HEWITT & TESSIER

[2013] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWITT & TESSIER [2013] FCCA 1830

Catchwords:
FAMILY LAW – Parenting – parental responsibility – whether child should spent time and communicate with father – allegations of serious and persistent family violence – expert evidence mother has symptoms consistent with post-traumatic stress disorder as result of father’s family violence – effect on child of not knowing father – effect on child directly and through effect on mother of child spending time or communicating with father – sole parental responsibility to mother – father not to spend time or communicate with child.

Legislation:  

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant: MR HEWITT

Respondent: MS TESSIER

File Number: PAC 164 of 2011

Judgment of: Judge Halligan

Hearing dates: 30 September 2013, 1, 2 & 3 October 2013

Date of Last Submission: 2 October 2013

Delivered at: Parramatta

Delivered on: 2 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Khan

Solicitors for the Applicant: Birchgrove Legal

Counsel for the Respondent: Ms Druitt

Solicitors for the Respondent: Gowland Legal

Counsel for the Independent Children’s Lawyer: Ms De Vere

Solicitors for the Independent Children’s Lawyer: Stanfords Solicitors

ORDERS

1. The orders made herein on 21 September 2010 are discharged.

2. The mother shall have sole parental responsibility for the child,

   
   

   [X], born [in] 2008.

3. The child shall live with the mother.

4. The father shall not spend time or communicate with the child.

5. The father is restrained from removing or attempting to remove the child, [X], a female, born [in] 2008, from the Commonwealth of Australia.

6. The Australian Federal Police shall place the child’s name on the Watchlist, in force at all points of international arrival and departure in Australia, and shall maintain the child’s name on the Watchlist until the expiration of three years from the date of these orders.

7. Costs application of the mother and the Independent children’s lawyer are adjourned to 10am on 3 October 2013.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 164 of 2011

MR HEWITT

Applicant

And

MS TESSIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are contested proceedings under the Family Law Act 1975 concerning the parenting arrangements for the child, [X], born [in] 2008.  She is therefore now aged five.  She is the child of the parties.

2. The father seeks orders that some of the orders made on

   
   

   21 September 2010 in his absence in relation to the child be discharged but others remain in place, and he seeks new orders in place of those he asks be discharged.

3. He seeks the discharge of a sole parental responsibility order in the mother’s favour and seeks an equal shared parental responsibility order.  He seeks a discharge of the order that the child live with the mother, and he seeks discharge of an injunction, which has now expired in any event, restraining him from approaching, contacting or telephoning either the mother or the child.

4. He seeks now an order that the child live with the mother, except when living with him, and proposes that the child, as it is expressed in the order, live or spend time with him on an escalating regime as follows-

   a)For the first three months once a fortnight for three hours, supervised at the contact centre in Brisbane.

   b)For the next three months once a week for three hours, supervised at the contact centre in Brisbane.

   c)Thereafter for another three months once a week for a continuous period of five hours, supervised by a person agreed in writing between the parties, or, failing agreement, the father to bear the cost of an approved contracted supervisor.  I do not know what that term means, but on the view that I ultimately take that is irrelevant.

   d)Thereafter for another three months twice a week on days agreed by the parties for five hours each, supervised as for the prior period.

   e)Commencing 12 months after the orders were made every second weekend from 10 am to 5 pm each day of the weekend, in Brisbane, to continue for six months.

   f)Then for the next six months, one weekend per month with the father in Sydney, and the father to have telephone communication on the child’s birthday.  For the purpose of the father’s time in Sydney, the father proposes he bear the costs associated with the child’s travel between Brisbane and Sydney and return.  No mode of travel is proposed.

   g)Thereafter, commencing 24 months after the orders are made, for two weekends per month in Sydney, the father to bear the costs of travel, and in addition, three days each year at the festival Eid al-Fitr.

5. The mother seeks orders, as I understand it, in effect confirming the orders that were made on 21 September 2010, with the exception of a watch list order.  That order was made in September 2010 consequent on and to give effect to an order restraining the father from removing or attempting to remove the child from Australia.  The watch list order has expired, having been made for three years.

6. The position of the Independent Children's Lawyer is to support the orders sought by the mother with one exception.  The Independent Children's Lawyer seeks that the watch list order remain in place.  It having expired, in effect the Independent Children's Lawyer seeks that it be made again.

Background

1. The mother is aged 41.  The father is aged 30.  They commenced cohabitation in Egypt in about October 2007 and married there on [omitted] 2007.  They arrived in Australia in mid-2008, a little over a month before the child’s birth.  The parties finally separated in May 2009.  Their marriage has been dissolved.

2. The orders of 21 September 2010 that I have referred to were made on the application of the mother when there was no appearance by or on behalf of the father.

3. As a result of an incident that occurred at or immediately before final separation, the father was convicted of a number of offences, and he was sentenced to 11 months in prison, of which he was to serve, as I understand it, eight months, after which time he could be released on parole.  As I understand it, one of the offences for which he was convicted at that time was assault occasioning actual bodily harm on the mother and another was breaching an apprehended violence order (AVO).

4. The AVO’s in New South Wales have since expired.  There is, however, a protection order in force in Queensland.  It was made on 21 August this year.  It continues in force until 21 August 2018, and it contains a wide range of prohibitions, including prohibiting the father from-

   a)from entering or attempting to enter the premises where the mother lives or works or approaching within 100 metres of the premises;

   b)from locating, attempting to locate or asking someone else to locate the mother;

   c)from contacting or attempting to contact or asking someone else to contact the mother, except to the extent necessary for the father to appear personally before a court or tribunal.

5. Similar provisions are made for the protection of the child as well, including restraining the father from-

   a)contacting or attempting to contact or asking someone else to contact the child;

   b)locating or attempting to locate or asking someone else to locate the child;

   c)following or approaching to within 100 metres of the child;

   d)making telephone calls or sending text messages to the child; and

   e)attending at or going within 100 metres of the school or other premises where the child or the mother attend for the purposes of education or child care.

6. It will readily be seen that a number of the orders the father now seeks are inconsistent with that protection order.

Applicable law

1. These proceedings, being for a parenting order, are governed by Part VII of the Family Law Act. In determining what order to make, the child’s best interests are the paramount consideration (section 60CA). In determining where the child’s best interests lie, the court must have regard to the relevant matters in section 60CC. Those matters are to be assessed having regard to the objects and principles of Part VII set out in section 60B (Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9).

2. When making a parenting order, the court is required to presume that it would be best for the child for the parents to have equal shared parental responsibility, unless the court is satisfied that would not be in the child’s best interests or the court is satisfied that the child has been exposed to abuse, neglect or family violence (section 61DA).  If the court were to make an equal shared parental responsibility order, as the father seeks, the court must follow the path prescribed by section 65DAA, as emphasised by the High Court MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424.

Credit of witnesses

1. Before turning to the relevant considerations and the evidence about them, I need to make some observation about the witnesses and their credit, that is, whether I should believe them.

2. The father was the only witness in his case.  I am not satisfied he is a witness of truth.  In fact, I am satisfied his credit as a witness has been totally destroyed.  He prevaricated and sought to avoid answering questions in cross-examination.  He was argumentative and truculent when challenged on matters not in his interest.  He gave inconsistent statements at different times about his facility in both written and spoken English.  Despite my twice previously pointing out the requirement for an interpreter’s certificate on any affidavit he swore that he needed assistance to understand, once in July 2011 and again in June last year, when the hearing had to be aborted for this very reason, the affidavit in the father’s case does not bear such a certificate.  In fact, there is an affidavit from his own solicitor, which was tendered in the mother’s case, suggesting that the father only very belatedly, days before the hearing was to commence, told them he needed any assistance in reading English documents.

3. There is inconsistent evidence, both from him and otherwise, as to whether either he read himself or read with the assistance of a friend or read with the assistance of an interpreter the wife’s affidavit in these proceedings.  As the transcript of 5 June 2012 – incorrectly noted on the transcript as 2013 – shows, when there was an interpreter present to assist the father, as there has been at all times during this hearing, I impressed upon the father the need to make sure, whether he had a lawyer or not, that he made sure that he had read with such assistance as he required and clearly understood the content of all the documents, not only in his case but in the mother’s case.

4. The father in his affidavit at paragraphs 8 and 9 specifically refers to the mother’s affidavit.  In fact, when he entered the witness box he corrected the date given for that affidavit in paragraphs 8 and 9 of his affidavit from 13 September to 9 September 2013.  He sought to deny or put in issue to some extent parts of that affidavit, and yet he seemed to suggest that he had never read the mother’s affidavit at one point in cross-examination.

5. I am satisfied that the father provided false information - and knowingly did so - to the Department of Immigration in connection with his citizenship application, which, coincidentally, was rejected.  I do not accept as truthful his attempts to avoid responsibility for the content of a letter from solicitors on his behalf in connection with that citizenship application.  His reluctance to acknowledge that they in fact were the solicitors he instructed was quite disingenuous, and was merely one example of his frequent prevarication and avoidance of questions and clearly calls his credit into question.

6. Further, faced with very serious allegations in the mother’s evidence of consistent, persistent and serious physical abuse, including sexual assault, the father’s denials were vague and non-specific, particularly when they appear in a paragraph, the first sentence of which states “My violence towards [Ms Tessier] included both physical and verbal abuse”.  Nowhere did the father admit or specify any physical abuse of the mother in his evidence-in-chief, nor did he admit or specify any incident of verbal abuse.

7. His assertions of regret and remorse for non-specified actions is contradicted by his statements to Mr W, a witness in the mother’s case whose credit was not in any way challenged, and whose evidence I accept.  And they are further challenged by the assertions made by the solicitors who made representations on his behalf to the Immigration Department in connection with his citizenship application or permanent residency application – which it was the evidence does not make entirely clear.  In the circumstances, I am not satisfied that the father has any genuine regret or remorse at all.

8. I am satisfied that the father’s credit is so lacking that I should not accept any of his evidence that might be in his favour, unless the fact is admitted by the mother or is otherwise satisfactorily corroborated.

9. The wife was not successfully challenged as to her credit in cross-examination.  I accept her as a witness of truth, and I accept all her evidence.  In particular, I accept the truth of the assertions in the mother’s affidavit that the father sought to dispute in his affidavit.

10. Finally, there were two additional witnesses in the mother’s case,

    
    

    Ms P, a mental health social worker, and Ms B, a clinical psychologist.  The affidavits of both were permitted to be relied upon by the mother, despite their late filing and despite there being difficulties in relation to the availability for cross-examination of one of those witnesses and the other not being available for cross-examination at all in circumstances where no objection was taken to these affidavits being relied upon in the mother’s case on behalf of the father and where it was indicated it would not be sought to cross-examine either witness.  I therefore accept the evidence of both of those witnesses.

11. To the extent each of them expresses a professional opinion – that is, expert opinion evidence – based upon assertions or information from the mother, I am satisfied that those matters are proven by the mother’s affidavit evidence, which I accept.  I am satisfied that the evidence of both of those expert witnesses therefore warrants being given considerable weight.

Primary considerations under section 60CC(2)

1. And then to the relevant considerations, first under subsection 2 of section 60CC.

2. This matter starkly raises a dichotomy between the two primary considerations.  It is, of course, prima facie a benefit to a child to have a beneficial relationship with both his or her parents.  This child has not seen her father since before her first birthday.  The child over almost the entirety of her life to this point has had no relationship with her father, but I accept the evidence in the mother’s case that she was the victim of serious and persistent physical abuse by the father throughout the entirety of their relationship.

3. I accept her evidence that upon learning that the mother was pregnant and expecting a female child, he sought to repeatedly pressure the mother to have an abortion, and when she repeatedly refused sought to have her injure herself to bring on an abortion.  The assaults by the father have included hitting and choking.  I accept the mother’s evidence that on more than one occasion during these assaults she genuinely and justifiably feared for her life.

4. The fact that the parties separated when the child was so young and that the mother has since then sought to hide from the father has spared the child from any greater exposure to the father’s violence on her mother than the child endured in the early months of the child’s life.  Thankfully for the child, it is unlikely the child would remember any of these assaults, but, as I will come to, they have had a profound and enduring effect upon the child’s mother.

5. For the child to benefit from a meaningful relationship with the father, in my view I need to be satisfied that the father is truly appreciative of the very serious risk of harm to the child from his violence to the mother, not just the psychological scarring but also in the compromising of the capacity of the child’s primary carer, the mother, to meet the child’s needs.  I see no evidence of any such appreciation.  I am satisfied that the father’s expression of regret and remorse are but hollow words.  I am satisfied that he does not mean what he says, and when he belatedly says that he is now consulting a psychologist for unspecified mental health issues and to address issues that he said he had successfully and beneficially already addressed with another psychologist while he was in jail, again reinforces the impression that this is merely hollow rhetoric and window dressing by the father.  That impression is further reinforced where the father has failed to call his current psychologist as a witness in his case and provides no explanation why.

6. I am satisfied that this child does need, on an ongoing basis, to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  I am satisfied that the mother’s expressed fear that she would be at risk of harm by the father seeking retribution, if he discovered her whereabouts, is a well-founded fear.

7. I am prepared to proceed for present purposes on the basis that it would benefit this child at least knowing who her father is, and for that matter that she has a father, and having an opportunity for some sort of a relationship with him.  The mother herself concedes that the lack of knowledge of or relationship with the child’s father creates problems for this child.

8. Again, as I will come to, the mother clearly identifies her appreciation of these issues, and I accept her evidence that she is actively seeking to minimise and mitigate the adverse consequences for this child of having no knowledge of her father at all.

9. I am satisfied that when put against the very significant risk to this child of allowing the father to see the child or communicate with the child by phone, with the attendant risk that he could find out from the child where the mother and child live, raises too great a protective concern for this child, and I am satisfied that the potential harm and risk to this child from allowing time or communication is much greater than the harm to the child of not knowing her father.

10. Additional considerations under section 60CC(3).

11. Dealing with the additional considerations, I have no evidence of any views expressed by the child.  I am satisfied the child has a close and loving relationship with the mother.  The child does not know her father and has no relationship with him.

12. The mother candidly says that her fear of the father is so great and deep-seated that she could not bring herself to make the child available to spend time with the father.

13. I accept the evidence of the two experts that the mother has symptoms consistent with post-traumatic stress disorder arising from the father’s violence to the mother, and that these symptoms have a significant impact on the mother.  They limit her social functioning and interactions, and they must also impact upon her parenting capacity, despite her best endeavours.  But I accept the evidence also that if the Court were to make any of the orders the father seeks that he spend time or communicate with the child, this would have a very significant exacerbating effect upon the mother’s symptoms, and, in turn, would seriously compromise her ability to meet the child’s needs.

1. In the circumstances, I am satisfied that her inability to foster time or a relationship between the child and the father is not only explained, but I am satisfied on the objective evidence, is the appropriate course to promote the child’s best interests.  It is not a point of criticism of the mother, rather I am satisfied it is a demonstration of the mother’s ability to meet this child’s needs for safety and protection.

2. I have addressed, in effect, the likely effect of any changes in the child’s circumstances, and just as importantly I have also addressed the likely effect of not changing the child’s circumstances.

3. In light of the major protective concerns present in this case, in my view issues raised in submissions against the orders sought by the father concerning practical difficulty and expense of the child spending time with the father pale into insignificance.

4. I am satisfied that the mother is fully capable of meeting all of this child’s needs, and I am satisfied she has done so in an exemplary manner, despite the profound ongoing effect upon her personally of the father’s violence upon her.  I am concerned that making the orders that the father seeks would, in fact, compromise the mother’s ability to continue to do so, and, in particular, may impact upon her emotional availability for the child and her ability to meet the child’s emotional needs.

5. I am not satisfied the father has a proper appreciation of this child’s needs, to be able to meet them.  He has not satisfied me that he has any true appreciation of the effect upon the mother of his behaviour towards her, and through its effect upon her, its effect upon his child.  He professes to have remorse and regret for his behaviour, and he professes to understand that it has had a serious effect upon the mother, and yet nowhere in his evidence or in the orders he seeks is there any indication that he is prepared to act upon his statements.

6. Given the father’s acceptance, or rather his claimed acceptance, of the serious effect on the mother of his behaviour, and that there was no challenge at all to the mother’s evidence of the symptoms that gave rise to the suggestion that she suffers PTSD, or to her evidence of her deep-seated and abiding fear of the father finding out where she is, the orders the father seeks display no allowance for that fear at all.  There was no apparent attempt to ameliorate that fear, and, in fact, the whole tenor of the orders sought by the father could do nothing but heighten that fear.  That, too, must reflect upon the child, the mother being the child’s primary carer, and is another illustration in my view of the father’s incapacity to meet the needs of this child.

7. In relation to the characteristics of the child or either of the parents that are relevant, the child has mixed Japanese and Egyptian heritage through the mother and the father, respectively.  The absence of any involvement with the father will deny this child any knowledge of or exposure to her Egyptian heritage.  I note the mother’s candid evidence that, while she has sought to involve the child with people who may share the child’s Japanese heritage, she has not done so with people who may share her Egyptian heritage.  I accept her explanation that that was through fear of the father discovering her whereabouts as full justification for her position.  This is an aspect of the adverse consequence to the child of having no relationship with the father.

8. I am satisfied that the totality of the potential adverse effects for the child having no relationship with the father, as the mother seeks and the Independent Children’s Lawyer proposes, serious though they are, are not as severe as the potential adverse effects for this child of making the orders the father seeks and both exposing this child to the risk of harm and exposure to family violence, and at the same time significantly impairing the mother’s parenting capacity.

9. In relation to the attitude of the child and responsibilities of parenthood, I am satisfied, as I have indicated, the mother has met the child’s needs in an exemplary way.  The father’s violence to the mother shows he has no true appreciation of the child’s needs or his responsibilities as a parent.

10. As I have indicated, I have accepted the evidence of the mother and I am satisfied that there was repeated serious family violence throughout the parties’ relationship, perpetrated by the father on the mother.

11. I have referred already to the current family violence order.

12. In relation to whether it would be preferable to make an order least likely to lead to further proceedings, this is the second time parenting issues for this child have been determined by the Court in three years, albeit that the father did not participate in the first hearing.  I am satisfied that it would be in this child’s best interests to seek to remove the uncertainty that ongoing proceedings create, and also the adverse impact upon the mother, as indicated in the two experts’ affidavits in her case, of the stress and distress to her of any ongoing uncertainty about the parenting arrangements.  On balance, although in my view this is a relatively minor consideration in this case, I am satisfied the orders the mother seeks that are supported by the Independent Children’s Lawyer are less likely to lead to further proceedings than those the father seeks.

13. In relation to subsections (4) and (4A) of section 60CC, I note, as I have already mentioned, that since separation the mother has sought to keep her locality secret from the father, and thus has sought successfully to prevent any prospect of the father seeing or communicating with the child.  Nor has she sought to involve him in any decision-making about the child.  The father sought to initiate a child support assessment against himself.  The child support case was ended by the Child Support Agency when the mother refused to accept his money.

14. However, for the reasons I have already given, I am satisfied that the mother’s actions were justified and appropriate by reference to the protection of the child and the risk of exposure to abuse and to protect herself from the father’s violence.

Decision

1. Bearing in mind my findings as to family violence, the presumption about equal shared parental responsibility does not arise (section 61DA(2)).  Given the mother’s justifiable fear of the father and of his finding her location, with the attended risk to her personal safety if he did, I am satisfied that an equal shared parental responsibility order would not be in the child’s best interests, and that a sole parental responsibility order in the mother’s favour is.

2. There is no challenge to the mother remaining the child’s primary carer and I am satisfied this is in the child’s best interests.

3. For the reasons that I have adverted to in addressing the matters under section 60CC, I am satisfied that this is one of those relatively rare cases where, on balance, this child’s best interests require the Court to make an order that the child will spend no time with the father and have no communication with him.

4. In relation to the other matter of controversy, effectively as between, on the one hand, the mother, and, although for different reasons, on the other, the Independent Children’s Lawyer and the father, that is the Watchlist provision, I accept the submissions by counsel for the Independent Children’s Lawyer that, although the father has permanent residency, he nonetheless has a visa for a limited term.  While he suggested that that would be automatically renewed, there is no evidence before me that that is the case, and in any event, I am satisfied he provided false information to the immigration authorities in connection with his application for citizenship, which failed.  It may be that he provided false information in connection with his permanent residency application.  I am therefore far from certain what may happen in relation to the father's migration status in the future, and the Court cannot proceed upon the assumption that the father’s permanent residency will remain, or, alternatively, that his visa will be renewed.

5. The father sought to restrain the mother removing the child from Australia to visit the maternal grandmother in Japan, because he alleged the mother may kidnap the child.  There is no evidence of any such risk, other than a theoretical or hypothetical risk.  When cross-examined about this, the father noted the child has a paternal grandmother in Egypt, and neither Japan nor Egypt are convention countries.

6. In the circumstances, I am satisfied that the child’s name should remain on the Watch List for another three years, because I am satisfied that the restraint on the father removing the child from the country should remain.  The father himself sought as much.

7. So far as the father’s application that the mother be restrained from removing the child from Australia, I am not satisfied any such order is necessary or appropriate.  As mentioned, the risk of the mother permanently removing the child is a hypothetical one.  There is no evidence that the mother has indicated she may do so, and her evidence is she has no intention of doing so, and I accept her evidence.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  7 November 2013