I & P - [2007] FMCAfam 435

FEDERAL MAGISTRATES COURT OF AUSTRALIA

I & P

[2007] FMCAfam 435

FAMILY LAW – Parenting orders – father incarcerated in the TEH for mentally ill prisoners following a conviction for murder – father wishes to have correspondence and face to face visits with his 11 year old daughter – father voluntarily ceased contact with the child the year before his arrest – child does not remember her father – mother fearful of the father – history of family violence – history of violence to others – potential risks to child outweigh potential benefits.

FAMILY LAW – Change of name – mother fearful of father discovering her whereabouts – wants to change child’s surname to make it difficult for father to trace her – child will be an adult by the time the father is released from prison and can make contact with him if she chooses – name change authorised.

Family Law Act 1975, ss.60B, 61DA

Applicant:

Respondent:

File Number:

MLM 3767 of 2006

Judgment of:

Hughes FM

Hearing dates:

22 & 28 June 2007

Date of Last Submission:

28 June 2007

Delivered at:

Melbourne

Delivered on:

25 September 2007

REPRESENTATION

Applicant appeared by videolink:

Counsel for the Respondent:

Mr Wood

Solicitors for the Respondent:

Pearsons

ORDERS

That all previous orders in relation to the child UI born 21 March 1996, are hereby discharged.
That the child's mother have sole parental responsibility in relation to the child.
That the child live with her mother.
That the father's application to communicate with the child and spend time with the child is denied.
That the mother is hereby authorised to apply to the Registrar of Births Deaths and Marriages to change the name of the child without the consent of child's father and the Registrar is requested to give effect to any such application.
That, otherwise, all extant applications are hereby dismissed.
That pursuant to section 65DA(2) 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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3767 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

The applicant father in these proceedings, CI, is incarcerated following a conviction for murder and intentionally causing serious injury. He is currently a patient at the TEH for prisoners with serious mental illness. He has appealed against his conviction and sentence. If his appeal is not successful he will remain incarcerated until 2017. He seeks orders for contact with his 11-year-old daughter, UI. He would like to exchange correspondence and photographs with her, speak with her on the telephone and have face-to-face visits with her each week.
U’'s mother is totally opposed to any contact between U and her father. She says the father is a violent and dangerous man and that it would not be in the child's best interests to maintain a relationship with him. She is afraid that any success of the husband's appeal may result in an early release date. She has taken steps to protect herself and the child. Her address is not on the electoral roll and she is shortly to change her surname. She wishes also to change the child's surname.

Background

The parties are both Australian citizens. The applicant father was born in Nigeria and the mother has Spanish heritage. The couple met in Madrid, Spain and, after a short period of living together, married there on 20 October 1992. At that time the father was 26 years of age and mother 18 years old. The mother described herself as being, at that time, a rebellious teenager.
U was born in Australia on 21 March 1996.
The parties separated in June 1998 and divorced in 1999.
The mother says the relationship was characterised by violence perpetrated upon her by the father. She said that during the relationship the father threatened to kill her and the child and that, subsequent to separation, the father made further threats to kill her.
She gives specific evidence about such threats being made on the day of separation in the presence of her brother, MP. Her brother swore an affidavit in August 1998 corroborating the mother’s evidence about these events. That affidavit is annexed to the wife's affidavit filed 19 December 2006. MP did not give evidence in these proceedings. Accordingly, I cannot give it any weight. I note, however, that events have occurred since then which demonstrate the husband's capacity to kill, regardless of whether or not he has threatened to do so.
The mother obtained an intervention order at the time of separation. The father denies being violent or threatening the mother but agrees the intervention order was made. His appeal against that order was not successful.
Interim orders were made on 30 September 1998 in the Family Court which provided for the child to spend time with her father every second weekend with handover to occur outside the Coburg police station.
An incident occurred in early 1999 in which the mother said she was assaulted by the father in the presence of the child at handover. As a result of the incident, the father was convicted on 16 August 1999 of unlawful assault and breach of the intervention order. Following these events, further interim orders made on 20 October 1999 which changed the handover point to inside the police station.
Final orders were made in the Family Court on 17 August 2000 following a hearing on 2 and 3 August 2000. The orders provided for the parties to have joint responsibility for the long-term care welfare and development of the child. The child was to live with the mother who was responsible for her day-to-day care welfare and development. The orders provided for the child to spend time with her father every second weekend and during school holidays.
The orders provided for handover of the child to occur at the Brimbank contact centre on days when the child was not collected from or delivered to school. Until the contact centre was available, handover was to occur outside the Coburg police station.
In November 2000 the mother and child moved to Sydney for the mother to take up an offer of employment. The mother brought the child to Melbourne for contact with her father every second weekend in accordance with the orders but was unable to comply with the handover time of 6:30 p.m. on Fridays. She says the father refused to agree to a change in handover time to accommodate her, notwithstanding that she was travelling from Sydney each fortnight to facilitate the contact.
The father brought contravention proceedings against the mother in relation to her attending late for handover. On 26 June 2001 the contravention application was dismissed. A specific order was made for holiday contact between 9 July 2001 and 16 July 2001. It appears that this holiday contact was never exercised as the parties agree that all contact between the child and her father ceased in April 2001.
An incident occurred outside the Coburg police station on Christmas Day 2000 at the handover of the child from the mother to the father. A statement given by the mother to the police about the incident is annexed to her affidavit filed 19 December 2006 and relied on in these proceedings. The mother said that as she approached the father he said to her "I'm going to kill you, and you're not going to see this girl again.” He grabbed the child from the mother. The mother said "Stop threatening me”. The husband then raised his hand as if to strike the mother. Two police officers who had just driven into police station were approaching. As the father raised his hand, one of them called out to the father, attracting his attention.
The mother says the father was yelling and abusive to the police and the mother while holding the child in his arms. He then put the child in his car and continued his verbal abuse of the police. The police arrested the father and took him into the police station. The mother took the child from the father's vehicle and left. The father was released without charge shortly afterwards.
The father continued to spend time with the child every second weekend for the first school term of 2001. Handovers occurred at the school. During the first school holiday period of 2001, the husband did not collect the child as he refused to attend the police station. It is common ground that did not spend time with the child after April 2001. The child was five years of age when the husband ceased his contact with her.
In November 2001 the husband attended at the child's school without notice. He behaved in a manner which resulted in the school taking an intervention order against him and making changes to its security arrangements.
In addition to his conviction for assaulting the mother, the father has several convictions for other violent offences. In 1998, the husband stabbed a neighbour following a dispute about the neighbour parking in the wrong car space. The stabbing resulted in non fatal injuries to the neighbour. The husband agreed he was convicted of an offence arising from the incident but denies that he committed it. He said that he was one was attacked and said "I was found guilty for no reason.”
In early 2002 the father stabbed two people, one fatally. On 6 January 2002 he was arrested and has been incarcerated since. He was ultimately convicted of murder and intentionally causing serious injury.

The current proceedings

The father commenced these proceedings on 26 April 2006. There were some delays in the matter being heard. This was partly due to be father experiencing difficulty in obtaining legal representation and wanting to pursue that course. There were also a number of procedural applications including an application for a Commonwealth information order to locate the mother and child.
The father was ultimately unrepresented in the hearing which occurred on 22 and 28 June 2007. The husband participated by video link from the TEH.
Although there was no medical evidence before me, the husband's evidence is that he has been diagnosed as suffering from paranoid schizophrenia.
There were a number of unfortunate features of the way the husband gave his evidence. I have no way of knowing whether they are the result of his mental illness or are simply features of his personality.
During his evidence the father appeared short tempered and arrogant. On several occasions he refused to answer questions until specifically directed to do so.
When asked by the mother’s counsel if he had ever stabbed anybody with a knife, he replied "Listen, that question is not pertinent. I am not answering that question.”
When asked whether he was initially sent to prison following his conviction, rather than the TEH, the father replied “I have answered you that question. Don't ask me that question again.”
During the evidence the father frequently spoke over the top of other people. At one point he did acknowledge he had done so. The fact that he was appearing by video link made communication more difficult. Most instances of the father speaking over other people, however, seemed to be purely the result of his desire to dominate the proceedings.
The father periodically launched into long monologues in answer to simple questions. He frequently referred to himself as having been victimised. He said in relation to the incident outside the police station on Christmas Day 2000 that it resulted from the mother refusing to let him leave with the child. He said the police came over and beat him up in front of the child. He said he was considering suing the police for those actions.
The father appeared to be quite out of touch with reality in relation to the implications of his appeal. When asked whether he was convicted of murder he said "It's been appealed. The conviction and sentence is being appealed. So I'm not convicted of anything.”
The father said he lodged his appeal on the day he was convicted, approximately 11 November 2004. He said the appeal has not been heard as, until recently, he has had no legal aid to prosecute the appeal. He said he has just been advised that Victoria Legal Aid is prepared to pay for the proceedings.
He was adamant that, even if his appeal against conviction is not successful, he is likely to be released from custody sooner rather than later because he will be re-sentenced in any event.

The law

Part VII of the Family Law Act 1975 sets out the law applicable in children's matters. Section 60B sets out the objects of Part VII and the principles underlying those objects. In essence, the objects and principles are designed to promote meaningful relationships between children and their parents "to the maximum extent consistent with the best interests of the child"[1]. In this case the nature of the relationship between the child and her father is necessarily constrained by the fact that he is incarcerated. It is further constrained by the mental illness and/or personality of the father.
[1] Section 60B(1) of the Family Law Act 1975
In any parenting order made by the court, the child's best interests are the paramount consideration.
Section 61DA requires a Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared responsibility. The presumption does not apply in certain circumstances and may be rebutted. I am satisfied in this case that the presumption does not apply because the father has engaged in family violence. The presumption is also rebutted by virtue of the fact that it would not be at all practical or appropriate for the parents to share parental responsibility in this case.
In this matter I am satisfied that there are serious potential risks to the child's physical, emotional and psychological health if she were to have contact with her father.
The father gave evidence about the facilities available at the TEH in the event the child came to visit him. Although on the basis of the father's evidence it appears that the facilities are appropriate, more evidence would be required if such an order were to be made. In particular, there would need to be specific evidence about what facilities are available for the physical protection of the child.
The father suggested that he could make arrangements through a particular organisation for an independent person to accompany the child to see him if the mother did not wish to do so.
It was put to the father by counsel for the mother that, given the child had not seen him for six years; if she came to visit him she would be meeting him as a stranger. The father conceded that he did not know whether or not his daughter would still recognise him. He said however that he believed the child needed to see him:
"She needs to see me. She needs to meet me. She needs to know me. She needs to have that welfare, development and care. She needs paternal care from me…because I’m spiritually and emotionally related to my daughter. That can't be taken away from me by any lawyer or any Court.”
The father also spoke of his desire to develop in the child an appreciation of her African heritage.
When asked what he would say to the child if she asks him why he is incarcerated he said "I will tell her just what happened before when I was beaten up by the police.” Counsel for the wife asked "So you’ll be explaining to her that you’re a victim, you're not a perpetrator. Is that right?” He replied "I'm a victim, yes.”
This piece of evidence demonstrates a lack of capacity on the part of the father to put the needs of the child before his own. I have no doubt that he would attempt to persuade the child that he was a victim of police brutality and other forms of victimisation. Such conversation is likely to be confronting and confusing for the child. It may cause her distress if she believes her father has been wronged.
To his credit, however, when asked whether he would tell his daughter that he should not be in prison the father replied "I won’t tell her that. I will brush the question aside because she's not mature enough.”
Nothing in the evidence or in the conduct of the father during the proceedings would lead me to think he has the capacity to have a calm and nurturing conversation with his daughter. On the contrary, there is a real risk that she would be overwhelmed by the force of the father's conversation and personality.
The contact sought by the father with his daughter would no doubt be beneficial for him. I am not persuaded that it would be beneficial for the child.

The family report

A family report was prepared by Mr Dean Das. Mr Das made strong recommendations against any form of contact between the child and the father.
The father and Mr Das did not get on well. The father complained that Mr Das telephoned him two hours late on the day of his assessment. It is clear from the report that when Mr Das did ring a very unproductive discussion occurred between the two men. Mr Das’ report of his session with the father occupies only three paragraphs of the report. Those paragraphs are as follows:
“19.Mr I [sic] was interviewed by telephone for approximately 30 minutes. Mr Ii constantly talked over the top of the Writer. He only wished to monologue on topics that he wished to talk about. The content of the monologues were around justifications for his past behaviours. Mr I preferred to avoid answering questions pertinent to his relationship with the child, and showed scant interest in the child herself.
20.Mr I continued to berate the Writer over (incorrect) accusations that the Writer had not read his Affidavit, and Mr I threatened to terminate the conversation.
21.The Writer cautioned Mr I that unless he stopped his monologue and answered the questions put to him, the conversation would be terminated. Mr I continued with the aforesaid behaviour, and the Writer terminated the conversation.”
During cross-examination of Mr Das, the father focused a lot of his attention on factual mistakes in the body of the report which, at the end of the day, made no difference to the assessment. One mistake the father focused on was that Mr Das referred to previous proceedings in the Federal Magistrates Court, whereas the proceedings had in fact been conducted in the Family Court of Australia. The father also asserted that Mr Das was mistaken when he said that a particular set of orders required handover of the child inside the Coburg police station. The father himself was mistaken about which orders required handover inside the police station and which required handover outside police station. The father also challenged Mr Das about his report of the history of proceedings concerning domestic violence intervention orders.
In his evaluation, Mr Das did refer to the father's history of violence in addition to the matters for which he is currently serving a sentence. He was asked whether his recommendations would be any different if there had been no other instances of violence besides the matters for which he was currently incarcerated. Mr Das said that his recommendations would not change in those circumstances.
Mr Das interviewed the mother, the mother's defacto partner, Mario, and the child. He formed the view that there was a strong rapport and warm affection between all family members. His report about his session with the child was as follows:
“26.U presented as a sweet natured child. She is currently in Grade 6 at school. She enjoyed school.
27.U stated that she had no memories of her biological father, had no memorabilia, and did not remember what the father looked like. She had not seen any photographs of him. She stated that she knew her father was in jail for doing "bad things". She stated that "Mario is my dad".
28.When asked if she wanted to visit her father in jail, she responded "no". She responded "no" again to the same question. When asked if she wished to know anything more about her biological father, she replied, "no, not really". She commented that she was quite happy to change her surname, as requested by the mother.”

Mr Das said in his report that the orders sought by the father would put the child's emotional well-being at risk as well as the physical safety of the mother and the child’s stepfather.
Mr Das summarised his recommendations at paragraph 35 in which he said as follows:
35.U is a well adjusted young girl living in a stable, loving and caring family who does not wish to have any current contact with a biological father whom she cannot remember. There is no advantage to the child for knowing her father, yet there is considerable potential disadvantage based upon the criminal history of the biological father, and his criminally insane state of mind.”
Having heard the evidence and observing the father over the course of two days of hearing, I agree that the risks associated with the child having contact with her father outweigh any potential benefit to her. The husband's conviction and incarceration for the crime of murder is not the determining factor in my decision. If he were a more mature and reflective person who was able to demonstrate sincere remorse for his actions it might be possible for him to develop and maintain some sort of relationship with his daughter in which she could benefit from the things he could offer, notwithstanding his incarceration.
In this case, however, the father is profoundly self-absorbed and blames others for every negative thing he has experienced. He persists in seeing himself as the victim, even in circumstances in which he has been the perpetrator of serious violence.
I agree with submissions by Counsel for the mother that any reintroduction of the father to the child may well be emotionally fraught for the child and would need to be handled delicately. There is no basis on which I could possibly find that the father has capacity to handle the matter sensitively or to accept advice or guidance in relation to it.
I accept the evidence that the child is enjoying a happy, well balanced and settled life. She has an affectionate father figure in the form of her mother's defacto partner. She is aware that she has a biological father who is in gaol. U will be an adult by the time the father is released in 2017. As an adolescent or young adult she will be able to determine for herself whether she wishes to make contact with her father. Even in the seemingly unlikely event that the father is released prior to 2017, it is likely he will be traceable through means such as the Parole Board.
I am satisfied in all the circumstances that the best interests of the child will be served by not disturbing the happy equilibrium the child currently enjoys.
I accept that the mother is extremely fearful of the father finding out where she lives. Any contact between the child and the father will increase the chance of the father discovering the mother's whereabouts. A denial of the father's application for contact with the child will also provide some reassurance to the mother which, indirectly, will benefit the child.

Change of name

The family report writer assessed the mother as being genuinely fearful of the father and of his discovering her whereabouts. I accept that the mother's fears are reasonable and well founded.
The mother intends to change her own surname and wishes to change U’s surname. She does not wish to disclose the new surname. The father opposes the application on the basis that U’s surname is the child's connection to him and to her cultural heritage. These matters are important considerations and would normally carry significant weight but, in this case, are outweighed by other considerations.
U's surname is very distinctive. When the father is released from gaol he may try to locate U. It will be much easier for him to do so if she retains her current surname. The father is a violent and irrational man who is difficult to control, even in the formal setting of a courtroom. There are potential risks in U being confronted by her father, even as an adult, especially if he is not pleased by her reaction to him finding her.
If U's surname is changed to a name unknown to the father, it will provide a degree of protection to the child and to her mother and stepfather. U can then determine whether or not she wishes to have contact with her father, and on what terms.
U currently does not have a relationship with her father and is not likely to do so for many years, if at all. On the evidence before me there is not likely to be any embarrassment or confusion of identity for the child arising from the change of surname. I am satisfied in all circumstances that it is appropriate to allow the mother to change the child's surname.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Hughes FM

Associate: J Commins

Date: 25 September 2007