Paterson & Hamdy (No 3)

Case [2023] FedCFamC1F 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Paterson & Hamdy (No 3) [2023] FedCFamC1F 629

File number: SYC 1229 of 2018
Judgment of: BRASCH J
Date of judgment: 31 July 2023
Catchwords: FAMILY LAW - PARENTING – Where children have not seen or spoken with the father since 2016 – Where father convicted of and jailed for offences – Where children express strong views to not see the father – Where children’s views remain unchanged over three Family Reports – Where mother is the unchallenged residential parent – Where father claims mother has brainwashed the children regarding their views of the father – Where one child turns 18 years soon – Where dispute ultimately concerns younger child   
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 61DA, 61DA(4), 65D(1), 65DAB

Cases cited:

Cotton & Cotton (1983) FLC 91-330

G & C [2006] FamCA 994

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Line & Line (1997) FLC 92-729

Loddington & Derringford (No 2) [2008] FamCA 925

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

R & C [1993] FamCA 62

Re Andrew (1996) FLC92-692; [1996] FamCA 43

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Vigano & Desmond [2012] FamCAFC 29

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 158
Date of hearing: 1–4 May 2023
Place: Sydney
Counsel for the Applicant: Mr Duc
Counsel for the Respondent: Ms Druitt
Solicitor for the Respondent: John Spence & Associates

ORDERS

SYC 1229 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PATERSON

Applicant
AND:

MS HAMDY

Respondent

order made by:

BRASCH J

DATE OF ORDER:

31 JULY 2023

THE COURT ORDERS THAT: 

1.The mother has sole parental responsibility for the children, X born 2005 and Y born 2010 (“the children”).

2.The children live with the mother.

3.The children have no contact, spend no time with and have no communications with the father.

4.Until Y born 2010 turns 18 years of age, being 2028, the father is restrained and injunctions hereby issue restraining the father from:

(a)assaulting, molesting, harassing, denigrating or abusing the mother or either child;

(b)approaching or being within 200 metres of either child or the mother;

(c)being within 200 metres of any school that either child attends;

(d)being within 200 metres of the mother’s residence;

(e)being within 200 metres of the mother’s or child’s place of employment;

(f)contacting or responding to the children by any means whatsoever including but not limited to electronic means, social media or through any third party, other than as specifically provided for in these Orders;

(g)contacting the mother by…

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AGLC
Paterson & Hamdy (No 3) [2023] FedCFamC1F 629
Case
[2023] FedCFamC1F 629
Decision Date

CaseChat Overview and Summary

The case of Paterson & Hamdy (No 3) involves a dispute between Mr Paterson (the father) and Ms Hamdy (the mother) regarding the children's contact with their father. The mother seeks to prevent the father from contacting or approaching the children until the youngest child turns 18. She also requests orders to obtain passports for the children without the father's signature and permission to travel with the children outside Australia. The father, currently incarcerated, argues for contact with his children. The Family Court of Australia was tasked with deciding whether the children should have contact with their father, considering the children's best interests and the father's criminal history and current incarceration.

The legal issues central to this case include the interpretation and application of s 60CC(3) of the Family Law Act, which mandates that the court consider specific factors when determining the best interests of the child. This involves assessing the children's views, the capacity of each parent to provide for the children's needs, and the benefit of the children having a meaningful relationship with both parents. The court had to weigh these considerations against the father's criminal history and the children's expressed desire to have no contact with him.

The court found that the children, X and Y, had firm and steadfast views against having any relationship with their father, a reality the father struggled to accept. The court recognised the father's right to appeal his convictions and sentence but noted the absence of evidence to support the father's claims that the children were being influenced or manipulated by the mother. The court concluded that ordering contact between the children and their father could have a detrimental impact on the children, particularly Y, who had expressed a desire for a stable and peaceful life without further hospital visits. Given the father's criminal history, current incarceration, and the children's clear opposition to contact, the court determined that it was in the children's best interests to maintain the status quo, with no contact with their father.

The court ordered that the father be restrained from contacting or approaching the children until Y turns 18, that passports for the children be issued without the father's signature, and that the mother be permitted to travel with the children outside Australia without the father's consent. These orders reflect the court's determination that maintaining the current situation is in the children's best interests, considering their well-being and the father's inability to provide a stable and safe environment for them.

Orders

Orders of the court

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Background

Background to the litigation

The mother’s case is that the children have no time and communications with the father at all. She sought a range of injunctions, until Y turns 18 years, restraining the father from, inter alia, approaching or contacting them. The mother also sought orders to obtain passports for the children without the need for the father’s signature, and, orders permitting the mother to travel with the children outside of the Commonwealth of Australia.BACKGROUND Ms Hamdy (“the mother”) was born in 1969. Mr Paterson (“the father”) was born in 1971. The father says the parties commenced their relationship in 2003 and married in 2004. In 2004 the father says the parties moved to City J where he was working. In 2005 the father says the mother returned to Australia after the father identified mental health issues for the mother. Two months later the father returned to Australia after, he says, the mother gave him an ultimatum to return, or not see the children – but no children were born at this stage. The mother denies this. I do not need to decide this. Instead, for whatever reason, the parties ended up back in Australia and then had a full-time marital relationship according to the father, or an on‑again-off-again relationship according to the mother. The father said the parties then lived in various locations including: Perth, Western Australia; Region K, Queensland; and, multiple locations in New South Wales being Suburb L, Suburb M, Suburb N and Suburb P. The mother denied she lived with the father in any of these locations but would take X and Y to visit the father. I also do not need to decide this save that I accept that the children had a relationship with their father in this period. The father asserts the parties separated on a final basis in July 2017. The mother said final separation was in July 2015. I do not need to decide when they separated. The reality is the father was incarcerated in 2015 and the children have not seen or spoken to him since 2016 (Exhibit 3, paragraph 5). Between 2015 and 2019, the father was incarcerated for “small […] allegations and charges”; see father’s Case Outline at page 2. I appreciate a Case Outline is not evidence, but it is akin to a submission and one that minimises why the father was jailed. The father, not his legal representative, signed the Outline. The father was in fact convicted of several serious charges. The father was sentenced to:…an aggregate term of imprisonment […] to commence [in] 2015 and expiring [in] 2021 with a non-parole period […]. The offender is first eligible for parole [in] 2019. The offender is to be released to supervised parole when the non-parole period expires…(Exhibit 8, p.1). The father was very quick to answer, as often as he could (even if non-responsively), that he had leave to appeal both the convictions and the sentence. He was invited to produce documents to support that and was given overnight to do so. The documents produced (Exhibit 10) reveal the father was granted one extension to appeal out of time in mid-2018. The extension to file was extended to late 2018. Later that month, the Registrar of the Court of Criminal Appeal refused leave to file an appeal out of time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I must also consider the impact on the unchallenged residential parent, the mother, if I made orders for Y to spend time with the father. I will consider the mother’s position under capacity to parent.Section 60CC(3) – Additional Considerations The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act to consider how they should give effect to either or both of the primary considerations in order to determine the child's best interests. I set these out in turn below.(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; The children have expressed firm and steadfast views in the three Reports before me (Exhibits 1 – 3), including the recent Specific Issues Report dated 27 January 2023. I have already set out some of their views at the start of these Reasons, which can be easily summarised - they want court to end and they do not want a relationship with the father. The father was asked about Y’s views and whether at 13 years of age, his views ought count or not. The father said Y was being brainwashed by both the mother and by hearing the mother and X talk about the father, for example; “he sits in the car and hears what is going on”. When asked the basis for that assumption, he said it was “what I can imagine”. In other words, he had no evidential basis for his bald assertion. The father was asked if he thought Y was being untruthful when he told the report writer earlier this year, “I don’t remember him, who is my dad I don’t even remember anything about my father I don’t remember what he looks like”. The father replied the child had been brainwashed. The father was asked how he knew that when he had not seen the mother or the children for such a long period. He replied, “I know the mother”. The father also believed the children said what they did to the Report Writer because the mother told them to say certain things for reward. The father had nothing but speculation to advance that proposition. The father would not, or could not, accept that irrespective of how the children came to their views, the children nevertheless had firm and unfaltering views that they do not want to see the father and that is their reality. The idea of the children’s own reality or the children’s own narrative was something the father was unable to accept or even acknowledge. Similarly, the father could not accept that if the children’s reality or narrative about him was as described in the three Reports, then, an order for time or even supervised might have an adverse impact on the children, or Y in particular. The father was “100%” rejecting of the idea that Y said if he had a magic wand, court could finish and he would not see the father. Y also said that he wants a good life and no more hospital (in relation to his health issues). The father accepted the child did not want any more hospital, but could not accept the child wanted a good life. The father did not consider the child to be a judge of what constituted a good life. That might have been so when the father last saw the child when five years old, but he is now 13. The father added the child does not, in fact, have a good life at all with the mother. This is in circumstances where the father proposes the children live with the mother.