GAZAL & BELROS
[2011] FMCAfam 1282
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAZAL & BELROS | [2011] FMCAfam 1282 |
| FAMILY LAW – Parenting dispute – lengthy relationship – five children – eldest three expressing strong views – long history of domestic violence – serious questions as to father’s psychiatric testing. |
| Family Law Act 1975, ss.60B, 60CC |
| Goode v Goode [2006] famCA 1346 |
| Applicant: | MR GAZAL |
| Respondent: | MS BELROS |
| File Number: | MLC 10089 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 13, 14 & 24 October 2011 |
| Date of Last Submission: | 24 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr McLeod (on 13 & 14 October 2011) The Applicant in person on 24 October 2011 |
| Solicitors for the Applicant: | Altona Legal |
| Counsel for the Respondent: | Mr McConchie |
| Solicitors for the Respondent: | Buller McLeod Pty. |
| Counsel for the Independent Children’s Lawyer: | Mr Hannan |
| Solicitors for the Independent Children’s Lawyer: | Westminster Lawyers Pty Ltd |
ORDERS
All previous Orders be discharged save for paragraphs 1, 2 and 3 of the Orders made 8 January 2007.
The parties have equal shared parental responsibility for the children, [V] born [in] 1994, [W] born [in] 1999, [X] born [in] 2003, [Y] born [in] 2005 and [Z] born [in] 2010.
The children live with the mother.
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.
Upon 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 3.00pm Christmas Eve to 3.00pm Christmas Day in each odd numbered year.
(c)From 3.00pm Christmas Day to 3.00 pm Boxing Day in each even numbered year.
(d)For four hours on each of the children’s birthdays.
The children communicate with the parties by telephone at all reasonable times.
The parties be restrained from removing the children from the state of Victoria without prior written consent by the other party for any period longer than two weeks.
The father be permitted to liaise directly with the children’s school to obtain any information in relation to the children’s progress.
The parties keep each other informed of any major medical conditions of the children.
AND THE COURT NOTES THAT:
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 Gazal & Belros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10089 of 2010
| MR GAZAL |
Applicant
And
| MS BELROS |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute about the best interests of five children aged from 17 down to 20 months. There is also another elder child, [U], born [in] 1993, who is relevant to the history of the matter.
The applicant father wants the five children to live with him or in the alternative, to live on a shared-care week-about arrangement with their mother.
The Independent Children’s Lawyer and the mother both seek orders that would require the father to undertake a psychiatric assessment with a psychiatrist nominated by the Independent Children’s Lawyer, and that time be reserved until and unless that is completed.
For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer and the mother.
The Facts
The father was born [in] 1963 and is from South Sudan. He is presently engaged in a course of study as a student. The mother was born [in] 1975 and is of Egyptian origin. She speaks only the most limited English, and is illiterate. She married at the age of 16. The marriage took place [in] 1991. The three eldest children of the relationship, [U], to whom reference has already been made, [V] born [in] 1994 and [W] born [in] 1999 were all born in Egypt.
The parties came to Australia on 14 January 2002 and divorced at the mother’s instigation in late 2004.
Although the dates are by no means clear, it is common cause that the mother had on at least four if not five occasions according to her, both in Egypt and in Australia, effectively decamped from the father without notice with those of the children then in her care. It was her case that she did this as a result of the father’s alcohol abuse and violence towards both her and the children.
The father’s evidence was that allegations of drinking on his part were exaggerated. He flatly denied any family violence. I will return to this aspect of the evidence later.
There has been a history of apprehended violence orders, although it was the father’s case that although two such orders had been taken out, they had both been withdrawn by the mother.
It appears that from time to time the father has engaged the assistance of the South Sudanese community to help in the interpersonal disputation between him and the mother. He exhibited correspondence from members of that community. The authors were not called to give evidence, but I note that the terms of the correspondence appear to be strongly supportive of the father. One might reasonably infer from the terms of the correspondence that such intervention as there has been in the past, and/or might be in the future, would be strongly supportive of the father and much less so of the mother.
In the ultimate, the parties separated in May 2010 when the mother disappeared with all of the children. The case came to Court on the father’s application to try to find her. It is clear from the accounts given by both parents that in the past the father has always otherwise been able to find the mother on the occasions when she decamped.
It should be noted that it is also common cause that the mother went on two relatively extensive visits to Egypt in 2007 to early 2008 leaving the children behind in Tasmania. At some point in Tasmania, [V] became pregnant and had an abortion. It is not entirely clear whether this was rape or consensual under-age sex with her then boyfriend. The father says that this rape would not have occurred but for the mother’s failure properly to look after the children. Indeed he posited the proposition that all difficulties the children have experienced (and it is clear they have had their troubles) have been as a result of the mother’s incapacity as a parent.
The evidence given by the father
The father adopted his affidavits and expanded his evidence somewhat in evidence-in-chief. He was highly critical of the family report writer, Ms M.. He accused her of lying in a number of ways. He did, however, confirm that he has only seen the children once, at Court on the occasion of a section 11F report, since separation in May 2010.
It should be interposed that that report, which took place on 29 April 2011, was relatively favourable to the father, and in broad terms recommended that the children, and in particular the younger children, be reintroduced to their father.
Under cross-examination the father denied altogether hitting his children. He said he had threatened to hit them with a cord, but did not do so. He said that “I absolutely do control my wife”, although he qualified that remark by asserting that he meant that he looked after her. As I have said, the father said the children’s difficulties were wholly referable to the mother. He complained that he had not wanted to be divorced, which had been forced on him by the mother.
Under cross-examination he made an assertion not in his affidavit material that far from forcing himself on the mother, he had done so on one occasion as she had threatened him with not seeing the children if he failed to have sex with her.
He complained that Ms M. had not allowed him to tape-record the interview with him. He said that he was “fighting to get my children and my wife back”. Although he agreed to undertake an anger management course, he was quite unable to explain why he had not completed such a course when ordered to do so a considerable time ago by the Court. Indeed, at one point he refused to answer questions about this matter from counsel for the Independent Children’s Lawyer.
He said that he did not know where the mother was living, and complained about women friends of the mother who had, as he saw it, inappropriately advised her. It was clear from what he said and the way he said it that he regarded this advice as being excessively feminist, so to speak (this being my word not his). He said it was the mother and not him who should see a psychiatrist.
I should say at this point that the father’s evidence was unsatisfactory. He often answered questions unresponsively. He appeared to make things up, at least in one instance, on the run. As I have indicated, on one occasion he flatly refused to answer a perfectly proper question put to him by counsel for the Independent Children’s Lawyer. His demeanour and attitude were entirely consistent with the assertions made by Ms M. to the effect that he is aggressive and overbearing.
I have no doubt that he wishes the mother to return to him and to continue the relatively subordinate sort of relationship that he would regard as desirable.
I should however say that I fully accept the father’s assertion that he has ceased drinking alcohol since about October 2008 and that he has also given up smoking.
The father’s cousins, Mr D. and Mr B., together with his aunt, Ms G., were called to give evidence. I do not propose to deal with their evidence in any detail. It was of extremely limited scope. It is sufficient to say that in addition to the likely partiality that they would feel as close relatives of the father, the amount of time that they had actually spent with him and his children and/or the mother was so limited that their evidence is really of very little significance.
The evidence of the mother
The mother gave evidence through an interpreter. As indicated, her command of English is extremely limited. Notwithstanding this, however, I formed a very clear impression that she was genuinely trying to tell the truth. She was strongly pressed as to why she had not been able to enrol at GordonCare as previously ordered. I accept that an interpreter was not available for her and I also note that the father failed to offer to pay for it. Indeed, he was adamant that since he had not been ordered to pay for the interpreter for the mother by the Court, he would simply refuse to do so.
Thus, although supervised time was posited, it has not occurred.
It is sufficient in my view to say that Ms Belros stuck by her story. She confirmed the long history of family violence, both upon herself and the children. She was quite unmoved despite skilful cross-examination by counsel for the father. It is, in the circumstances, I think sufficient to say that I believe her evidence where it contradicts that of the father. I note that she said she still loves the father, but she is scared for her children.
The family report and the evidence of Ms M.
Ms M. produced a family report dated 12 September 2011. She recorded the issues in dispute and noted the histories given by both the parents. I note that Ms M., in addition to describing the father as aggressive and overbearing, noted that he belittled his former wife, referring to her as “the person” and refusing to use her name.
Perhaps the most significant aspects of Ms M.’s report were her interviews with the children. [U], albeit not a party to the proceedings, spoke with Ms M., as did the other children. The elder three children, all girls, effectively confirmed the mother’s allegations of domestic violence, both against the mother and in some instances, against the children. [U] and [V] described very uncomfortable feelings arising from an incident with the father in which the father discussed in explicit terms a friend of his own who had had a sexual relationship with his daughter.
[X] and [Y] were more mixed in their views. I note that [X] volunteered getting really scared when his father gets angry and [Y] recalled his father hitting his brother. [Z] was too young for any meaningful revelations.
Ms M.’s evaluation at paragraphs 36 to 38 essentially sets out, as one would expect in the circumstances, the mother’s and children’s difficulties with the father. Ms M. went on to recommend sole parental responsibility to the mother, a number of ancillary measures designed to assist the mother and the children and critically, recommended that the father be referred to a psychiatrist to assess his capacity to spend time with those children wishing to do so.
Ms M. recommended that the children spend no time with the father until completion of the psychiatric assessment and further review by the Court.
It is readily apparent that that is a very different set of recommendations to those produced by the section 11F report of
Ms C..
Ms M. was, however, cross-examined (unlike Ms C.). It is sufficient in my view to say that she stuck firmly by her own report. Under cross-examination by Mr Gazal (who by this stage was representing himself), she confirmed that she had not seen Ms C.’s report at the time she wrote her own report, but had seen it since. She nonetheless stood by her recommendations.
Ms M. was an impressive witness, giving evidence within her area of speciality. She was not moved at all by cross-examination. I accept her evidence.
At this point, it is possible to move to the statutory pathway indicated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65].
Joint parental responsibility
Here it is sufficient to say that I accept the submission of the Independent Children’s Lawyer that the presumption of shared parental responsibility is rebutted. Not only is it clear there has been an extensive history of family violence, but the fact is that Ms Belros has had de facto sole parental responsibility for a considerable period of time.
Notwithstanding this rebuttal, I will consider the question of equal time because that is the alternative position contended for by the father. In my view it is immediately obvious, given the fear of the father expressed particularly by the three older children (albeit that the eldest is not part of this application) together with the very concerning fears expressed by [X] and [Y], that it is wholly inappropriate that there be equal time. The father did not really articulate how, in any event, he would be able to accommodate the children for any amount of time, let alone a week-about arrangement.
The same remarks in my view dispose, albeit briefly, of the proposition that the children spend substantial and significant time with him. The fact is that there is no suggestion that it is immediately practicable, and it flies wholly in the face of the children’s expressed views, and the matters revealed by the family report.
This brings the Court to determining the issue of spending time, in the light of the consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC of the Family Law Act 1975 (“the Act”). In the circumstances of the case, it is sufficient to say, in respect of s.60B, that I have had proper regard to its terms.
Section 60CC(2)
In view of the fact that I wholly accept Ms M.’s report, including the revelations made in it, it is immediately apparent that there has been extensive family violence. It is also necessary, in the light of the matters revealed by that report, to protect the children from the risk of abuse, both psychiatric and physical. The father has no insight as to his past conduct, and indeed denies it in terms. I have no doubt whatsoever that his denials are false, although I am not able to say whether or not he himself knows that. He may well believe his own story, but I do not.
Section 60CC(3)(a) – the views of the children
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.
Section 60CC(3)(b) – the nature of the relationship of the children with their parents and other persons
Here again the position seems all too regrettably clear. All of the children have a secure and loving relationship with their mother, who has been their primary carer since birth. Their relationships with their father are as I have already described them. Although Ms G., the paternal aunt, expressed what I took to be a sincere desire to see the children, all the evidence suggests that the children have very few other significant family contacts.
Section 60CC(3)(c) – the willingness of the parents to facilitate a relationship with the other
I accept the mother’s evidence that she still wishes the children to have a relationship with their father, but will only facilitate this in the event that she is sure it is safe. The father’s position by way of contrast is marked by his criticisms of the mother to Ms M. and the fact that those criticisms were repeated in Court. It is clear that the father regards the mother in large part with a feeling of contempt based upon her relative lack of education and no doubt other matters also.
I would very much doubt whether he would foment a relationship between the children and the mother although, curiously enough, it is clear that he wants her back in his house as his wife. Were this the case, self-evidently a relationship would be continued.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances
If the children were to be taken from their mother, with whom they have been living without interruption since May 2010, there is every chance that the separation would be traumatic for them. The elder children do not wish to be with their father and the youngest ones do not appear to have spent any time away from their mother. Separation from the father does of course deprive them of the opportunity of an ongoing and meaningful relationship with him but, as will be clear, unfortunately at this stage that appears to be in their best interests.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent
Here there a number of surprising practical difficulties. Despite the Court having made orders which would facilitate time with the father, his own failure to pay for the mother to attend at GordonCare has prevented this occurring. The father is not, it would appear, at all well off and there may well be significant practical issues in relation to supervised time as and when that may occur.
The capacity of the children’s parents to provide for the needs of the children
The mother is well-able to look after the children. She has done so all their lives. They all have a warm relationship with her. The father’s gross lack of insight strongly suggests that he had very little, if any, capacity to care for the needs of his children. Notwithstanding that, I have no doubt that he does love them very dearly. He has, however, not looked after them in any way at all since separation in May 2010 and his involvement in their lives before that was from time to time marked by intermittent absence. When he was with the children, his behaviour was often marked by extremely poor behaviour. He did not, after all, give up the consumption of alcohol until October 2008. His excessive consumption of it must have affected his capacity to look after the children.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the children and of their parents
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.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents
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.
Section 60CC(3)(j) – family violence
There has been all too much family violence, but I have already dealt with this.
Section 60CC(3)(k) – family violence order that applies to a child or another member of the family
This is not really relevant at this stage. It appears there may be an extant intervention order. Whether that is so or not is not significant given that it is so clear that family violence on a major scale has occurred.
Section 60CC(3)(l) – finality of proceedings
The orders I propose to make are the best the Court can do to bring this matter towards a conclusion. That is so even though the orders sought by the Independent Children’s Lawyer plainly have the capacity to give rise to further proceedings if and when the father undertakes the posited psychiatric assessment.
Section 60CC(3)(m) – any other relevant matter
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, Ms M. has recommended psychiatric assessment and as I have indicated, I have accepted that recommendation.
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.
Conclusion
This is a most unfortunate case. The father has already told Ms M. that he feels that 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.
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.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 9 December 2011
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