Perrine and Joffe

[2019] FCCA 1865

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRINE & JOFFE [2019] FCCA 1865

Catchwords:
FAMILY LAW – Parenting dispute – short marriage characterised by extremely serious family violence perpetrated by the Father on the Mother – children seeing this violence and remembering it – children of mature years and not wishing to see their father – Father continuing to minimise and deny his violence – orders made for the children to live with the mother and spend time with the father if they decide they wish to do so.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR PERRINE

Respondent: MS JOFFE

File Number: DGC 3024 of 2017

Judgment of: Judge Burchardt

Hearing dates: 17 & 18 June 2019

Date of Last Submission: 18 June 2019

Delivered at: Dandenong

Delivered on: 26 July 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Howe

Solicitors for the Respondent: Hartleys Lawyers

ORDERS

1. The mother have sole parental responsibility for the children [X] born … 2002 and [Y] born … 2004 (“the children”).

2. The children live with the mother.

3. The children spend time with the father in accordance with their wishes if in the future they decide they wish to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3024 of 2017

MR PERRINE

Applicant

And

MS JOFFE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of two adolescent children, [X], born … 2002, and [Y], born … 2004.  The applicant father, who was self-represented, appeared from time to time to put slightly different positions to the court.  On more than one occasion, he said words to the effect (his submissions and evidence were conveyed through a Country F interpreter) that he just wanted to see his children one day or just glance at them.  On other occasions, he appeared to suggest that the children were not safe with the mother, as a result of her mental ill health.

2. The mother’s case can be stated shortly.  She says she is terrified of the father, because of the family violence committed against her during the marriage, and that the children’s wishes (they have expressed a lack of desire to see the father) should be acceded to. 

3. For the reasons that follow, it is abundantly clear that the orders sought by the mother, which were supported by the Independent Children’s Lawyer until his late withdrawal from the proceeding, are those that should be made.

The parties’ affidavit material

1. The father initiated his application on 20 September 2017, in which he was essentially seeking a location order.  In his affidavit in support, the father deposed to the dates of birth of the children.  He went on to detail the marriage on … 2000 and a subsequent move to United Kingdom, which he also dated as … 2000.  He deposed that the parties arrived in Australia in 2015 and separated on 6 November 2015.  The affidavit deposed that owing to his ill health (he has ischemic heart disease and diabetes and had cardiac bypass surgery in 2010, together with three heart attacks), he did not work and the mother worked during the relationship.  He deposed that he was the primary carer, but the affidavit revealed that he had not seen the children since the date of separation.  He deposed to the events that led to separation on 6 November 2015.  And at paragraphs 29.4-29.6 deposed:

   She was walking towards me in anger so I just pushed her and she started to shiver and fell unconscious for 2 seconds.

   I tried to pick her up and sprayed water on her to regain her conscious.

   She woke up and said that she fell unconscious as she did not have enough sleep the previous night, stressed about the function for the … 2015.

2. The husband deposed to having completed his anger management course and the Community Corrections order imposed by the Suburb A Magistrates Court on 16 March 2016.

3. The wife’s responding affidavit is notable because it paints a completely different picture of the early childhood of the children.  She deposed to her date of birth, … 1974, and that of the father, born … 1966.  She deposed to the arranged marriage in 2000, and the dates of birth of the children.  Where her account differed markedly from that of the father, and this version was not challenged when she gave evidence, is that in 2003 she moved to Country B to work and remained there until 2004.  While she was in Country B, the maternal grandparents were taking care of the children in Country G, where the father remained but did not spend any time with the children.  The mother returned to Country G in 2004, but moved to England in 2006, and the maternal grandparents continued to look after the children.  In … 2009, the father and children joined her in England, but in late 2013 they separated, the children remaining with the mother and the father going to United Kingdom.  In … 2014, the wife applied for a skilled visa to come to Australia, but the father and children were included on the application.  They arrived in Australia in 2015.  This narrative, which I repeat was not the subject of challenge, would suggest that the marriage in real terms was very substantially less than one would otherwise have assumed, and that the children were substantially brought up by their maternal grandparents, at least until 2009.

4. The wife’s affidavit went on to depose to serious episodes of family violence throughout the relationship, including a significant assault in September 2015.  The mother also deposed to a significant assault upon her on 6 November 2015.  And she annexed as J1 an extract of the criminal proceedings on 16 March 2016 at Suburb A Magistrates Court.  It is clear from that extract that the husband was convicted of unlawful assault and threats to kill, to which he pleaded guilty, and in respect of which he was placed on a Community Corrections order for 18 months. 

5. On 10 April 2019, the wife filed an affidavit from Dr C, psychiatrist, which relevantly confirms the wife’s affidavit assertions as to suffering from post-traumatic stress disorder.  A further report from Dr D annexed to her affidavit filed 5 June 2019 also provides support for the ongoing psychological sequelae that the mother has experienced as a result of the assaults upon her.

Other materials

1. A letter from the Department of Health and Human Services, dated 30 August 2018, written in response to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother, relevantly notes that [Y] confirmed to departmental officers that there was family violence, that he felt safe and had no desire to see the father, whom he had not seen for three years.  [X] advised that after the Intervention Order was obtained, she felt much safer and had no desire to see him.

2. It should also be noted that the report described the mother advising that since she had left the father, her mood had been fluctuating and that she had been diagnosed with bipolar and post-traumatic stress disorder.

3. It should be noted that despite this disclosure, to which it will be necessary to return, there is no medical evidence to support the diagnosis of bipolar, although, as earlier indicated, there is evidence of post-traumatic stress disorder. 

4. A section 11F conference was ordered and took place on 23 May 2018.  Relevantly, for these purposes (both parents have put their positions very much as they did in their affidavits), both children presented as articulate and mature.  The reported noted:

   Both children recalled witnessing frequent violence perpetrated by their father against their mother.  Both described this as having become quite normalised for them and that they had not understood the gravity or extent of what was occurring until sometime after the separation.  [X] and [Y] both said that the most serious and frightening incident was seeing their mother hit by their father and ending up on the floor, apparently unconscious.

   [X] and [Y] each said they could recall very frequent arguing between their parents, with both yelling at each other – but primarily the father.  [X] said she witnessed both parents hitting each other also.

   Both children declined to meet their father.

5. The court also has the benefit of the family report from Mr E dated 24 May 2019.  I have, of course, read the whole of the report and have regard to its terms.  I note the father stated (paragraph 48) that it had always been a happy home.  He also stated that the children had been brainwashed into the accounts that they had given (paragraph 51) and blamed the mother’s alleged bipolar disorder for past difficulties (paragraph 52).  The father sought that the court force the children to see him (paragraph 55).

6. I note that [Y] confirmed violence on the father’s part (paragraph 52) and that at paragraph 66 he did not wish to see him, although at paragraph 67:

   He also stated that if his father was in a life-threatening situation and got into an accident or something (illness) … then I would want to see him.

7. [X] also confirmed (paragraph 76) that the father had been abusive to the mother and that she did not wish to see him (paragraph 77).

8. The paragraphs 89 to 90 noted:

   The children reside with their mother in transitional housing and attend the local high school.  Their extended maternal family live nearby and it appears they have and enjoy, regular and close contact with grandparents, aunts and uncles and cousins.  The family is also closely attached to the local church and attend regular meetings as well as other programs.

   The children have had no contact whatever with their father since separation in November 2015.  The mother and children were assisted by the domestic violence network into safe housing.  The mother alleges significant domestic violence where she sustained significant injuries and feared for her life.  She also alleges the children were subject to, as well as witness to, significant family violence.  The mother’s account is detailed in affidavit material.  She states she remains in fear of the father and continues to have a safety plan in place should such be needed.

9. At paragraph 96, the report continued:

   In the present interviews with the writer, the children still carried memories of the violence and the control on the family by their father.  They did recall positive memories as well but were clear in their thoughts that they were doing well in their lives, that they felt very much enmeshed in their extended family (something that was difficult with their father) and that they and their mother were ‘getting on with life’.  Neither child expressed the wish to see their father, with [Y] still articulating some fear, [X] more sadness.  [Y] was concerned if the father was seriously ill or had an accident that he would wish to know and make contact then.  Both children also expressed the thought that they may reconnect in the future, but they had no wish to do so at this time.

10. The report went on to recommend that significant weight be given to the children’s wishes and noted the difficulties (paragraph 103) arising out of the father’s abject denial of violence and the blame he still casts on the mother as a result of her mental health.  The report recommended that the children live with their mother and spend time with their father according to their wishes.

The evidence and submissions made given at court

1. What follows is taken from my notes.  It is not a transcript.  It reports matters I find significant. It should be noted that the Independent Children’s Lawyer had at one stage adjourned the proceeding to seek leave to withdraw because his wife was in labour.  Both counsel for the mother and Mr Perrine expressly agreed to the matter proceeding without his continued participation, especially in circumstances where, as I pointed out, the Independent Children’s Lawyers’ position was entirely congruent with that of the mother.

2. The father, whom I repeat was self-represented, said through the interpreter that he just wanted to see his children one day.  He said he was a heart patient and wanted to just glance at the children.  The mother has her own family and the children were not safe with her.  The father then, following some equivocation, indicated he wished the trial to proceed when it was explained he could not see his children in the face of the mother’s opposition without a trial. He said in opening that he wanted one chance to see the children under supervision.  He is mentally broken because he not been able even to glance at his children.  When sworn, he adopted his affidavit as true and correct.  He said he had not known that the mother had bipolar before.  She had hurt him and the children.  The incident in 2015 was not a major thing. 

3. Under cross-examination by counsel for the mother, the father confirmed that he had read the family report.  He was aware the children did not want to see him.  He said he was like a mother to his children who had been brainwashed.  His wife had been violent to him many times.  It was put to him that he had been convicted of an assault against the mother and he confirmed this was arising out of the incident in November 2015 when he was reported to the police.  It was put to him that he had pleaded guilty to an assault and threats to kill but the father said they asked him to plead guilty. He did not have enough money to fight the case.  He blamed his lawyer.  When it was put to him that he was now denying the assaults to which he had plead guilty, the father’s response was, I regret to say, impossible to understand but clearly prevaricating in its nature.  When it was put to him that the mother had been rendered unconscious during this incident, the father said that she came to hurt him and he pushed her and she fell down.  She was up in one or two minutes.  He blamed the mother entirely.  He accepted, however, that he had been placed on an 18-month CCO.

4. When counsel put it to him that he had pleaded guilty to threats to kill, the father initially failed to answer but, ultimately, grudgingly conceded that this was so.  He said he had not known about the mother’s PTSD before.  He did not know she had a mental disorder.  He got this information from the DHHS.  He did not accept any responsibility for the wife’s PTSD.  He was aware of the PTSD from the DHHS report.

5. When it was put to him that the wife had an acquired brain injury, the father said that after the incident he found out nothing.  He did not say the report was a lie.  She had been gone from him for three years.  He last saw the children on 6 November 2015.

6. When asked why he did not apply to court for time with the children until November 2017, the father said the Suburb A Court gave him permission for messages, but no one responded.  The Intervention Order was one year.  He thought the children would come back to see him. 

7. The father said he was a permanent resident of Australia, but conceded upon questioning that his residence is up for review at the end of this year.  Counsel put it to him that the court application was to support his permanent residence application, but the father said he had been reviewed and had already got it for another five years.  The review was two months ago.  When it was put to him that he had told immigration he was seeing the children, to enable him to stay in Australia, the father’s responses were evasive.

8. The father was cross-examined about the family violence he was said to have perpetrated and the courses he had undertaken to address this.  He had undertaken two counselling and two men’s behaviour courses.  He had looked after the children for three years.  The mother’s family and his wife had brainwashed the children.  The mother was very much influenced by her family.  He was really sure that the children did not tell things from their hearts.  Their father was not with them, but only the mother.  He had not told the children about family violence.  He said this was a small issue, blown up too big.  There was a small push when she was charging towards him. 

9. In re-examination, the father said it was a very happy family and he would like to see the children once before he dies.  He has only his children in his country.  The wife’s family made up these stories, but he is by himself.  He expressed a fear as to his future, in the light of his heart problems.

10. Counsel for the mother made a brief opening.  The mother had endured domestic violence with the father and had PTSD and an acquired brain injury as a result.  She cannot work.  The children saw the violence and their views should be given weight.  They do not want to see the father.  [Y] has said that if the father was critically ill, he would want to see him, and had told this to the independent children’s lawyer also.

11. The mother was called and adopted her affidavit as true and correct.

12. The husband cross-examined through the interpreter.  He was at times labile and at all times in a state of heightened emotion.  He put it to the wife that it was a small push only.  The wife said she was unconscious on the floor and could not remember how long.  The children went to school.  The father put his version that it was a push and she fell down unconscious for two to three seconds and had then said she could not sleep, but was fine.  The mother’s answer was that he was minimising the incident and she stood by her affidavit.  She was tired, but he got angry.  He had placed a hand on her neck.  The mother said that she was telling the truth and that she was a strong believer (I took this to mean in religious terms).  It was put to her that she had bipolar disorder, but she said she had PTSD.  The father put it to her that she was teased by her family for having no brain.  The mother says she does not have bipolar, but does have PTSD.  It was traumatic and extreme violence.

13. The evidence of Mr E adopted his family report as exhibit G1.  Counsel for the mother did not cross-examine.

14. The father put it to Mr E that the department has said the mother was bipolar.  Mr E said the DHHS report mentioned bipolar, but there was no formal diagnosis.  He was aware it might apply.

15. The father put it to Mr E that what the children had said about him pushing the mother was not genuine.  Mr E said the children were mature enough and independent enough to express their own opinions.  He was of the view there had been no coaching or brainwashing by the mother. 

16. In Final Submissions, counsel submitted that the mother seeks time as agreed, subject to the children’s wishes.  They have not seen the father for four years.  There was domestic violence, with a conviction, which the father minimised.  The children saw it.  The children want nothing to do with the father, save [Y] in the case of an emergency.  The mother sought an order for sole parental responsibility.  There was a very clear family report.  The children were not brainwashed and were mature enough to express genuine wishes, which were clear.  It would be traumatic for the mother to have the father back in her life, given her PTSD and acquired brain injury.

17. The father said in closing that he feared the children were not safe with the mother, because of her bipolar condition.  The allegations of a brain injury were not relevant, because nothing happened.  He would like to see the children at least once before anything bad happened to him.

Findings as to the facts

1. It is well-established that it is generally undesirable and should be avoided for the court to make findings that may be hurtful to or unduly critical of a party.  Most unfortunately, this is a case in which that cannot be avoided. 

2. The facts of this case are abundantly clear.  I should say straight away that although both the father and the mother were not in the witness box for a great length of time, and that the evidence was complicated by interpretation (I finally had to cease cross-examination, as it was becoming too chaotic), each of the two primary witnesses made a very strong impression on me.  Even in the short time he was in the witness box, the father impressed me as being a completely unbelievable witness.  Not only were his answers often prevaricating or evasive, everything he said and the way in which he said it suggested to me that he was not truthful.  The mother, by way of contrast, gave her evidence in a fashion I found compelling.  Her answers as to being truthful and a believer were given with a palpable sincerity and conviction, and I accept them. 

1. This, however, is only part of the story.  All the objective evidence roundly supports the mother’s version of events.  There is no possible doubt that the father pleaded guilty to the assault on 6 November 2015.  He pleaded guilty to threats to kill also.  His attempts to explain it away now are completely unconvincing.  The father blames the mother for everything that has gone wrong and says that she has bipolar disorder.  There is no formal diagnosis of bipolar disorder.  Furthermore, there is formal diagnosis of PTSD and an acquired brain injury.  It is absolutely apparent that the wife’s version of events is supported by independent evidence.

2. Were this not enough, the views of the children are entirely clear.  I accept Mr E’s evidence that the children were not brainwashed or encouraged to say what they said to him, but rather they were expressing their considered and, given their ages, mature views. 

3. In the circumstances of this case, I have not the slightest hesitation in finding, notwithstanding the applicable relevance of section 140 of the Evidence Act, that contrary to the father’s position, it was not always a happy home.  There was significant and ongoing family violence during the relatively short periods of time that the parents lived together, most particularly towards the end of the relationship.  I have no doubt that the father assaulted the mother in September 2015 and in November 2015.  These assaults took place in the presence of the children, who remember them.  The children are, to an extent, scared of him and are quite clear that they do not wish to see him.  His endeavours to explain the violence away and/or minimise it and/or attribute it to the mother is one that I entirely reject.

4. There is no reason whatever to doubt that the mother remains terrified of the father and that any reintroduction of him into her life, even at a distance through the children, so to speak, would be deeply traumatic for her.

The statutory pathway

1. Having made these findings, I turn to the statutory pathway.  The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. There is no question but that the mother should have sole parental responsibility.  The children have not seen their father for well over three and a half years, and do not wish to do so, and are of mature years.  In these circumstances, it is immediately apparent that the mother should have sole parental responsibility.  The presumption is, in any event, entirely rebutted by the father’s family violence. 

The primary considerations

1. It is extremely questionable whether seeing their father would be of benefit to the children, given that they do not wish to and given the history of this matter.  Furthermore, the need to protect the children from the risk of exposure to family violence is significant, given the father’s past history of family violence and his continuing and total denial of it.  This factor requires to be given greater weight, in any event, pursuant to section 60CC(2A).

The additional considerations

1. I do not propose to traverse each of the matters in section 60CC(3) individually.  It is not necessary or appropriate to do so, given the extraordinary findings that this case gives rise to.  In circumstances where the father has been as violent as he has, and where the mother has significant and serious health problems as a sequela, where the children have not seen him for three and a half years and do not wish to do so, and are of mature years and have expressed their wishes clearly, it is apparent, without belabouring the matter further, that the orders sought by the mother are the orders that are in the best interests of the children.  The children should live with the mother and the father’s time should be reserved, and the children should spend time with the father in accordance with their wishes, if they ever should wish to do so.

2. I will make final orders accordingly in these terms.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 26 July 2019