Pretorius and Lemaire
[2017] FCCA 3240
•21 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRETORIUS & LEMAIRE | [2017] FCCA 3240 |
| Catchwords: FAMILY LAW – Application for summary dismissal of father’s case – ongoing litigation since 2011 – father still wholly lacking insight as to his abusive behaviour – family report entirely adverse to father – father facing deportation to (country omitted) in any event – father’s Response dismissed. |
| Legislation: Evidence Act 2008 (Vic), s.140 Federal Circuit Court Act of Australia 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), r.13.10 Federal Court of Australia Act 1976 (Cth), s.31A |
| Blair v Curran [1939] HCA 23 Jefferson Ford Pty Ltd & Ford Motor Company of Australia Limited and Ors [2008] FCAFC 67 |
| Applicant: | MS PRETORIUS |
| Respondent: | MR LEMAIRE |
| File Number: | PAC 5160 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ruffin |
| Solicitors for the Applicant: | Ruffin Lawyers |
| Counsel for the Respondent: | Mr Lemaire, In Person |
| Counsel for the Independent Children’s Lawyer: | Mr Lynch |
| Solicitors for the Independent Children’s Lawyer: | Peter Lynch |
ORDERS
All extant parenting orders be discharged.
The mother have sole parental responsibility for the children [X] born (omitted) 2011 and [Y] born (omitted) 2011 (“the children”).
The children live with the mother.
The children spend no time with the father.
The father’s Amended Response filed 17 August 2015 be dismissed.
The appointment of the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Pretorius & Lemaire is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
PAC 5160 of 2011
| MS PRETORIUS |
Applicant
And
| MR LEMAIRE |
Respondent
REASONS FOR JUDGMENT
Introductory
On 28 November 2017, I set the matter down for hearing on 15 December 2017. I caused this listing because I was concerned, on the materials as they then stood in the file and in the light of the submissions made on that date, that Mr Lemaire might not have any reasonable prospect of successfully prosecuting his case within the meaning of either s 17A of the Federal Circuit Court Act or rule 13.10 of this Court’s rules. I caused a copy of both s 17A and rule 13.10 to be sent to Mr Lemaire to enable him to prepare himself for the hearing.
I note that on 28 November 2017, Mr Lemaire had expressed confidence that he would have been released from custody by the adjourned date, but this did not occur and Mr Lemaire was, therefore, heard by telephone.
A Very Brief Outline of the Matter
The father was born on (omitted) 1985 and the mother on (omitted) 1991. They met in (omitted) 2008 in (country omitted) and separated in Australia, to which they had then returned, in December 2010. The two children who are at the forefront of this case, [X] and [Y], were born on (omitted) 2011. Proceedings have been underway in the Court in one form or another since November 2011 and are still going strong. There have been no less than five family reports, a psychological assessment by Dr S and numerous court appearances.
From the start, it has been the father’s position that the mother has, unreasonably in his view, been seeking to exclude him from the children’s lives. He has pointed from time to time at alleged mental ill health on the mother’s part. By way of contrast, the mother’s position has uniformly been that the father is violent, is and has been violent to her, and continues to behave aggressively in his language towards her.
She has also raised, on occasions perhaps suspiciously contiguous to increasing the father’s time with the children, allegations of sexual abuse by the father on the children from time to time. These allegations are vehemently denied by the father.
Some Brief but Pertinent Matters in the Various Independent Reports
The Report of Ms A Dated 10 December 2015
This report inter alia noted an Intervention Order taken out against the father by the mother on 20 March 2015 and revelations on 17 March 2015 by the children to the effect that the father had indecently assaulted [Y]. These are part of the allegations vehemently denied by the father, as I have said.
I note that at paragraph 52, Ms A recorded:
Mr Lemaire admitted that he verbally threatened Ms Pretorius by saying words to the effect, that he would bring guys with him to ensure that she handed over the children at the next handover. In discussing this incident, Mr Lemaire conceded that this behaviour was inappropriate and illegal and he was consequently charged with this behaviour. He admitted it was an immature method to elicit Ms Pretorius compliance of court Orders. Mr Lemaire stated that he had attended a Men’s Behavioural Change programme to address his aggressive behaviours when he became frustrated.
The report noted at paragraph 75:
Mr Lemaire openly admits to regularly using aggressive language towards Ms Pretorius, particularly when he is frustrated with her behaviours, namely holding the children from him. During the interview, Mr Lemaire regularly used abusive language to express himself in an interview environment which was overall positive and productive. Given the writer’s exposure to Mr Lemaire’s aggressive language during the interview and his admission regarding his use of explicit language, it is accepted that Ms Pretorius is regularly exposed to family violence in this manner.
I also note that in the same report, paragraph 88, Ms A observed that [Y] referred to her father as “(omitted)”, a phrase used long-term by the maternal family to describe the father and noted the inappropriate and detrimental effects of such language. Ms A noted:
… Ms Pretorius has repeatedly stated in her affidavit material that she experiences difficulties in encouraging the children to spend time with the father during handovers while she openly refers to him as “(omitted)”. This behaviour demonstrates a significant lack of insight into developmental needs of young children.
The Report of Dr S
Dr S conducted a psychological examination of both parents. That of the mother was largely unremarkable.
In respect of the father, Dr S observed, at paragraphs 9 and 10:
Mr Lemaire has had previous charges in 2007 to 2008, associated with assault on the mother and he was found guilty without conviction. In 2002 to 2007, he had multiple charges for street racing, eleven for driving while disqualified and six for providing false details. Additionally, he reported that there were four assaults and one assault of a police officer and a wilful damage charge. I have not seen any criminal record or charge sheet to verify these issues. He reported in 2010 he left (country omitted) or he would have ended up in jail because of driving while disqualified. He was not incarcerated but was given a sentence which included five months of home detention due to the driving charges. His account is that he has had charges in Australia including using a telephone to menace in relation to the mother in 2015, and three indecent act charges. The matter was heard but dismissed. He remains on an Intervention Order. He has been arrested seven times. His account is that there are limitations on his contact with the mother.
Mr Lemaire’s account of the charges is that the mother hates him and wants him not to be involved.
At paragraphs 26 - 27, Dr S noted:
Overall, Mr Lemaire presents as a man with vulnerability to impulse control problems and boundary-breaking. His approach to his previous offences reflected minimisation and a lack of insight. It was indicated that he functions with a personality difficulty and possibly a personality disorder, with vulnerability to anti-social personality problems and substance abuse.
Parental risk rating was Moderate to High. Psychosexual evaluation has not been undertaken formally. Clearly, the allegations are of concern.
The Report of Ms A Dated 11 January 2017
Relevantly, Ms A noted at paragraph 41:
Mr Lemaire was supported during his interview by his partner, Ms B. The writer expressed concern regarding Mr Lemaire verbally abusing Ms B during their interview. He turned to her on approximately three occasions and told her to “Fucking shut up”. When this appropriate verbally abusive behaviour was identified by the writer, Mr Lemaire blamed Ms B for talking over the top of him when he was trying to explain himself.
At paragraphs 50 - 51 the report noted:
Mr Lemaire and Ms B explained that Mr Lemaire had recently been found guilty of assault in relation to an incident between Mr Lemaire and her ex-partner, the father of her children [C] and [D]. Mr Lemaire explained that Ms B’s partner was also found guilty of assault and that Ms B’s ex-partner had instigated this violent incident and justified his own behaviours.
As a consequence of his criminal behaviours, Mr Lemaire was sentenced to a 12 months’ Community Corrections Order, drug and alcohol counselling and men’s behavioural change program. Mr Lemaire stated that he had already completed these educational courses including a Post Separation Parenting Course and felt that he did not need to complete those courses again.
Having noted at paragraph 71 that the children have spent little recent time with the father, Ms A went on to note at paragraph 78:
Mr Lemaire openly admits to regularly using aggressive language towards Ms Pretorius, particularly when he is frustrated with her behaviours, namely holding the children from him. Given the writer’s exposure to Mr Lemaire’s aggressive language during his previous interview during November 2015 interview and his admission regarding his use of explicit language, it was accepted that Ms Pretorius was regularly exposed to family violence in this manner.
At paragraph 80, the report continued:
Despite these suggestions, it appears that Mr Lemaire has failed to address his abusive behaviours. During interview, Mr Lemaire was rebuked for his repeated verbal abuse towards his partner which he continued to justify...
The report went on to recommend that the children live primarily with the mother and that the father’s time be suspended until he was able to prove to the Court that he had addressed his aggressive behaviours and gained some insight into the same. Only thereafter was it recommended that Mr Lemaire be permitted even to pursue an application.
The Formal Position of the Parties
As things now stand, it is the mother’s application that the father’s case be dismissed, the children spend no time with him and that the mother have sole parental responsibility. The father seeks that the children live with him.
At this point it is appropriate to turn to the submissions made.
The Submissions of Counsel for the Mother
Counsel pointed to the fact that the father was formally seeking that the children live with him and that the mother’s time be reserved with the father having sole parental responsibility. In respect of the issue of sole parental responsibility, counsel pointed out that the mother has sole parental responsibility on an interim basis. She referred to the disclosures allegedly made in March 2015 as to abuse of [Y], but noted no charges had been issued.
Counsel pointed to the history of family abuse and verbal abuse, in particular. She submitted that the records subpoenaed showed 14 charges proven against the father for breaches of the Intervention Order since January 2017. The father is due to face Court in the Magistrates Court of Victoria at (omitted) on (omitted) with five further charges.
Counsel pointed to paragraph 78 of Ms A’s most recent report and the admissions therein made as to abuse. She submitted that family violence was established and there should be a final order for sole parental responsibility to the mother.
Counsel pointed out that the father had been the subject of an adverse visa decision on (omitted), which has effectively meant that he is likely to be deported. She pointed to paragraph 41 of Ms A’s report and noted the abuse of Ms B. It was submitted the father has no reasonable prospects of success. Separation took place prior to the birth of the children. They were eight months old when litigation commenced and will soon be seven. The family report had recommended, in effect, that the children remain living with the mother.
The father’s visa (him being a (country omitted) citizen), was cancelled on 21 February 2017. He had appealed, but on 24 October 2017 his appeal was dismissed by Judge McNab. The father is in jail for further police charges and will remain there until at least (omitted) 2018. It is then likely he will be deported and be unlikely to return.
Counsel pointed, again, to the history of family violence and the disclosures allegedly made by the children. She pointed to paragraph 26 of Dr S’s report and the father’s impulse control problems. Counsel noted that the father minimised his offences and that Dr S had assessed his risk as moderate to high. The family report had recommended time be suspended until the father obtained insight. It was submitted that the father had no reasonable prospects of success.
The Submissions of the Father
The father pointed out that he had spent only 40 minutes with Dr S. He was frustrated. The mother coaches the children and then goes to doctors, then a psychologist, then the police. He said he had been accused of things he had not done to his daughter. He had undertaken anger management and parenting courses, and a mental health course. He was not a threat to his children. His visa appeal had been dismissed. The mother had lied multiple times.
He said this was never going to be over. He would be re-filing if his case was dismissed. He went on to say that the mother did not realise that people in (country omitted) and the (omitted) know about this case. He said words to the effect that he had family in many areas. He pointed to corruption within the Department of Health and Human Services, the Police, and the Court.
The Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer supported the mother’s position. He supported orders that she have sole parental responsibility and that the children live with her and spend no time with the father. He submitted that there was no reasonable prospects of the father succeeding in his application. He still faces criminal charges of family violence. There are serious family violence charges due to be heard in 2018 (I think it is common cause that he has been charged with assaulting Ms B).
Counsel submitted it was highly probable the father would be deported following any serving of sentence and Judge McNab had rejected his visa appeal. The matter had been before the Court for many years and it had involved five family reports. It was submitted it was in the children’s best interests, in any event, to bring the matter to an end.
The Father’s Reply
The father said he had done nothing wrong. He had been fighting since 2011. He said there was an Intervention Order until 2066 (I may have misheard him) with his children on it. He complained vividly of the mother’s conduct.
The Test for Summary Dismissal
In Jefferson Ford Pty Ltd & Ford Motor Company of Australia Limited and Ors [2008] FCAFC 67, the Full Court of the Federal Court was considering the operation of s 31A of the Federal Court Act, which is in relevantly identical terms to s. 17A of this Court’s Act. Relevantly for these purposes, Rares J said at [45]:
The character of a judgment under s 31A is identified by the test which the section prescribes. The judgment is a determination that the proceeding or part of the proceeding “…has no reasonable prospect of success”. Thus, when the Court gives judgment for a party under s 31A(1) or (2) it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes. By enacting s 31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s 31A that the Court need not and does not ordinarily determine the proceedings on their merits after a full trial. A decision under s 31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532 per Dixon J. Rather, the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.
Gordon J gave a lengthy judgment, and I refer to paragraphs [123] – [124] by reference.
Her Honour went on to say, at [132]:
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party (citations omitted). I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s. 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes it clear that the Court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable inference.
S. 17A of the Federal Circuit Court Act reads:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the Court’s Rules provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Application of the Test to the Circumstances of this Case
It should be borne in mind that none of the facts as to the father’s criminal conduct and visa difficulties asserted by counsel for the mother or the Independent Children’s Lawyer were put in issue by Mr Lemaire. Rather, he denied all family violence and strongly denied any abuse of his children, and asserted that the mother had lied on numerous occasions to achieve the state of affairs that now exists.
It is also important to remember that the rules of evidence do not apply to this proceeding, it being a parenting proceeding. Nonetheless, whether pursuant to s. 17A or rule 13.10, I am prepared to accept that had the matter proceeded to trial, it is possible that the father would either have established that he had not indecently assaulted his children, or, alternatively, that the mother would not have been able to satisfy the Court to the required degree, bearing in mind s 140 of the Evidence Act, that the assaults alleged in respect of the children had taken place.
What is beyond question, however, is that the father not only has committed acts of family violence in the past, as described by Ms A, in the form of his threatening behaviour and aggressive language, but that this would be likely, far more probably than otherwise, to continue on an ongoing basis. The father appears to have assaulted Ms B as well. He has been convicted of an assault on Ms B’s former partner.
It is entirely apparent and unarguable that the father has no insight into his conduct whatsoever and continues to blame the mother for everything that has gone wrong. His bad language in the presence of Ms A and his behaviour to Ms B with Ms A give no confidence that he will at any point be able to improve. Furthermore, his own position is that there is no need for him to improve because he has already undertaken all the courses that he has been asked to undertake. The father’s continuing and total lack of insight could not be clearer.
These matters, taken together with the recommendations of the most recent family report, which in the circumstances seem to me to be the only recommendations Ms A could properly have made, would lead inexorably to the conclusion that the father’s case has no reasonable prospects of success, either within the meaning of s.17A or within the meaning of the more difficult test (for the mother) of rule 13.10 (no reasonable prospect of successfully prosecuting the proceeding or claim).
That is scarcely, however, the end of the matter. The father is presently incarcerated and awaiting further criminal charges. His visa has already been cancelled. An appeal against that cancellation has already been unsuccessful. While there are some prospects, no doubt, that he may take the matter further it seems, as things presently stand, far more probable than otherwise that the father will be deported following completion of any further term of imprisonment. It is a fact of which I can properly take judicial notice that a person whose visa is cancelled in the way that the applicant’s has been, on character grounds, and is subsequently deported, will at the very least struggle mightily ever to return to Australia. This scenario adds yet another layer of futility to the father’s application.
As if this were not enough, there is considerable force in the submission of the Independent Children’s Lawyer that it is in the best interests of the children that this matter come to an end now, in any event. Five family reports and some six years of litigation have produced an end point at which Ms A has recommended that the father’s time be reserved until and unless he undertakes a number of steps which, on the evidence as it stands, he will not be prepared to take. The children have been interviewed on multiple occasions and the parties have been no doubt pressured as a result.
Accepting, as I do, that had the matter gone to trial, the mother might well have been found to have wilfully obstructed the father’s time, (something of a pattern which emerges, in my view, clearly on the materials), in the face of the position as it presently stands on the ground, there is simply no prospect of the father successfully prosecuting his claim (rule 13.10) because it is hopeless and bound to fail (rule 13.10), and/or because he has simply no prospect of reasonably prosecuting his claim, which may not be hopeless or bound to fail, but still have no reasonable prospects of success (s. 17A).
Conclusion
Taking the materials in this case as a whole and as they stand, it is clear that the order that the Court should make is that the father’s response be summarily dismissed and that the orders sought by the mother and fully supported by the Independent Children’s Lawyer be made. I have drawn orders to give effect to this conclusion.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 21 December 2017
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