Temiz and Temiz (No 2)

[2020] FamCA 140

FAMILY COURT OF AUSTRALIA

TEMIZ & TEMIZ (NO. 2) [2020] FamCA 140

FAMILY LAW – CHILDREN – where the matter proceeded on an undefended basis – where the father failed to comply with directions for the filing of trial material, the preparation of a psychiatric report and drug testing – where there is an extensive history of family violence perpetrated by the father – where the father sent abusive emails to the mother’s solicitor and Independent Children’s Lawyer during the proceedings – where the risks associated with the father’s behaviour outweigh any benefit to the child having a relationship with the father – where the mother will have sole parental responsibility – where the child will live with the mother and spend no time and have no communication with the father – where a permanent airport watch list order is made.

Family Law Act 1975 (Cth) ss 11F, 60B, 60CC, 61DA, 102QB, 68B, 69ZN

In The Marriage of O’Sullivan [1991] FLC 92-216
In The Marriage of Wilmoth [1981] FLC 91-030
In The Marriage of V A Vlug and K O Poulous [1997] FLC 92-778
Watson & Morton [2007] FLC 93-331

APPLICANT: Ms Temiz

RESPONDENT: Mr Temiz

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

FILE NUMBER: MLC 5675 of 2016

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDonald

SOLICITOR FOR THE APPLICANT: Bowlen Dunstan & Associates

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

IT IS ORDERED THAT

1. That all previous orders be hereby discharged.

2. That the mother have sole parental responsibility of the child X born … 2014 (“the child”).

3. That the child live with the mother

4. That the child spend no time with and have no communication with the father.

Airport Watchlist

1. Paragraph 1 of the orders dated 3 February 2020 be varied to permit the mother Ms Temiz born … 1990 to take the child X born … 2014 (“the child”) from the Commonwealth of Australia for an overseas trip departing from Sydney on or about 17 May 2021 and returning to Sydney on or about 24 May 2021.

2. Upon returning the child to the Commonwealth of Australia on or about 24 May 2021, paragraph 1 of the orders dated 3 February 2020 remain in effect until further order.

3. As soon as practicable the Court forward a copy of this order to the Australian Federal Police

4. The father be restrained by himself or his agents or servants, by way of injunction, from:

   (a)Contacting or attempting to contact the mother or the child in any manner, including by social media;

   (b)Denigrating, criticising, harassing or threatening the mother or the child;

   (c)Attending at the mother’s address or place of work, or the child’s childcare, kindergarten or school.

5. That any application for parenting orders filed by the father be supported by an Affidavit annexing a report of a suitably qualified psychiatrist, such report to be prepared no more than 3 months prior to the father’s application being filed.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

2. The appointment of the Independent Children’s Lawyer be discharged.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5675 of 2016

Ms Temiz

Applicant

And

Mr Temiz

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for final hearing before me commencing on 3 February 2020. In circumstances where the father had repeatedly failed to comply with orders for the filing of documents, failed to attend upon a psychiatrist for the preparation of a psychiatric report as ordered and failed to undergo supervised drug testing or undertake hair follicle testing. I heard submissions by counsel for the father, counsel for the mother and the Independent Children’s Lawyer (“ICL”) and determined that the mother should be permitted to proceed with her Amended Initiating Application on an undefended basis. The matter thereafter proceeded on that basis. The father was not present and was not represented after the luncheon adjournment when the matter proceeded on an undefended basis.

2. The father and mother commenced cohabitation in mid-2012 and married in 2012. There is one child of their marriage X (“the child”) who was born in 2014 and is now 5 years of age. The mother has a child of a previous relationship living with her who is 10 years of age. The father and mother separated on a final basis on 18 December 2015. There were earlier separations and both Victoria Police and the Department of Health and Human Services were involved with the family prior to that final separation.

3. The father who is now 30 years of age came to Australia from Country B. According to counsel for the ICL, documents subpoenaed from the Commonwealth Border Force Authority indicate that the father does not have permanent resident status and remains in Australia on an interim visa, which he continues to renew.

4. Although it is reasonable to infer based upon the father’s conduct both in the court room and generally that the father has mental health issues, as he has failed to attend for a psychiatric assessment, there is no expert evidence as to what his mental health issues may be, his prognosis if treatment were available and how his mental health issues might impact upon his parenting capacity or his prognosis if treatment were available.   

5. The mother is 29 years of age. Although she has been diagnosed with a tumor, it has not progressed and she is engaged full time caring for her two children. The mother is in receipt of Centrelink payments. The father is currently assessed to pay $305 per month and the mother deposes that she has received spasmodic payments of child support from the father.  

6. An order having been made that the mother be treated as the applicant for the purposes of filing trial material for the final hearing, the mother sought orders in terms of a minute of orders. The minute, subject to some minor variations, was in similar terms to her Amended Initiating Application filed 4 November 2019.  Interim orders were made by consent on 11 October 2016 providing for the child to live with the mother and spend supervised time with the father. Further interim orders made on 14 August 2017 suspending the father’s time pending the father producing two clean supervised drug screens. Upon the father producing two clean drug screens he was given the option of resuming supervised time. As the father has not complied with the orders for drug screening the child’s time with him has not resumed.  The orders the mother seeks are consistent with the arrangements that have been in place since 14 August 2017. On this basis there has been a significant proportion of this young child’s life where he has not spent any time with the father.

Legal Principles

1. The objects of that part of the Act which relate to children are set out in s60B(1) of the Family Law Act 1975 (Cth) (“the Act”) as follows:

   60B Objects of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects, except when it is contrary to a child’s best interests, are set out in s60B(2) of the Act as follows:

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)Parents should agree about the future parenting of their children; and

   (e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. When making a parenting order the paramount consideration is the best interests of the child the subject of that order. The matters the court must consider when determining what orders will be in that child’s best interests are found in s60CC(2) and (3) of the Act. When considering the matters in s60CC(2) the court must give greater weight to the second of those considerations, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The relevance and the significance of the principal and additional considerations will necessarily vary from case to case.

4. As I am being asked to make parenting orders, I must also apply the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child (s61DA(1) of the Act), unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA(2) of the Act). Even if the presumption does apply it may be rebutted by evidence which satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s61DA(4) of the Act).

The Evidence

1. The history of these proceedings, particularly the father’s failure to comply with orders for the filing of Affidavits, his failure to comply with orders made by the Court for him to be psychiatrically assessed and to undertake random drug testing and a hair follicle test as requested by the ICL is set out in detail in my reasons delivered on 3 February 2020 and were the basis of my decision that the mother be permitted to proceed on an undefended basis. The mother relied upon her Affidavit of evidence in chief filed 23 October 2019. The father not having filed any affidavit evidence, the mother’s evidence in relation to the hearing before me is unchallenged. On that basis, the facts as deposed to by the mother are treated as findings of fact.

Family Violence

1. The mother deposes to a long history of family violence. That violence started during the marriage and the mother annexed a statement to her Affidavit she gave to Victoria Police on 12 January 2015 as a result of incidents on 30 December 2014, 3 January 2015 and 8 January 2015. The Department of Health and Human Services were involved with the family because of the father’s violence and there were proceedings in the Children’s Court on 26 May 2015 and 17 December 2015. The family violence included physical violence and threats to kill. The mother describes the father slapping, punching, choking her and whipping her with electrical cords. She says these incidents sometimes occurred in front of her daughter. On 6 April 2017, the mother obtained an intervention order. The father has been charged with breaching the intervention order on two occasions.

2. The mother also described the father hitting the child over the face whilst his nappy was being changed and that he had told the ICL that a good way of disciplining a four month old baby was to hit him on the head.

3. The mother deposes that she attended the Federal Circuit Court of Australia with her mother on 13 June 2019 and that as she and her mother were walking away from the Court the father yelled at them repeatedly “I am going to kill you bitches”. The mother reported this incident to Victoria Police and says that it is her belief that the father has been charged with making threats to kill. The mother’s fear of the father generally and in particular of attending court is understandable in these circumstances.

4. Another significant feature of this case is the emails the father sends to the mother’s lawyer and the ICL. The mother also deposes that she has heard the father yell and swear at the ICL outside the court room. Although there are numerous emails the father has sent to the mother’s solicitor, I will refer by way of an example to the email which read as follows:

   …To the fat [Ms C] town bike, To the person who vagina loose as tunnel, To the person who’s mouth and vagina stinks like rotten fish where a person want to run away from that person, To the person who begged and begged me for sex and when I refuse that person would become aggressive. That person one night stand will be so desperate when they couldn’t find anything, Rooting that person is like throwing a sausage in Grand Canyon, To the cheap Slut who will root for a coke and a pie. To the fat Dole Bludger’s Slut who’s big cloths cannot be find, My D***K wouldn’t go hard, it’s was that disgusting.

   To the fat slut mother, To the Centrelink junkie, to the Dole born and Bred Slut. With The mother … x colleague root named [Mr D], I asked Him how he wanted to go to that tunnel slut, & To The Slut Oxygen Thief Family just FYI, your calculated hit and lies has lost, The false accusation, the fabricated stories all has, have and will be proven wrong by us.

   Just wanted to ask what will be next thing you going to allege us with for $$$ lol? And for money that fat slut can do anything. What A bad mother Go to your other Daddy now, and tell them I am your father who will prove all wrong, He is 1 man army. We will expose all lies as we have always done. They want reaction but will never get any reaction from me they have tried A lot but failed.

   And when That Person PigDog Animal Brother Drop Dead from seizures, I’ll Piss on his grave and send you the video, and live stream. Bring it on you lying dogs, I am sick of your lies, Just lies. It’s been 4 years I have been attacked by PigDogs, 100 white Smith to 1 black Smith.

   Senator Pauline Hanson is so right woman lying to court in regards to family violence, here is a great example.

   (As per the original)

5. And on 3 October 2019 the father forwarded an email to the ICL which read as follows:

   …

   Dear [ICL],

   You wonder why I add associates and other law enforcement members in my email as recipients, the reason is this, That you don’t reply if I don’t add them. but if I add you reply like Wet Pussy Dog, Fatty Mcfckhead ! Get used to it, You have played for 4 years because we were busy , I think it should be fair to say it’s my turn !! You mofos Dog,

   your Dad Should Have Used Condom when they were planning you [ICL] because your are a liar and oxygen thief. and a rubbish load in this world who enjoy destroying families !!

   [ICL] you have paedophile looks, the look only paedephile has, I have seen those looks, you may be a dirty paedophile who knows, we need to see your record as well with other kids etc, that’s why I am more worried and scared about my child. he’s living with animals. This may be a paedephile plan to become ICL, everything is making sense slowly slowly.

   X but you  don’t stress Your Dad Will Always Protect You.

   Kind Regards,

   [Mr Temiz]

   (As per the original)

6. These emails are significant for two reasons. Firstly they raise significant concerns about the father’s mental health and secondly they substantiate the mother’s concerns about the father’s behaviour and her fears for her safety and her children’s safety. The fact that the emails were sent when there were proceedings on foot highlights the mother’s concerns and ultimately the concerns the Court should have about the father’s behaviour. It is not hard to see why the mother would in these circumstances be even more fearful of the father in circumstances where there is no Court oversight of his behaviour albeit these proceedings to date do not appear to have significantly altered that behaviour.   

7. The mother also deposes to the father smoking marijuana and regularly using methamphetamines. The father has chosen not to either respond to these allegations or to undertake the supervised drug and hair follicle testing he was ordered to undertake.

Discussion

1. The child presently has no relationship with the father and I accept as submitted by counsel for both the mother and the ICL that a relationship with the father would not be of any benefit to the child. To the contrary in this case, the risks associated with the father’s behaviour would outweigh any benefit to the child of a relationship with the father. Counsel for the ICL relied upon a The Department of Health and Human Services Deposition Report dated 26 May 2015 referring to the history of family violence in which the writer refers to the mother and child having “…sustained psychological and emotional harm as a result of their exposure to such incidents, and without further intervention, were at significant risk of sustaining physical harm.” 

2. There is no evidence that the father has changed his behaviour or even gained any insight into the inappropriateness of that behaviour. The emails he sent to the solicitor for the mother and the ICL clearly demonstrate that is not the case. It is reasonable to infer given the tone of the emails and the attitude of the father to the mother that he would be both unwilling and unable to protect the child from his views of the mother. It is also reasonable to infer, given his failure to comply with orders, that no order would prevent him denigrating the mother to or in the presence of the child. Nor is there any evidence to suggest that the father has the capacity to provide physical care for the child.

3. Even if the Court were of the view that the child would benefit from a relationship with the father it is not clear whether the father will in any event be permitted to remain in Australia.

4. In my view, the way in which the father has conducted these proceedings also demonstrates a total lack of commitment to the child. I am satisfied that if the father had wanted to establish a relationship with the child he would have complied with the orders made by the Court and participated in the proceedings. Although I cannot make findings as to what motivated the father’s application, given what has occurred that motivation is clearly questionable.

5. I am also satisfied having regard to the s 11F memorandum and the two family reports that the mother provides appropriate care for the child and that it is in his best interests to remain in her care. The descriptions in the family reports of those family report writers of their observations of the child with the mother demonstrate a warm and loving relationship. At [20] of the most recent Family Report dated 7 June 2019, the Family Report writer observed as follows:

   …[X] (aged 4 years 8 months) presented as a healthy and bright child. He attends kinder/childcare. [X] was gentle, soft-spoken and well mannered. He was interested in age appropriate play activities. [Ms Temiz] seemed much attached to [X] and demonstrated her affection towards him with cuddles and encouraging words. [X] responded warmly to his mother and followed her directions without resistance.

1. In all of the circumstances, I propose to accede to the mother’s application, which is supported by the ICL, that she have sole parental responsibility for the child, that the child live with her and that the child not spend any time with the father.  Given my findings with respect to the history of family violence I am satisfied that the presumption of equal shared parental responsibility does not apply and that it would not be in the child’s best interests or practical  for the father and mother to share parental responsibility. Nor should the mother be required to have to deal with the father in these circumstances.

2. In circumstances where the father’s visa status and his ability to remain in Australia is uncertain and Country B, the country of his birth, is not a signatory to the Hague Convention, I also propose to make the permanent Airport Watch List order the mother seeks. The father has demonstrated a total disregard for the orders of this Court and the mother’s concern that he might attempt to remove the child from her care and from the Commonwealth of Australia is in these circumstances a reasonable concern. I accept as submitted by counsel for the mother that in the event that the father is no longer living in Australia she will apply to discharge the watch list order.

3. Finally, the mother seeks an order that prevents the father issuing further proceedings with respect to the child without leave of the court and that any application for leave be made ex parte and be supported by a recent psychiatric assessment. Counsel for the mother submitted that the court has the inherent power to prevent an abuse of process and referred me to the decision of Strauss J in In The Marriage of Wilmoth [1981] FLC 91-030. (“Wilmoth”). In Wilmoth Strauss J made an order restraining the husband from instituting any applications in relation to custody or access of the two children of the marriage for a period of two years. His Honour concluded that although in s118 of the Act, since replaced by s102QC, there was no express power to prohibit the commencement of further proceedings without leave, the court had the inherent power to make such an order to prevent an abuse of process.

4. Wilmoth was considered by the Full Court of this Court (“Full Court”) in In the Marriage of V A Vlug and K O Poulous [1997] FLC 92-778 (“Vlug and Poulous”). In Vlug and Poulous Finn, Kay and Moore JJ referring to the decision of the Full Court in In The Marriage of O’Sullivan [1991] FLC 92-216 emphasized (at [78-461]) the fundamental importance in our legal system of the right to commence proceedings in the courts and that the power to limit that right contained in s118 should “be exercised with caution” and reserved for the clearest of cases. This is particularly so having regard to the provisions of s102QC of the Act.

5. In Watson & Morton [2007] FLC 93-331 The Full Court (Coleman, May and Thackray JJ) overturned the decision of a trial judge restraining the husband from bringing any application for parenting orders until a certain date noting that (at [36-39]) that there is no express power in the act for a blanket restriction on making applications to the Court and that the right of a citizen to approach the courts is a ‘valuable right.’ The Full Court concluding (at [44]) that “having regard to the importance of the right to access to the Court and the need for any restriction to be curtailed only by statutory provision which is "unambiguously clear", it would appear there is no power in the Court to restrict access to the Court in the manner paragraph 2 of the orders of Carter J purports to do.”

6. Although in this case the mother does not propose a blanket restriction on the father making applications to the court, she does propose an order which would require him to seek the leave of the court to make an application. I am not satisfied that in circumstances which would not support the court making an order pursuant to s102QN that it would be appropriate to restrict the father’s access to the courts in this way.

7. The mother however also proposes that any application for leave should be supported by an Affidavit annexing a recent psychiatric assessment of the father by a suitably qualified psychiatrist. Although I am not satisfied that I should make the order placing restrictions on the father’s ability to make applications to the court, I am satisfied that the court does have the inherent power to protect itself and a party to proceedings from applications which are an abuse of process.

8. The father, notwithstanding that he initiated these proceedings has failed to participate in the proceedings in any meaningful sense and significantly given my findings about his behaviour, has failed to comply with the orders with respect to the preparation of a psychiatric report. The Court absent a psychiatric assessment could have little confidence that the father would actively participate in any future proceedings or comply with any orders the Court might make, absent evidence as to his mental health. In these circumstances although I am not satisfied that I should make orders preventing the father from instituting further proceedings without leave, I am satisfied that I can and should make an order that if he makes any further application to the court, that he file a recent psychiatric assessment with the application.

9. Given the father’s conduct in these proceedings and the concerns I have about his mental health, it is in my view not unreasonable that he should be required to address the question of his mental health at the commencement of any further  litigation.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 28 February 2020.

Associate: 

Date:  28 February 2020