Parry & Shui
[2022] FedCFamC1F 773
Federal Circuit and Family Court of Australia
(DIVISION 1)
Parry & Shui [2022] FedCFamC1F 773
File number(s): MLC8112 of 2021 Judgment of: MCNAB J Date of judgment: 6 October 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother was absent from the final hearing – Where an airport watch list order was made and warrant issued – Where the court was notified that the mother and the child had left the country – Where there are allegations of significant family violence – Evidence of injuries and family violence not corroborated by contemporaneous medical records – Interim orders made for the child to reside with the father upon the child’s return to Australia Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 15.15
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 6 October 2022 Place: Melbourne Solicitor for the Applicant: Ms Gagliardi Solicitor for the Respondent: Ms Sayer Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers Counsel for the Independent Children's Lawyer: Mr Allen ORDERS
MLC8112 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHUI
ApplicantAND: MR PARRY
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
MCNAB J
date OF ORDER:
6 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Secretary of the Department of Home Affairs and the Australian Border Force (“the Department”) provide information to the Independent Children’s Lawyer and the Applicant in its reports about the destination country to which the child X born 2014 (“the child”) travelled in or about late 2022 and the Australian departure point from which the said child travelled.
2.Pursuant to rule 2.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021, service on the Department in accordance with section 67N(3) of the Family Law Act 1975 be conditionally dispensed with on the Applicant father’s lawyers or the Independent Children’s Lawyers serving a copy of this order on the Department by email or registered post.
3.In the event that the child be returned to Australia, the child live with the father and the mother’s time be suspended.
4.In the event the Applicant father and the Respondent mother cannot agree on the school the child is to be enrolled in and attend in Australia, the Applicant Father shall select the school the child is to be enrolled in and attend.
5.The Applicant father be at liberty to arrange for the child to attend upon a mental health professional of the Applicant father’s choosing to assist the child, if necessary with the child’s living arrangements in Australia and any other matters the chosen mental health professional believes may be in the child’s best interest.
6.The Applicant father be at liberty to provide a copy of the transcript of the Independent Children’s Lawyer’s submissions and the Reasons for Judgment delivered this day to that health professionals referred to in Order 4 herein.
7.The Applicant father’s costs and Independent Children’s Lawyer’s costs of the application be reserved.
8.Liberty to apply on short notice is granted to the parties by emailing the Chambers of the Hon. Justice McNab.
9.The matter be adjourned before the Hon. Justice McNab on 6 October 2023 at 10.00am for interim defended hearing.
AND THE COURT NOTES THAT:
A.Pursuant to section 67N(3)(b)(ii) of the Family Law Act 1975, the court considers that there are special circumstances concerning the removal of the child from the Commonwealth of Australia so that the 7 days service period on the Department under section 67N(3)(b)(i) not apply.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parry & Shui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)McNab J:
This application concerns the child X who was born in 2014. His father, Mr Parry, initiated proceedings on 20 July 2021 in this Court seeking orders among other things to spend time with his son.
In mid-2021, the mother, who goes by the name Ms Shui, made a report to the police of an alleged history of family violence. The mother also uses several other names.
The matter was fixed for final hearing on 3 October 2022, and was fixed for three days.
As a result of orders made during a compliance hearing on 16 September 2022, the matter was listed for mention on 30 September 2022 to ensure that the matter was ready to proceed on 3 October 2022.
Shortly before the hearing on 30 September 2022, the solicitor acting for the mother advised the Court that she sought to withdraw as solicitor because her instructions had been withdrawn on the basis that the mother said she could no longer afford representation.
Given the application to withdraw was made on a Friday, and the final hearing was listed for the following Monday, I did not grant leave for the solicitor to withdraw on that occasion, and ordered the solicitor to appear at the hearing the following Monday on 3 October 2022, at which time she could remake her application, and the Court and counsel for the father and ICL could consider how to proceed.
At the compliance hearing on 16 September 2022, solicitor for the mother made an application for the mother to appear remotely during the final hearing, due to safety concerns resulting from allegations of family violence. Leave was not granted. Orders made on 16 September 2022 reserving the question of the mother being permitted to attend remotely by video link until the father filed his affidavit in response. This issue was not raised by solicitor for the mother on 30 September 2022 and no order granting leave to the mother to appear remotely was made.
The hearings on 16 and 30 September 2022 took place via Microsoft Teams.
The solicitor for the mother attended court on 3 October 2022, as did the father, his solicitor, and counsel for the ICL. The mother did not attend. The mother was called, and there was no response to the call. The matter was stood down for an hour to give the mother a chance to attend in the event she was delayed, however she was still not in attendance when court resumed.
The solicitor for the mother advised that she had been unable to get in contact with the mother since the hearing on 30 September 2022. The mother’s solicitor was given leave to withdraw at this point.
The rules of Court, in particular rule 15.15 of the Rules, provide that:
Unless the Court otherwise directs, a party and the party’s lawyer (if any) must attend each court event.
Upon application by the ICL, the Court made orders for an airport watch list order in respect of the mother and the child and a warrant for the arrest of the mother, and for the mother to be delivered back to Court on this day, 6 October 2022.
On or about 3 October 2022, the Court was advised by the Australian Federal Police that the mother had left Australia late 2022, and the Court has been subsequently advised by the Marshal that he had been advised by the Australian Federal Police the mother had departed with the child, and they have not returned as yet. The Border Force were made aware, and they are instructed to arrest the mother upon her return to Australia, and inform the Court.
This is a case where the father has not seen the child since around August 2020, and the mother in her material has made numerous serious allegations against the father of sexual violence against her and risks of harm to the child.
By way of background, the parties met and commenced cohabitation in about 2013/2014. There is some dispute about the date of commencement of the relationship, which I do not purport to deal with here as the exact date is not relevant for this hearing. The mother has two adult children of a previous relationship.
The mother allegedly has a PhD, and has a history of abuse and trauma, as detailed in her autobiography, which contains numerous allegations of sexual abuse and rapes suffered by her at the hands of various people. She asserts that she was a practicing health professional at the time that she wrote the book.
The mother deposes throughout her affidavit a number of horrendous rapes and assaults that she allegedly suffered at the hands of the father consistently from the commencement of the relationship in 2014 until separation late 2020. These allegations are set out across Court Book (CB) pages 863 to 928 under headings for each year.
I will refer to a few instances deposed to in her affidavit.
In her trial affidavit the mother alleges that in early 2014 at the commencement of the relationship, she was being brutally raped and assaulted on a regular basis and that one of those rapes resulted in the conception of X.[1]
[1] CB 862-866, mother’s trial affidavit [13] – [27].
She further deposes in her trial affidavit, that in early 2015 the father raped her daily over a four day period, often in front of the child, who she says slept through these incidents.[2]
[2] CB 883, mother’s trial affidavit [148].
It is alleged that in late 2015 that the father raped the mother after she asked why he did not go on Centrelink, given that he was apparently then unemployed.
It is alleged in the mother’s affidavit that the mother alleges that the father sodomised her in the kitchen and put a knife to her throat and threatened her.[3]
[3] CB 897, mother’s trial affidavit [171].
I am not making these references to these events gratuitously. These are a few of the numerous matters that have been raised by the mother. The mother has filed two affidavits where these matters are outlined.
In the second affidavit, the mother annexed text messages which had been allegedly written by the father from 2017 through to 2020, wherein he is making extreme threats, making references to killing the mother - violence of the most extreme kind. The text messages contain no reference to the date or the time that they were sent.[4]
[4] CB 1003 onwards, annexed to the mother’s trial affidavit.
It is curious that those text messages were not referred to in the first affidavit, given they were apparently in existence when the first affidavit was prepared and filed. The father in his affidavit in reply has denied sending those text messages, and annexed to his affidavit a different set of text messages between the parties in that same period.[5] They contain no threats and are benign in nature.
[5] CB 358 onwards, annexed to the father’s trial affidavit.
An aspect of this case which is of concern to the Court is that the medical records, which were subpoenaed by the independent children’s lawyer and the solicitor for the father, showing that she regularly attended C Medical Centre, a local medical centre and had a longstanding relationship with a particular doctor who she saw very regularly over a number of years and she did so without the father being present.
There is no reference in any of the notes from the local medical centre or the emergency rooms at D Hospital which she also attended of the mother being subjected to the violence that she has alleged which was alleged to have injured her. Instead, she complains of things like hay fever, and depression because she was having issues with her elder son.
In early 2014, when she has deposed that the father has brutally raped her on a regular basis, resulting in the conception of X, the mother attended the hospital and complained that her period was late, but made no reference of rape or family violence.[6]
[6] CB 461, subpoenaed notes from Suburb E Health Care; CB 866, mother’s trial affidavit [29].
She has again attended hospital in mid-2014, and the pregnancy was confirmed, but there was no mention of rape or family violence, and it is recorded that she told her GP that the father was “a good man”.[7] She did so without the father being present.
[7] CB 632, subpoenaed notes from the L Hospital.
Another instance of the disparity between what she reports has occurred and the information that she has provided to her GP at Suburb E Medical Centre is that in early 2019, the mother reported in her trial affidavit repeated sexual assaults and beatings, which caused her to have difficulty walking for four days. [8] She then attended her general practitioner in early 2019 and complained of a superficial laceration, but made no reference to family violence or injuries brought about by that violence.[9]
[8] CB 919, mother’s trial affidavit [244].
[9] CB 446, subpoenaed notes from Suburb E Health Care.
Importantly, the mother attended her general practitioner in mid-2019 and complained of suicidal ideation, but when asked whether family violence was occurring, she denied that it was.[10]
[10] CB 538, subpoenaed notes from K Hospital.
In her affidavit, the wife describes going on a holiday with the father and the child to Country F for seven nights.[11] She alleged that when she was there that she was brutally raped, beaten and sodomised every day. When she returned to Australia, she attended her GP and complained of hay fever.[12] This was an attendance with the mother in the absence of the father.
[11] CB 923 mother’s trial affidavit [270] – [271].
[12] CB 442, subpoenaed notes from Suburb E Health Care.
I mention the father’s absence because in her affidavit, the mother explains why she made no reference of family violence to the hospital staff during her pregnancy check-ups because the father made sure not to leave her alone with the staff.[13]
[13] CB 866, mother’s trial affidavit [31]-[33].
In mid-2020, the mother deposes that the parties separated and that she confided in a person, Ms G (who has not been called to give evidence), that the father threatened that he would:
…come home right fucking now and I’m gonna fucking kill you slowly and I’m gonna fucking enjoy every fucking minute of it! Then I’m gonna fucking blow the kids and your fucking grandchild’s fucking brains…[14]
[14] CB 868, mother’s trial affidavit [44].
The mother gives evidence that the father then returned to the house, and she bolted the doors and windows. She saw the father smashing the security screen door, and then he got into the house through the ceiling by removing roof tiles. She alleges he threatened to kill her, and then raped her. She said that X was in the home at the time, and allegedly heard the mother’s screams. [15]
[15] CB 870, mother’s trial affidavit [47]-[54].
In mid-2020, the mother attended her GP and reported that she initially wanted to marry the father, but no longer does due to “minor differences”. She made no reference to family violence.[16]
[16] CB 439, subpoenaed notes from Suburb E Health Care.
The medical records all contain histories taken by psychiatrists who attend upon the applicant and those records make no reference to family violence perpetrated by the father.
It is alleged by the mother that in mid-2020, the father went to a friend’s christening and that she had to stay home because she was in so much pain after being raped she could not walk.[17]
[17] CB 895, mother’s trial affidavit at [163].
In mid-2020, the mother attended her GP that she feels suffocated in her relationship, but does not know why. She made no reference to family violence.[18]
[18] CB 438, subpoenaed notes from Suburb E Health Care.
There is a significant disparity between the allegations that have been raised by the mother, who is an educated person and was apparently carrying on practice as a health professional, and what she tells the medical practitioners who are treating her. This is against her background in health service provision, and her being a published author of a book about abuse in relationships. I appreciate that well educated and qualified people are just as susceptible to family violence as any other person, however what is alleged here is long term, high level violence.
There was an incident of family violence which became the subject of proceedings in mid-2020, and an IVO was taken out. The mother alleges that the father attended the house, grabbed her and pushed her into the bedroom, blocking the doorway. She says that it happened in the presence of a friend, Ms G, who I have referred to earlier, and in the child’s presence. The father alleged that all that occurred was that he tried to give the mother a cuddle and a kiss on the cheek.[19]
[19] CB 81, father’s trial affidavit [86] - [88].
The mother reported the incident to the police and the father was charged with assault. He did not attend the Court hearing in relation to the IVO, nor did he attend the hearing in relation to the assault charge. He has given evidence that he was not aware that the hearing was proceeding. On that occasion, he was found guilty of assault, but there was no conviction recorded and he was fined.
There is no allegation of any subsequent breach of that family violence order or any subsequent allegations of family violence to date.
There is quite a disparity in the accounts given in relation to events in mid-2020. I note that Ms G, who is alleged by the mother to have witnessed the event, had not been called to give evidence.
This is an interim hearing. I do not have to make a determination on any final basis and I do not purport to make any findings on a final basis about the matters raised.
Having said that, I am concerned that the mother has made these grave allegations against the father about extreme violence resulting in physical injury which do not appear to be supported by independent medical evidence from her own treating doctors and she has not appeared to give evidence. There may be explanations for the discrepancies that have been highlighted, but the mother has not appeared to explain those.
I note that the father has subsequently re‑partnered and has been in an established relationship with his partner, Ms H, for about two years. She has three children who are of school age. She has given detailed evidence about her relationship with the father. She is aware of the allegations that have been made against him in the proceeding, and has given comprehensive evidence that she has not experienced any behaviour from the father which would constitute family violence.
The question is what the Court can reasonably do now, given that the mother has not participated in the proceeding and has left the country with the child.
In making these orders, I have regard to section 60CC of the Act, including matters set out in subsections (2) and (3) of the section. Sections (2) provide that:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Act provides under section 60CC(2A):
In applying the considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in paragraph (2)(b).
There are a series of other additional considerations that the Court has to have regard to. I do not have to have regard to all of those in this interim hearing, but I am cognisant of them and I will make reference to those that are relevant.
Turning back to those primary considerations, in my view the mother has acted in a way by unilaterally removing the child from the jurisdiction, which undermines the benefit of the child having a meaningful relationship with the father.
In relation to subsection 2(b), the need to protect the child from physical or psychological harm, in my view there is a real risk to this child of being exposed to physical or psychological harm, given the matters that I have raised in relation to the mother’s conduct over a period, and in relation to the allegations that she has made about the father, which are simply unsupported by contemporaneous medical evidence.
There is no evidence from any notes or any medical records that the father has sought to hurt the child, or that he has injured the child whilst the child has been in his care. I note that whilst the mother has alleged that he is an abusive person who has abused her and the child, she then left the child in the father’s care whilst she travelled overseas to holiday in Country J.[20]
[20] CB 77, father’s trial affidavit [60].
The mother claims that in fact when she was away in Country J that she left the child with Ms G, who was also in the family home with the father. However, it is difficult to square that evidence with the allegations that she makes about the father’s abusive conduct.[21]
[21] CB 933 mother’s trial affidavit at [300].
In terms of the family violence order that applies, the family violence order was not extended and there is no allegation that the father has committed any family violence since the incident resulting in the order in mid-2020.
I think it is important that if the child is returned to Australia, the child be returned to the father. He is in a position to support the child. I note he is in a stable relationship with his partner who has children. I am concerned for the wellbeing of the child in the full time care of the mother given the matters that have raised by the ICL.
I do not accept that there is evidence of risk to the child such as to mean that some other form of order should be made, whereas I think that there is evidence of risk to the child if an order of the kind that I am making was not made.
As was raised by the ICL, there is a serious issue in the case as to the mother’s attitude to the child and to the responsibilities of parenthood.
I also note that because it may become a Hague Convention matter, it might be transferred to another judge. That judge will have a copy of these reasons. The parties should be aware that any judge who takes over the case will have the benefit of the submissions made today, and be aware of the reasons that I have given.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 20 October 2022
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