AKBARI & AKBARI
[2020] FamCAFC 309
•11 December 2020
FAMILY COURT OF AUSTRALIA
| AKBARI & AKBARI | [2020] FamCAFC 309 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Family violence – Where the father challenges the primary judge’s findings as to sexual assault – Where the mother’s evidence was capable of establishing sexual assault to the requisite standard – Weight challenge – Whether excessive weight was placed on the mother’s evidence despite inconsistencies in it – Adequate reasons – Where the primary judge’s findings were open on the evidence – Appeal dismissed. |
| Evidence Act 1995 (Cth) s 140 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170 |
| APPELLANT: | Mr Akbari |
| RESPONDENT: | Ms Akbari |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | MLC | 10768 | of | 2010 |
| APPEAL NUMBER: | EAA | 13 | of | 2020 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Aldridge, Watts & Austin JJ |
| HEARING DATE: | 21 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3752 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Howard |
| SOLICITOR FOR THE APPELLANT: | Lexicon Lawyers |
| THE RESPONDENT: | Self-represented litigant |
| THE INDEPENDENT CHILDREN’S LAWYER: | Did not participate in the appeal |
Orders
The appeal be dismissed.
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 Akbari & Akbari 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 13 of 2020
File Number: MLC 10768 of 2010
| Mr Akbari |
Appellant
And
| Ms Akbari |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Mr Akbari (“the father”) appeals against final parenting orders made by a judge of the Federal Circuit Court of Australia on 23 December 2019 in proceedings between him and Ms Akbari (“the mother”). On that day, orders were made for the mother to have sole parental responsibility for the parties’ only child, X, born in 2006 (“the child”). The child was to live with the mother in Canberra (and not in Adelaide as sought by the father) and spend time with the father in accordance with her wishes. The mother was directed to take all necessary steps to obtain psychological or therapeutic services for the child to support her to re-establish and maintain a relationship with the father.
The appeal is opposed by the mother. The Independent Children’s Lawyer filed a Submitting Notice on 24 March 2020. The parties’ Summaries of Argument were not filed within the time prescribed by the orders of the Appeals Registrar but no objection was taken to them being taken into account.
The scope of the appeal is very limited. Despite an array of findings made by the primary judge on a number of issues, including family violence, the father predominantly challenges the primary judge’s findings that “there were occasions after 2012 when the father sexually assaulted the mother by having sexual intercourse with her without her consent and knowing that she did not consent” (at [103] and [349]). The father contends that these findings were against the weight of the evidence, taking into account the requisite standard of proof (Ground 1); that excessive weight was placed on the mother’s evidence despite there being a large number of inconsistencies in it (Ground 2); and the finding that the father engaged in other coercive and controlling behaviour was not open on the evidence, if the findings of sexual assault had not been made (Ground 3).
As these reasons shall explain, we consider that the findings that were made by the primary judge were open on the evidence. Accordingly, the appeal will be dismissed.
Background
The parties married in Canberra in 2004. Shortly after, they moved to Adelaide where the child was born. The parties separated a few times before their final separation in May 2012 when the mother moved to Canberra with the child.
On 20 June 2012, interim orders were made which required the mother to return to Adelaide with the child. The mother complied and she and the child commenced living in a refuge. Further interim orders were made on 28 June 2012 restraining either party from changing the residence of the child from Adelaide.
Final orders were made by consent on 23 January 2013, which provided for the mother to have sole parental responsibility for the child. The child was to live with the mother in Canberra, if the mother so decided, and spend time with the father as agreed in writing between the parties.
The mother did not move to Canberra until January 2016. In the intervening period, the mother studied health care to improve her employment prospects in anticipation of the move. The mother completed her studies in late 2015.
The father recommenced proceedings in Adelaide on 5 May 2016 seeking, amongst other orders, an order for the immediate return of the child from Canberra. That order was not made and the proceedings were transferred to the Canberra Registry of the Court on 12 October 2016.
Interim orders were made on 7 April 2017 which provided for the parties to identify an appropriate child psychologist to undertake therapy to address any anxiety that the child felt about spending time with the father and to support the re-establishment of her relationship with him.
Final hearing dates were fixed for 7 to 9 May 2018 and then later reallocated to 21 to 23 August 2018, which dates were vacated due to the imminent birth of the mother’s child with her new husband and the mother’s child’s later admission to hospital, respectively. The final hearing commenced on 24 September 2018 and was delayed further due to the ill health of counsel. It concluded on 30 November 2018.
The primary judge’s reasons for judgment
It is helpful at this stage to give a brief overview of her Honour’s reasons for judgment.
The primary judge considered the mother’s allegations that the father often punched and slapped her, kicked her, and pushed her over whilst she was pregnant at [44]–[84]. Specific findings were made that a month or two after the child was born, in January or February 2007, the father violently shoved the mother who was carrying the child, punched her in the eye and kicked her, causing her to fall over. The child’s head nearly hit the wall when the mother fell (at [52]–[79]).
The primary judge found that the mother was punched in the eye on another occasion (at [79]). The primary judge recorded the mother’s allegations that she was thrown to the ground in June 2011 and kicked repeatedly all over her body (at [80]) and pushed violently into a wall, punched, kicked and grabbed by her throat in May 2012 (at [81]), and later that day, the father broke into the house and stayed the night while the mother, the paternal grandmother and the child slept in another room (at [82]).
This led the primary judge to the following conclusion:
348.The mother’s evidence about family violence was detailed and compelling. I am satisfied the mother was subjected to violence from the father throughout the parties’ relationship. His physical violence to her comprised pushing, hitting, punching and choking her from very early in their marriage. This behaviour was coercive or controlling. The mother was distressed by it and tried to appease the father to avoid it recurring. I accept her evidence that she hoped his attitude and behaviour would soften once the baby was born. When, in late 2006 or early 2007, the father assaulted her while she was holding the baby, she realised that his behaviour would not change. This undermined the mother’s trust in the father and, in turn, the mother’s commitment to the relationship.
There is no challenge by the father to any of these findings.
Her Honour then described a violent altercation in April 2012 between the paternal grandfather and a paternal uncle which was witnessed, at least in part, by the child. The grandfather was taken to hospital where he died four months later following a series of strokes. The paternal uncle was subsequently charged with criminal offences. Afterwards, the father tried to persuade the child that she had not seen blood but only tomato sauce (at [85] and [87]).
The sexual assaults of the mother were then considered and we shall return to those matters shortly.
The primary judge found that after separation, during 2016 and 2017, the father, by means of repeated telephone calls and attempts to find out personal information about the mother, had acted and intended to cause the mother fear and anxiety (at [118]–[131]).
Again, there is no challenge by the father to these findings.
The reasons for judgment include a detailed consideration (at [180]–[287]) of a Family Report dated 16 October 2012, a Child Inclusive Conference Memorandum dated 30 March 2017, a report by Dr B, the psychologist appointed to conduct the therapeutic intervention for the child, dated 8 August 2018, a report of Mr CC, a clinical psychologist engaged by the father to consider the documents in the proceedings and to provide a report based on them, dated 14 August 2018 and a second Family Report dated 15 May 2018.
This led her Honour to find the following:
·the child has a meaningful relationship with the mother and would benefit from such a relationship with the father (at [322]);
·the child has been exposed to the father’s violence towards the mother “on multiple occasions from when she was a baby”, and has been frightened by his behaviour towards her, and there would be a risk of psychological harm to the child if either was to occur again (at [322]);
·the child has experienced anxiety trying to manage a relationship with the father and without relief this could cause her long-term emotional or psychological harm (at [323]);
·if the child lives in Canberra with the mother, she “may feel more secure and willing to explore a more meaningful relationship with her father” (at [325]);
·the child “has a complicated and ambivalent relationship” with the father (at [327]);
·at least some of the child’s resistance to spending time with the father is likely based on her own experience of him, including his poor treatment of the mother and her knowledge that the father is seeking orders that she live with him. She does not trust him or see him as a reliable caregiver (at [328]);
·the father is attempting to use his failure to pay child support “as a means of control or punishment of the mother” (at [336]);
·the child would likely “suffer extreme anxiety and distress” if she was to live apart from the mother which “would put her mental health at risk” (at [338]);
·“the mother has a better capacity than the father to provide for the full range of the child’s needs” (at [341]); and
·the father “lacks insight into [the child’s] psychological and emotional needs and therefore lacks the capacity to provide for them” (at [343]).
Once again, none of these findings was challenged by the father in the appeal.
After turning again to the issue of family violence (at [348]–[352]), with which we shall deal with shortly, her Honour came to the following conclusions:
354.[The child] is entitled to a proper relationship with her father provided it is safe. The father’s case is that the child will never have a meaningful relationship with him if she continues to live in the mother’s primary care. His proposals for [the child] to live with him and have no contact at all with her mother for a three month period is a method usually only considered in cases of clear alienation of a child from a parent. This is not such a case. Mr [CC] set out in his report the behavioural characteristics of a child that help to identify when active alienation is occurring. As discussed earlier, some of those features are present in this case but many are not.
355.I am satisfied that some of [the child’s] reticence to spend time with her father is based on her own experiences of him which were frightening or unsatisfactory. They include her witnessing her father’s violence towards her mother; her witnessing serious physical violence between members of her extended paternal family; her being roughly taken away from her mother at least once during a dispute between the parents; and her father failing to appropriately engage with her during periods she did spend with him.
356.I have no doubt that [the child’s] relationship with her father is also adversely affected by her exposure to each parent’s poor view of the other and the overt parental conflict for which both parents are responsible.
357.Although the father is keen to emphasise the child’s right to a meaningful relationship with him, he has failed to acknowledge his role in the breakdown of their relationship. If he had engaged respectfully with [the child’s] mother, treated her as his equal and not subjected her to violence, it is reasonably likely that he and the mother would still be married and the child would have the benefit of living with both of them. Even if the marriage had not survived, without his violence and threats, the parties are likely to have had a functional co-parenting relationship. Throughout the proceedings, the father refused to acknowledge his contribution to the current situation. The mother was prepared to acknowledge her role by, for example, exposing the child to her feelings of hostility towards the father.
358.Apart from the unsatisfactory relationship with her father, [the child] is a happy, healthy and well-adjusted child. She is part of a close, loving and functional family comprising her maternal grandparents, uncles, aunts and cousins and her stepfather, step-grandmother and half-brother. She is doing well at school and has good friends. These are all protective factors against the long-term risks involved in [the child] not having an appropriate relationship with her father. These positive aspects of [the child’s] life would all be jeopardised by orders which require her to live with her father and have no contact with her mother or extended maternal family for a period of three months. I accept the evidence of Ms [E] that such orders would be very destabilising for [the child] because they would require her to move to a new city, new home and new school.
359.Having said that, it is also in [the child’s] best interest that she is given the opportunity to re-establish a meaningful relationship with her father and to spend sufficient time with him to allow that relationship to deepen and develop. I accept the mother’s evidence that she is genuinely supportive of [the child] having a meaningful relationship with her father provided it is safe. I am also satisfied on the evidence that the only way this can be achieved is in a multi-pronged approach in which the following occurs:
a)the child has appropriate therapeutic support to help her to deal with her experience of her parents’ relationship and her individual relationship with each parent;
b)the father obtains therapeutic support to find ways of engaging with [the child] which do not cause [the child] to be concerned about her own or her mother’s welfare;
c)the mother obtains therapeutic support to assist her to maintain clearer parent/child boundaries with [the child] and to assist her to promote and facilitate [the child’s] relationship with her father.
The appeal
Ground 1
The mother’s case in relation to the sexual assaults was straightforward. On her return to Adelaide in June 2012, the mother moved from a refuge to community housing and then into a home which she purchased in 2013. The mother said that the father followed the child home from school and started to attend the home uninvited. At times, she said that he took her into a bedroom because he said that he had something important to say. Once there, she said that she was overpowered and forced to have sex. The mother said that “she never consented to sexual relations with the father after separation in May 2012” (at [92]).
The father’s position was that the sex was consensual and part of a temporarily resumed relationship. The latter proposition was rejected by the primary judge.
However, there was material that supported the father’s position which the primary judge dealt with as follows:
96.The mother was cross-examined about a text message she sent to the father in 2013. The message was not tendered in evidence but was read to the mother during cross-examination. It read as follows:
And when did I do that? We have been through a lot, last two years. I never asked you for help, and I did not want to get back into this relationship. You are the one. Decide what you want, because I still want to quit and start a new life, a better life.
97.It was put to the mother that her text message clearly acknowledged that she was in a relationship with the father. The mother said the message had to be read in context with other messages at that time and that what she was saying to the father in the message was that she did not want to be in a relationship with him and that he was forcing the relationship on her.
98.The mother ultimately acknowledged the marital relationship did exist in some respects but said that was because the father wanted it and forced himself on her, rather than her voluntarily participating in it. She said that before she was divorced, she also felt conflicted because she was still married to the father legally and religiously and he, her parents and her siblings all had expectations of her as his wife. She said she came to accept the reality of her situation, which involved the father being in her life and having sex with her.
99.It was put to the mother that she had many opportunities to make a report if she was being sexually abused but did not do so. The mother said in response:
I don’t know if you’re saying I’m lying or something, but this sexual abuse became a part of my life. It was like an every day, normal thing for me. So I didn’t want to go around in the streets telling my neighbours that my – this person is here, and going to the next door neighbour or school. I don’t like doing that. So it was happening, and I was accepting it, and I was thinking, okay, this is my life, like – like, verbal, physical abuse, him degrading me, calling me… For the whole entire marriage, putting me down, calling me [swear word], like, you know, a cast that I am. Like, all these were – all these things. So that was all normal for me.
100.The mother said that, even when she moved to Canberra and was obtaining advice from the Women’s Legal Centre, she did not feel comfortable about telling them about the sexual abuse. She said she thinks she did not mention it in her first affidavit.
101.The mother was shown another text message she sent the father that did not come into evidence and was not read onto the record. It was put to her that this was an affectionate message about the couple having sex and did not suggest coercion. The mother conceded that characterisation of the message. When asked later about it she said “I am a human being”.
102.I conclude on the basis of that evidence that the mother’s statement that she had never voluntarily had sex with the father after May 2012 was not true. I am satisfied the mother had an ambivalent attitude to her relationship with the father up to mid-2013 and that there were times when she felt more positively towards him and accepted his sexual advances. However, I also accept her evidence that she felt she had no choice about being in the relationship and felt she had to accept it on the [father]’s terms.
(Footnotes omitted)
This led the primary judge to the following conclusion:
103.In civil proceedings, the standard of proof is the balance of probabilities. However, this does not mean that the court simply finds that one state of affairs is more likely than another. The more serious the allegation, the greater the sense of certainty the court must have before making a finding. Despite the mother’s false statement that she had never agreed to sex with the father after May 2012, on the evidence I am satisfied to the requisite standard that there were occasions after 2012 when the father sexually assaulted the mother by having sexual intercourse with her without her consent and knowing she did not consent.
(Footnote omitted)
The mother’s evidence as to the sexual assaults was evidence, if accepted, that was capable of establishing that they occurred.
It is well established that a trial judge may accept some parts of a witness’s evidence and reject other parts (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322 and Sahrawi & Hadrami (2018) FLC 93–857 at [59]).
The footnote at [103] of the primary judge’s reasons for judgment is a reference to the well-known statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…
More correctly, the approach is now contained in s 140(2) of the Evidence Act 1995 (Cth) which is generally to the same effect and states:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
Thus, her Honour was well aware of the level of satisfaction required.
Generally, an appeals court will not set aside a trial judge’s findings of fact based on the acceptance of a witness’s credible evidence unless they are contrary to compelling inferences or incontrovertible evidence or are glaringly improbable (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] and Lee v Lee (2019) 266 CLR 129 at [55]). Counsel for the father did not contend that there was such evidence or inferences or that the outcome was glaringly improbable.
Essentially, the father’s submission was simply that the findings about the sexual assaults ought not to have been made, having regard to the level of satisfaction required, because of the general nature of the allegations and the mother’s concession that, on occasions, the sex was consensual. We accept that these matters required close consideration but the primary judge clearly took them into account. The possibility that other judges may have been more cautious in their approach and may have declined to be satisfied that the sexual assaults occurred, does not demonstrate error by the primary judge. The weight to be given to these matters is a matter for the primary judge and the finding was open on the evidence.
For those reasons, Ground 1 which raises these matters does not succeed.
Ground 2
Ground 2 is a challenge based on inconsistencies in the mother’s evidence. In reality, it is a submission that the primary judge should not have accepted the mother’s evidence because of them. The main inconsistency relied on was again the discrepancy between the general statement that the mother did not consent to any sex after 2012 and her later admission that some of it was consensual. It was also submitted that her Honour’s reasons as to the credibility of the parties, especially the mother, were inadequate.
The father also relied on the following:
·there was not much detail in the mother’s allegations against the father;
·no allegation of sexual assault was raised by the mother to her lawyers in 2014 or 2015, with the allegations first being raised when the father sought orders for the child to be returned to Adelaide;
·in cross examination, the mother twice denied that any sex with the father after separation was consensual (Transcript 25 September 2018, p.205 lines 30–33 and Transcript 25 September 2018, p.229 lines 28–29) and asserted that she could not enjoy sex with someone who had hit her but, having regard text messages between the parties, some clearly was;
·the mother told the Police on 7 December 2014 that the father had not been violent for the past three years and did not raise any sexual assault; and
·the father’s assertion that the parties were in an on/off relationship at the time.
As the primary judge’s reasons referred to in these reasons, and at [115]–[117], make clear, her Honour was well aware of these matters and took them into account. The second point appears not to have been raised before her Honour but nevertheless does not necessarily detract from the mother’s veracity, as the father seems to have wrongly assumed. It is notorious that victims of sexual assault, for various reasons, do not always make a contemporaneous complaint about their adverse experiences.
As to credibility, the primary judge said:
315.I found the mother to be a generally credible witness. At times during cross-examination she gave long explanations or posed further questions rather than simply answering the question. For instance, it was put to her that the father was perfectly content to be divorced from her. She answered by asking why, in that case he did not sign the application.
316.On a number of occasions, the mother was shown to be wrong in her recollection of events but in each instance, she readily conceded her error. She became confused about the timing of several different incidents that occurred close in time in the months following [the child’s] birth. However, the essence of her evidence about those events was clear and supported to a significant extent by subpoenaed material.
317.The mother’s overall narrative was compelling. When answering questions she appeared to be recalling actual events and when pressed for details she was able to provide them. I am satisfied she was a generally truthful witness.
(Footnote omitted)
The primary judge clearly explained why her Honour considered the mother’s evidence to be generally truthful, and accordingly, the reasons are adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
It is apparent that the primary judge did not simply accept the mother’s evidence as to the sexual assaults based on that general credit finding. On the contrary, all the evidence was weighed, having regard to the matters already noted, and indeed, the primary judge found that the mother’s evidence itself was wanting to some extent. Only then was the impugned finding made. To repeat, we consider that this was a course that was open to her Honour.
We do not accept that the primary judge failed to “carefully consider … collectively as well [as] individually, those matters” described above, in determining whether the findings of sexual assault could be made to the requisite standard (the father’s Summary of Argument filed on 2 June 2020, paragraph 40). We consider that her Honour did so.
Ground 3
Ground 3 is in the following terms:
That her Honour’s errors as set out contributed to her finding of coercive and controlling violence by the father and that, without those errors, that finding was not open to her on the evidence.
The father submits that the primary judge’s findings of sexual assault led to, or at least influenced, the primary judge’s description of the parties’ relationship from January 2013 to January 2016 as being unhealthy and marked by coercive and controlling behaviour by the father, which “served to diminish almost completely the evidence of the father that his relationship with [the child] in that period was positive and ongoing” (the father’s Summary of Argument filed on 2 June 2020, paragraph 42).
The primary judge took her findings as to family violence into account in the following manner (repeating paragraphs already quoted):
348.The mother’s evidence about family violence was detailed and compelling. I am satisfied the mother was subjected to violence from the father throughout the parties’ relationship. His physical violence to her comprised pushing, hitting, punching and choking her from very early in their marriage. This behaviour was coercive or controlling. The mother was distressed by it and tried to appease the father to avoid it recurring. I accept her evidence that she hoped his attitude and behaviour would soften once the baby was born. When, in late 2006 or early 2007, the father assaulted her while she was holding the baby, she realised that his behaviour would not change. This undermined the mother’s trust in the father and, in turn, the mother’s commitment to the relationship.
349.The mother gained a little more control over her life when she began to live separately from the father after they separated in May 2012. I accept the overt physical violence ended at that point but that the father then began to sexually assault the mother. The consent orders of 2 January 2013 gave the mother even more control because she had sole parental responsibility for [the child] but the father still exercised a degree of control over her by coming to her home uninvited and forcing himself on her sexually. However, as stated earlier, not all of the parties’ sexual encounters after separation were forced on the mother.
350.The mother remained determined to end her relationship with the father, but there were practical considerations such as the lack of accommodation and work opportunities in Canberra. Those two difficulties were resolved at the end of 2015, and the mother shortly thereafter moved to Canberra.
351.After the mother and [the child] moved to Canberra, the father continued his coercive and controlling behaviour. When he spoke to [the child] on the phone he asked her to turn the phone around so he could see the mother. Once he found out the mother had remarried, sent the mother a text message to let her know that he knew about the marriage, knowing that would frighten or unsettle her.
352.At various times during the marriage the father undermined the mother by telling the police that she was mentally unwell and by telling child protection authorities that she had threatened to kill the child, neither of which were true. He also engaged in controlling behaviour by refusing to financially support the child unless and until he was able to see her.
(As per the original)
It is true that the sexual assaults of the mother were relied upon at [349]. However, the findings in each of these paragraphs seem to us to be a discrete finding independently arrived at. Whilst the sexual assaults were found to be a continuation of coercive and controlling behaviour, that finding did not influence the earlier finding that physical violence was an example of such behaviour, or the later findings as to the effects of the frightening behaviour and financial control.
Further, it must be clearly recalled that the child had witnessed some of the father’s physical violence and complained of it to the writer of the Child Inclusive Conference Memorandum (“I remember him choking my mum” (at [200])) and to the writer of the second Family Report (“[the child] told [the Family Report writer] that she had seen her father attack her mother and choke her ‘over a million times’” (at [237])).
The child herself raised this issue directly with the father in a therapy session with Dr B and asked him “why he had tried to kill her mother and told him she remembered seeing him trying to choke her mother” (at [24]).
The statements of the child support the findings of physical assault by the father but also support the critical findings as to the child’s fear and distrust of the father. It is worth repeating that none of the above findings, save for those as to the sexual assaults, were challenged by the father. Those findings powerfully support the orders that were made by the primary judge.
The findings of sexual assault therefore play a very small part of the overall findings of family violence, which include physical assaults and coercive and controlling behaviour by the father, and stand unchallenged. It was the physical violence and the later frightening and unsettling behaviour, some of which the child saw or experienced, and not the sexual assaults which she did not see, that led the child to have “an ambivalent attitude” towards the father (at [207]) and to view him as dangerous with the potential to harm her and the mother (at [208]).
It follows that Ground 3 does not succeed.
Conclusion and costs
The appeal will be dismissed.
The mother acted for herself in the appeal and did not seek any order for costs in the event that the appeal was dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 11 December 2020.
Associate:
Date: 11 December 2020
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