enable any party to apply for the matter to be listed for mention as indicated in order 5 of the orders made on 9 December 2011.
(4) Otherwise all extant applications be dismissed.”
In fact, nothing thereafter happened until 20 July 2012, when the father filed an Application. The orders sought in that Application are as follows:
“1. That it be ordered that as the father has had the psychiatric assessment that his time with the children in accordance with the orders made 9.12.2011 commence after the making of this order.”
An interim order was sought that the matter be listed for mention pursuant to the liberty to apply, to which I have referred. The affidavit of the father filed in support of this Initiating Application shows that he had seen a Dr I, who had not been nominated by the Independent Children’s Lawyer. Dr I’s report is manifestly inadequate on its face. It is based solely on the father’s account of events and the father in that account had denied all abuse and violence. The father presumably did not tell Dr I that the Court had found that abuse had occurred. The father is clearly in denial. The mother opposed the application.
Further orders were made on 17 September 2012, which put the psychiatric assessment by an Independent Children’s Lawyer nominated psychiatrist, so to speak, back on track. There have been delays, and on 25 February 2013 his Honour Federal Magistrate Turner, as his Honour then was, made various orders. I will read out orders 1 and 2:
“1. The father’s application for his upcoming psychiatric assessment to be filmed is dismissed.
2. The father’s application to spend time with the children –
and their names are set out –
prior to the adjourned date is dismissed.
There have been various adjournments, but the Court now has the report of Dr D, dated 13 August 2013, and I refer to all of that document, although I do not read all of it out. There are some extracts, however, which I will read out:
“Mr Gazal failed to attend a scheduled appointment on 28 February 2013. He attended on 20 June 2013. He understood the nature and purpose of the assessment, the limits of confidentiality, and that a report would be forwarded for court purposes.”
Under the heading “Mental State Assessment”, Dr D recorded:
“Mr Gazal elected to speak English rather than utilise the interpreter for most of the assessment. He spoke clearly and coherently. He promptly engaged in a friendly and jovial manner. His interpersonal style was mildly odd, but not characteristic of a mental condition. He elected to hold a cross throughout the assessment, consistent with his (religion omitted) faith. He did not display any aggressive qualities, as noted in the Family Report. His thoughts were communicated in normal form. He did not present with features of a mental disorder. He denied all allegations raised in the Family Report that blemished his character. He universally denied all wrongdoing. He provided a brief and vague theory for Ms Belros electing to separate from him. He proffered that Ms Belros had been advised to separate by her (omitted) community friends.”
The report went on, on the same page:
“… He is the father of six children, aged 20, 19, 14, 11, 8 and 3. He has not had any contact with the children since 2010. He has observed the children at their school, but he stands 200m away as he is not allowed to enter the schoolgrounds. He has also observed the children attend church, but they have not noted his presence. He avoided being noticed, as he was certain his sons would run to him. He did not want to engage in conduct that jeopardised future contact.”
At the bottom of the page the report continues:
“Mr Gazal did not have any relationships prior to meeting Ms Belros. They met in (country omitted) when he was aged 21 and she 16. Ms Belros is (country omitted). They met at a (omitted) Church. They engaged after a year and soon married. Mr Gazal said he ran his life as the bible stated. He was in love with Ms Belros and he noted that he remained in love, as “love never dies”. He considered the marriage to be very good. Whilst there was occasional conflict, it was limited to some “yelling and screaming”, but no physical violence. He vaguely referred to a single incident in (country omitted) when they “jokingly” pushed each other in response to one of their daughters annoying them. He said he accidentally smacked his daughter, but soon apologised. He said they did not plan the number of children they eventually had, as it was “God’s plan”.
Mr Gazal said problems arose in Australia, as his wife was advised by “people” to separate from him. He vaguely referred to them experiencing difficulties adjusting to living in Australia. He vaguely admitted to drinking more alcohol, with the result being Ms Belros complaining. He conceded they argued more when he drank.”
Continuing on further down the page:
“Mr Gazal said he loved his children and they loved him. He denied having any problems with his children. Mr Gazal’s explanation for Ms Belros refusing to allow him to have contact with the children was that the children would want to stay with him if they had a choice.
Mr Gazal denied a formal psychiatric history. He denied a history suggestive of a mental disorder. He considered himself to be a “calm, controlled and quiet” person. He said he had not been treated for mental problems.”
Further on down the page in response to elements from Dr M’s report, Dr D records:
“… He denied abusing the children, including sexual abuse. He reported that the children had made false allegations. He theorised that Ms Belros was “advised” to separate in order to remain in the (country omitted) society.”
On the final page Dr D records:
“Mr Gazal reported having a happy and satisfying marriage to Ms Belros. However, this did not appear to correlate with Ms Belros electing to separate on four separate occasions. He vaguely referred to drinking excessively for a period, perhaps contributing to an escalation of verbal arguments, but he denied a pattern of drinking suggestive of frank alcohol abuse or dependence. He denied all allegations relating to domestic violence. He considered himself to be a mild mannered man who had a good relationship with his children. He believed Ms Belros’ decision to separate had been driven by her (country omitted) friends. He therefore professed that all allegations lacked any genuine foundation. I note Mr Gazal provided the same account to Dr I.
Mr Gazal denied a formal psychiatric history. I note he has previously attended Dr I. The basis of the referral to Dr I is unclear, but presumably relates to the current matters. Similar to his report to Dr I, he denied all symptoms suggestive of a mental disorder. He presented as a bright and perhaps incongruently jovial man in this assessment, but this did not correlate with a mental disorder. The allegations contained within the Family Report, including reports from Ms Belros and the children, suggest Mr Gazal has significant personality psychopathology. The history contained within the Family Report is remarkably inconsistent with Mr Gazal’s self-report. He notably denied a history of being incarcerated and drug use.”
I just interpolate at that point. Those two other matters did not concern the Court in the proceedings. The report continues:
“I cannot conclude that Mr Gazal has a mental disorder based on this assessment. There are obvious reasons for concern based on the Family Report. In such cases of such gross inconsistency, I have often found it very helpful to assess both parties, even if there have not been suggestions of mental disorder in the alternate partner.
I note that Mr Gazal admitted to observing the children at their school and local church. He is presumably adhering to the boundaries of legal orders, but it is potentially concerning that he is engaging in such behaviour. I note past reference to stalking type behaviour.
If the allegations regarding Mr Gazal’s abusive behaviour are validated, it suggests that he is a poor candidate for intervention. Mr Gazal maybe in denial and lack insight, but he could equally be evasive and insincere.”
The points I would make at this stage are these. First, the father is still denying all violence. Secondly, if violence is validated, the father is held by Dr D to be a poor candidate for intervention. Third, violence is validated. My Judgment said so. The father therefore is a poor candidate for intervention. There is no need for a further psychiatric assessment of Mr Gazal (or Ms Belros, as Dr D suggested) because I have already determined the issues of fact of that violence. Sending the matter back to Dr D is wholly unnecessary.
I turn to the submissions of the parties briefly. The Independent Children’s Lawyer’s counsel suggests the orders should stand as they are; in other words, that the father’s time not recommence. The Independent Children’s Lawyer is concerned about the stalking behaviour continuing, the lack of insight continuing and accordingly recommended no time be spent with the children at the moment. The Independent Children’s Lawyer’s submissions were not wholly clear as to how the Court should best proceed. There was some suggestion of a possible further family report.
Mr McMonnies for the father submitted that the father had complied with order 4 in the 2011 orders and that time should start pursuant to order 6. Mr McConchie for the mother suggested that Dr D’s report took the matter no further in the sense of the children spending time with the father. Mr McMonnies thereafter pointed out both parties are on legal aid and any further proceedings would involve them both being unrepresented. This is not a matter of insignificance. While the father was self-represented during the trial at least for part of the time, the mother was not and does not speak English and is illiterate.
I have come to a clear view the Court has the power to dismiss a matter summarily pursuant to s.17A of the Federal Circuit Court Act 1999 (“the FCC Act”). In my view in this instance s.17A(2) is the appropriate section to consider, while I note that for some reason the Act is not before the Court at the moment. In essence that provides that a case may be dismissed by the Court of its own motion in circumstances where a party bringing a case has “no reasonable prospects of success” as that phrase is defined in the legislation.
Section 17A(2) and (3):
“(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.”
It is a less stringent test than that formally exemplified in the General Steel case. I refer to a decision of my own in Rana v Deakin University [2012] FMCA 575 and I will read out the review of the authorities that took place at paragraphs 35 to 37 of that Judgment. I started off by quoting from the judgment of Rares J in a case called Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372 and I said:
“[35] Rares J said at [45], “The character of a judgment under s.31A –
(and I interpolate and say that is the mirror image provision in the Federal Court of Australia Act 1976 to s.17A of this Court’s Act).
is identified by the test which the section prescribes. The judgment is a determination that the proceeding or part of the proceeding “has no reasonable prospect of success”. Thus, when the court gives judgment for a party under s 31A(1) or (2) it is exercising a jurisdiction similar to the implied or inherent power of the court to protect its own processes from proceedings which are an abuse of those processes. By enacting s 31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s 31A that the court need not and does not ordinarily determine the proceedings on their merits after a full trial. A decision under s 31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence: Blair v Curran (1939) 62 CLR 464 at 531–2 per Dixon J. Rather, the power conferred by the section authorises the court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.
[36] Gordon J dealt with the nature of s 31A at [123]–[134] of the judgment. Given the length of that extract, I do not propose to set it out in full but I pay careful regard to, and respectfully adopt, all of the matters to which Her Honour referred. Some matters of particular relevance to this case that I would extract from Her Honour’s observations are:
a) the express words of s 31A impose a different and less stringent test to that described in General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at [129]–[130] (at [124]);
b) s 31A is a provision which permits and assists the court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospects of success (at [125]);
c) the mechanism for assessment of whether a proceeding or part of a proceeding has no reasonable prospect of success will necessarily require attention to the matters set out by Her Honour at [126];
d) each case must be considered separately and there is no particular hard and fast set of rules (at [127]);
e) where there is a real issue of fact relevant to a pleaded cause of action which must be resolved to determine whether the claim succeeds, it is unlikely that that part of the proceedings has no prospect of success (at [130]);
f) by contrast, the existence of a real issue of law does not necessarily preclude a summary judgment (at [131]).
[37] Her Honour has set out five principles which I have (in part) paraphrased above. At [132], Her Honour went on to say however:
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party (Authorities omitted).
I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
Here, there are no disputes relevantly as to the facts. Although the father disputes Dr M’s report, I have accepted it. Dr M’s report in effect says that it is vital for the children’s best interests to get the father psychiatrically cleared before any time is spent with the children. Dr D’s report says that the father is still in complete denial of violence and there is no reason to suggest he will ever change. He has had over one and a half years since the order was made in 2011 to address this issue and has failed to do so.
According to Dr D, he is a poor candidate for intervention. On the materials as a whole that is clearly correct. Even the way the father puts his case is misconceived and concerning. I emphasise this is not criticism of counsel who puts his case on instructions. But the father submits that order 4 of the orders made on 9 December 2011 is satisfied so order 6 applies, but he ignores orders 5 and 6 as made on 22 December 2011, which provided for a mention available to the parties after psychiatric assessment and order 6 of the earlier orders was amended to be subject to what occurred at the mention and liberty was granted to apply upon 22 December 2011.
It should be noted that it was never the effect of the orders as finally made that the father’s time commenced automatically after the receipt of the psychiatric report. The clear effect was to have further consideration of the matter in the light of the contents of the report. This lack of insight and understanding on the father’s part is wholly consistent with his past history. In summary, it is clear that the father has no reasonable prospects of success. The psychiatric report of Dr D is in the circumstances I have described, namely, where family violence has been made out contrary to the father’s continuing denials wholly unhelpful to him.
It is clearly not in the children’s best interests to spend time with him as a result of the concerns raised by Dr M and the matters identified in my earlier decision. It is not in the public interest to divert more Court time and public funds whether in legal aid or through the appointment of the Independent Children’s Lawyer where the father has no reasonable prospects of success.
It is on any view a heart wrenching decision to reach. The father undoubtedly loves his children. But it is clear, nonetheless, that this is the appropriate outcome.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 9 September 2013
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