MATOU & TUNEZ

[2015] FamCA 812

FAMILY COURT OF AUSTRALIA

MATOU & TUNEZ [2015] FamCA 812

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of Family Violence and abuse - Orders that children live with the mother and spend no time with or communicate with the father – Order that mother have sole parental responsibility for the children – Orders that mother be permitted to change the children’s surname

Family Law Act 1975 (Cth) ss 60CC(2)(3), 61DA

APPLICANT: Ms Matou

RESPONDENT:	Mr Tunez
INDEPENDENT CHILDREN’S LAWYER:	Ms Agresta

FILE NUMBER: PAC 1984 of 2011

DATE DELIVERED: 2 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 2 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr O’Brien

SOLICITOR FOR THE APPLICANT: D & M Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Agresta

Victorian Legal Aid

Orders

1. All previous parenting orders in relation to the children B born … 2005, C born … 2007, D born … 2008 and E born … 2011 (‘the children’) be and are hereby discharged.

2. The children live with the mother.

3. Ms Matou (‘the mother’) have sole parental responsibility for the children, including sole responsibility for applying for Australian passports for the children under the Australian Passports Act 2005 (Cth).

4. The mother is permitted to apply for passports for each of the children (including renewals of passports) without obtaining the consent of the children’s father, Mr Tunez (‘the father’).

5. On receipt of any such passport the mother shall deliver it to the Registry of the Family Court of Australia at Melbourne and that passport shall be held by a Registrar or the Registry and not released without the written consent of both parties or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

6. The mother be permitted to do all acts and sign all documents necessary to change the children’s family name from Matou to Kanu on each of their birth certificates, notwithstanding that she does not have the consent of the father.

7. The father spend no time with the children and there be no communication between the father and children except as otherwise ordered by a court exercising jurisdiction under the Family Law Act or by agreement, in writing, in advance, between the parties.

8. THE COURT DECLARES the place of habitual residence of the children is Australia.

9. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. All extant applications be dismissed.

IT IS DIRECTED

1. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same, apart from the police documents and the minute of order tendered today.

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matou & Tunez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 1984 of 2011

Ms Matou

Applicant

And

Mr Tunez

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Matou (‘the mother’) and Mr Tunez (‘the father’) have four children: B, born in 2005 and now aged ten, C, born in 2007 and now aged eight, D, born in 2008 and now aged seven, and E, born in 2011 and now aged three.

2. The parties finally separated in September 2013.  There is an issue between the parties as to the current parenting arrangements.  The mother had commenced proceedings in the Parramatta Registry of the Federal Circuit Court seeking the urgent return of the child, E.  Those proceedings were then transferred to the Family Court, and the proceedings are now being dealt with by the Family Court in Melbourne.

THE ISSUES

1. The substantive issues in this case are the questions of family violence with regard to the father, his mental health and his abuse of substances and alcohol.  When the matter came to the Family Court, the mother made it clear that she wanted a series of orders which, in effect, meant:-

   (a)that the children live with her, she have sole parental responsibility;

   (b)that she had permission to issue a passport;

   (c)that she had permission not to provide an address; and

   (d)to change the children’s name, given the circumstances which she described.

2. There was also an issue as to whether the mother could travel overseas with the children from time to time as she determined.

3. The father had filed proceedings where he sought significant time with the children and in which he denied any aspect of family violence, although he made some minor concessions, and asserted that his issues with substance abuse and mental health were well in control.  The father was represented until earlier this year and on 6 August 2015 these proceedings came before Bennett J of this Court.  At that time the father was present in person, albeit, as I understand it, by telephone.

4. At that time, her Honour gave leave for the father to withdraw from the proceedings, fixed the matter for hearing today and warned that if parties did not file affidavits or did not attend, then it was open for the hearing to be determined on an undefended basis.  The father was called outside court three times on at least two separate occasions and was not in attendance today.

5. I am satisfied that the father knows of the proceedings are to be before the Court today and, as such, I am satisfied that the proceedings can be dealt with on an undefended basis, which is what is sought by the Independent Children’s Lawyer and which is what is sought by the mother through her counsel.

6. The material before the Court today included:-

   (a)the orders of her Honour Bennett J on 6 August 2015;

   (b)the defended hearing sheet from that day which discloses that the father appeared in person by telephone;

   (c)a family report dated 13 July 2015;

   (d)a single expert psychiatric report of Dr F (‘Single Expert Psychiatrist’) dated 28 May 2015;

   (e)the mother’s affidavit filed 1 September 2015; and

   (f)her case outline prepared by those who represent her filed the same day.

THE BACKGROUND

1. The background to this matter is that the father was born in 1975 and is aged 40.  The evidence is that he came to Australia with his family when he was aged about 10, which would make that about 1985.  The mother was born in 1979 and is aged 36.  The parties met in Country G in 2001 and married in that year.  They moved to Australia in 2002.  They had the four children to whom I have alluded earlier in these reasons and separated in 2006, briefly, and their final separation was in September 2013.

2. But for one issue, the father has not seen the children since late 2013.  There was an event in early 2014 where the father removed E without knowledge of her day care and an order of Federal Circuit Court was needed to bring the child back into the care of the mother, the mother having been essentially the sole carer of the children throughout all of their lives, both before final separation and after final separation. 

3. An apprehended domestic violence order was made in New South Wales on 12 June 2014, which has now expired, as the mother has during the course of these proceedings moved to and now lives in Victoria.  There is a family violence protection order made in Victoria on 7 July 2015, which operates, as I understand it, until 16 July 2017, some two years approximately.  These are annexed to the mother’s affidavit. 

THE LAW

1. When determining orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.

2. Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.

3. The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.

4. If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must consider the children spending substantial and significant time with each parent.  In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable.  If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

5. These proceedings were commenced after the 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do apply to these proceedings, and the provisions in force immediately before that date do not apply.

6. In the mother’s affidavit she describes the history of the family and the recovery circumstances following the events on 6 February 2014 in relation to the removal of the child, E, from the childcare centre.  The mother provides a detailed description of family violence of a physical and emotional level levied against her and the children throughout the course of the relationship and following separation.  This included threats of knives and physical violence.  The mother describes the father’s mental illness, as she perceived it, and I treat that evidence as her observations of his symptoms rather than a diagnosis by the mother.  The father has on many occasions attempted self-harm and has on occasions threatened to take the lives of the children and the mother. 

7. The mother gives evidence that she is the primary carer of the children and gives evidence of the impact of this violence upon the children.  The mother sets out her current concerns and seeks the orders to which I have alluded.  I am assisted by a report from a single expert psychiatrist, which report I have referred to later in these reasons.  The Single Expert Psychiatrist provides a diagnosis of the father, where he says:-[1]

   Based on the information provided to me by the father, it appears since that since 2005 he has been experiencing auditory hallucinations and persecutory delusional beliefs and possibly referential ideas consistent with recurrent episodes of psychosis.  In my view, he likely suffers from paranoid schizophrenia with differential diagnosis of schizo-affective disorder because he has on occasions experienced mood symptoms.  He says this is currently in remission. 

   [1] At page 6 of the Single Expert Report dated 28 May 2015.

8. He notes that the father’s illness was characterised by periods of poor compliance with medication, has been associated with relapse, admission to psychiatric hospitals on occasions and those admissions being associated with self-harm behaviour.  He also observes that the father has a substance disorder of at least moderate severity, which, according to self-report of the father, is in remission.  He sets out his views and makes recommendations in relation to the father. 

9. A family report was placed before me.  That report is dated 13 July 2015 and was prepared by a family consultant who works in the Melbourne Registry of the Family Court.  She makes recommendations in the event that the father poses a risk of family violence to the mother.  It is in these reasons I will be making such a finding.  Given that I intend to make that finding, the recommendation of the Family Consultant is that the children’s time with the father be reserved and that the family’s address, identity and location of any services the children attend are withheld.  She also recommends, in any circumstances, that the mother have sole parental responsibility and the children live primary with the mother. 

10. The Family Consultant had, in terms of her report, a plethora of material, including the files notes of the children from the Department of Family and Community Services New South Wales received in December 2014, notes of the criminal history of the father from New South Wales Police and other material, including that from Odyssey House and Liverpool Hospital.  It is clear that she relied on that documentation in respect of her report.  She notes that the father was diagnosed with schizophrenia and that in July 2014 he reported using heroin and alcohol on a daily basis since he was a teenager and that in Odyssey House he was diagnosed with alcohol dependence disorder, poly-substance abuse disorder, anxiety and depression. 

11. Concerns were raised that the father might suffer from a post-traumatic-stress disorder, and there was a reported history of between six and seven suicide attempts.  The father has an extensive criminal history, including being charged with offences in Country G, in which he served some term of imprisonment.  He has a criminal history in Australia, particularly in New South Wales, for various offences.  He has been imprisoned between four and five occasions, including earlier in 2015, with 10 weeks for assault. 

12. The Family Consultant sets out the current arrangement for the children, which are consistent with the evidence provided by the mother.  The Family Consultant interviewed the father, who was in the company of his sister, Ms H, and at the interview he appeared to be affected by some prescribed drugs, which he takes on a daily basis, and his affect appeared heavy and dull.  The Family Consultant considered that it might be that he continues to suffer from depression, given his mental health issues. 

13. It is clear that the father has limited insight into his illness and prognosis.  The father, despite the information from Odyssey House and other factors, denied he had a substance abuse issue and therefore said the children could not be affected by that.  Given the evidence of the mother, that statement could only be seen as unhelpful and inaccurate.  The father denies the family violence, although often struggles to explain to the Family Consultant issues of violence, including the most recent issue of violence.  The children’s paternal aunt was interviewed separately, and her statements caused concern about the veracity of her and reliability of them with the Family Consultant, and given the context of what she said, that seems somewhat clear. 

14. The Family Consultant saw the mother, who provided evidence consistent and statements consistent with her affidavit, including the misuse of alcohol, the drugs and the impact upon the children and the impact of the violence.  The mother said she could not communicate with the father in future and presented as frightened that he would discover her home address.  She was concerned that he would stalk her and wishes to revert to her maiden name. 

15. The Family Consultant interviewed each of the children, and B was the star performer in that situation.  She is an assertive, clear-thinking young lady, who will no doubt provide that clear thinking as she grows and matures into an adult.  She describes her views in the clearest and most plain terms.  She reported being frightened of her father and did not with to have contact with him. 

16. There is the evidence of C, who also expressed her fear of the father and commented on the history, although the Family Consultant observed that one of the descriptions appeared to be an adult description that the child had adopted.  C was concerned that her father would hurt her mother during the conflicts and noted that the father carried a pocket knife and on one occasion held it to the mother’s throat.  She did not wish to spend time with the father.  D, the Family Consultant described as extremely shy and barely spoke.  I do not give significant weight to their views, as they are no doubt reflected by that of their mother and their siblings. 

17. The Family Consultant had discussions with Ms I, who assisted with counselling.  The Family Consultant rightly acknowledges that the central issues to the parenting dispute are the family violence, the mental health issues, and substance abuse issues.  I have noted those recommendations. 

18. The Family Consultant was concerned that the mother presents as having limited ties to Australia, although the mother’s family is entirely in Country G.  I struggled with this at some levels, because there are no present arrangements in Country G, and Country G presents as a community under some pressure given the events surrounding that country at the present time.  The mother legitimately wants to see her parents and her broader family, and initially sought orders that she be permitted to travel over there from time to time.

19. The problem with that is that the mother may stay there, although the mother says she does not intend to.  The arrangement reached between the mother and the Independent Children's Lawyer was that passports could be provided, but that trips would have to work on a trip-to-trip basis.  As I said, I was somewhat concerned because it puts the mother having to get back in contact with the father and seeking orders.  However, given those concerns and given the agreement between the parties, I do not intend at this stage to allow the mother to travel overseas, although I indicated that if there were mirror orders similar to the ones I have already made, made in Country G, it may well have a significant impact on any further application, whether that be for a particular trip or a more general sense, as the mother initially sought. 

SECTION 60CC FACTORS

60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

1. There is no doubt that the mother is the principal carer for the children and is in fact the one who has provided most, if not all, of their parenting needs.  There is no issue that the relationship between the children and the mother will continue.  The father, on the other hand, on the evidence before me, has a limited relationship with the children.  Some of the younger children have positive thoughts of him in terms of playing and his humour.  However, he has exposed them to violence, both directed to them and to the mother. 

60CC(2)(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Section 60CC(2)(b) is the primary factor in relation to this matter. This is a matter where the recent amendments give real bite to the impact of the family violence. Given the history of family violence, the father’s failure to be contained even in the face of orders, I am satisfied that the children and the mother are at unacceptable risk of being victims of family violence to the father in this case. The intervention orders were necessary and will no doubt be necessary for at least the medium term.

60CC3(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. The elder children have expressed negative views of the father and do not wish to spend time with him.  All of the children have indicated that they wish to live with the mother. 

60CC(3)(b) the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)   other persons (including any grandparent or other relative of the child);

1. The father has a limited relationship with the children.  They clearly know who he is, and clearly know he is their father.  The elder children want nothing to do with him, given the issues of violence and the other issues.  He has not seen them in any meaningful way, apart from E, to which I have alluded earlier, since the end of 2013.  The mother has settled in Melbourne and intends, she says, to remain in that city.

60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)   to spend time with the child; and

(iii)  to communicate with the child;

1. The mother is unwilling to facilitate and encourage a close relationship.  Given the violence to which she has endured, that is entirely understandable and is a significant protective measure.  The mother is also concerned about the father’s history of mental health issues, which have clearly from time to time been untreated.  She is also rightly concerned to the father’s substance abuse and alcohol abuse issues. 

60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The mother has moved to Melbourne.  The children have lived here and there was a change at the time of separation, and when the mother moved down to Melbourne, given the history of violence.  Although, current circumstances are likely to change, and those circumstances are likely to mean that the children have no contact or communication with their father.

60CC(3)(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

1. The mother has a home put in place and she is caring for the children.  She is endeavouring to deal with the issues that arose from the violence.  The mother is currently unemployed and devotes her time to the children.  There is no evidence of criminal history by her, nor is the evidence otherwise than she is in robust good health.  She has shown that she has met the needs of the children and continues to do so. 

2. Given the father’s history of violence to the mother and the children, the history of his from time to time untreated mental health issues and substance abuse and alcohol abuse.  The father has little or no capacity to provide for the needs of the children. 

60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child's parents;

1. I simply repeat what I have said earlier. It does not need further repetition. Similarly, with section 60CC(3)(j) and (k), I make the same comments. I have noted the orders in place and I have noted the history and the supported history of violence over many years.

2. In terms of my summary, it is clear given all of the evidence that the only reasonable order available in terms of parental responsibility is that in relation to the mother having sole and exclusive parental responsibility, and I have made that order.  The violence and the other matters are such that there is no other order reasonably available to me, and that is the submission not only by the mother but by the Independent Children's Lawyer and the recommendation by the Family Consultant. 

3. There is also the question of the children’s passports.  These children will need to travel to Country G from time to time, given their extended family.  There is no reason why the mother ought not to be able to have passports available for such travel without having to run the gauntlet, as it were, of applying to the father on each occasion for that purpose.  Given the history of this matter, I intend to give leave and I have made orders to enable the mother to obtain passports and the renewal of Australian passports.  I have made orders requiring those passports to be placed with the Registrar of the Court and released with the written consent of both parties or order of the Court under the Family Law Act 1975 (Cth). 

4. Given the concerns raised by the Family Consultants and the agreements between the parties, I have not at this stage made an order sought by the mother to travel overseas when she wishes.  However, that may well be an entirely different matter in the weeks, months, or years to come, particularly if the mother is able to have the orders that I have made, made into mirror orders in Country G.  Although, the failure to get those orders ought not to be a precluding factor.  

5. In terms of residence, that is clear.  On the evidence before me there is, again, no other reasonable order, apart from an order that the children reside with the mother.  As to the father spending time with the children, they are not safe.  They are at an unacceptable risk given the father’s violence, alcohol, substance abuse, and given the nature of his psychiatric health and his regular failure to properly deal with that.  Involved in this are his many attempts at self-harm, and his threats to harm, to kill, both the mother and the children. 

6. There ought not to be an order that the father have any contact with the children at all.  Given the circumstances to which I have alluded, the mother will probably need to watch over her shoulder for years to come, which is a terrible burden for her, particularly given the father’s predisposition to engage in stalking-type behaviour and get information to which you would otherwise think that he did not have.  As such, the mother is permitted to change the children’s name, and she is permitted to have all aspects of parental responsibility, which I see as broad as living anywhere within the Commonwealth of Australia that she chooses to live, and if need be to change the children’s names yet again in the event that her whereabouts and their names are discovered.  I make that clear in these reasons, which will be placed on the Court file.  These being the reasons, I make the orders to which I have referred earlier. 

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 September 2015.

Associate:     

Date:              2 September 2015