Cholic and Cholic
[2014] FamCA 234
FAMILY COURT OF AUSTRALIA
| CHOLIC & CHOLIC | [2014] FamCA 234 |
| FAMILY LAW – CHILDREN – Final Orders – mother makes serious allegations of physical and sexual abuse by father resulting in criminal trial – father acquitted or found not guilty of all charges – mother unilaterally relocated children to Western Australia - father has not spent time with children for four years - father does not pose unacceptable risk to the children – mother deliberately alienated children from their father – actions of mother left children living in fear and under veil of secrecy - consideration of meaningful relationship and the need to protect the children from physical or psychological harm – best interests of the children – mother and children to return to South Australia – children to live with mother – mother to have sole parental responsibility - gradual reunification process to address children’s relationship with father – children to spend supervised time with father. |
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 60B, 60CC, 65L, 69ZT, 69ZN
| Baglio & Baglio [2013] FamCA 105 |
| APPLICANT: | Ms Cholic |
| RESPONDENT: | Mr Cholic |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 5009 | of | 2009 |
| DATE DELIVERED: | 11 April 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 9, 10, 11, 12, 13, 16, 17, 18 December 2013, 30 January 2014 and 4 and 5 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Horvat |
| SOLICITOR FOR THE APPLICANT: | Christopher Ganzis and Co |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hemsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adey Lawyers |
Orders
That on or before 4pm on 10 July 2014 the mother do cause the children of the marriage namely B born … 2004 and C born … 2006 (“the children”) to reside permanently in the metropolitan area of Adelaide.
That thereafter the mother be restrained and injunction is hereby granted restraining her from changing the principal place of residence of the said children from the Adelaide metropolitan area.
That Mr Cholic and his servants and agents are restrained from taking, sending or attempting to take or send the children B born … 2004 and C born … 2006 from the Commonwealth of Australia.
That the Marshall and all Officers of the Australian Federal Police and Police Forces of the States and Territories are requested and authorised to give effect to these orders.
That the Court requests that the Australian Federal Police place the names of the said children on the Airport Watch List for all points of international arrival and departure in Australia for the purpose of preventing removal of the said children from Australia in breach of these orders.
The Registry Manager shall notify the Department of Immigration and Citizenship of these orders and the Department is requested in ensuring that Mr Cholic does not breach these injunctions.
That the wife have sole parental responsibility for the said children PROVIDING that the mother shall give the father twenty eight (28) days notice of any intention to either enrol or remove the said children from any school to which they attend or are to attend after 10 July 2014 and shall give the father fourteen (14) days notice of any significant medical intervention, surgery or procedure to be undertaken by the children or each of them, but in the circumstances of a medical emergency the mother will advise the father as soon as is practical following such medical procedure or intervention taking place.
The children shall live with the mother.
The parties with the assistance of the Independent Children’s Lawyer shall organise for the said children to attend upon a therapist with the focus of such therapy to be as follows:-
(a) To create a healthy parent and child relationship with the father;
(b)To ameliorate any distress and/or anxiety occasioned by the children’s relocation from Western Australia to South Australia;
(c)To reinforce with the children that neither they nor the mother is at risk of harm from the father;
(d)That they are not at risk of being removed by the father from the care of the mother and/or from Australia;
(e)That the father participate in such therapy on the basis that the said therapy shall be on such occasions and with such frequency as shall be determined by the therapist PROVIDED that the said therapy shall be completed within a period of eight (8) weeks commencing as and from 20 July 2014 AND that any time spent between the father and the children during the said period of therapy shall be by arrangement and agreement between them and as may be directed by the said therapist but not otherwise.
Other than for the purpose of assisting the implementation of the therapy the Independent Children’s Lawyer shall be discharged as and from 20 September 2014.
That the therapist referred to in these orders shall be given a copy of the reasons published this day and a copy of these orders.
That the mother will do all things necessary to cause the children to attend upon the said therapist and thereafter to facilitate all sessions.
That at the conclusion of the therapy period and subject to the availability of the therapist, the children shall spend time with their father for two (2) hours on one occasion in each calendar week for a period of not more than four (4) such occasions PROVIDED that the said therapist shall supervise the time between the children and their father.
If the said therapist is not able to or be unwilling to supervise the time to be spent between the father and the children as provided for in these orders THEN in the alternative and pursuant to Section 65L of the Family Law Act1975 (“the Act”) the Manager of Child Dispute Services for the Family Court of Australia at Adelaide shall nominate a Family Consultant to supervise compliance by the parties with the parenting orders made herein (“the order”) and to render to the parties such assistance as may be reasonably required to aid in the carrying out of the said order.
That the father shall be responsible for the entire cost of the said therapist or the involvement of a Family Consultant nominated pursuant to Section 65L of the Act.
That at the conclusion of the four (4) supervised periods between the father and the children pursuant to Order 13 and 14 hereof the father and the mother shall forthwith enrol in a Contact Centre for supervised contact to begin as soon as practicable thereafter and at the Contact Centre that is most quickly able to assist, with such periods of supervised contact to not exceed six (6) in number, if possible at a frequency of one (1) visit each week but if the nominated centre cannot accommodate weekly visits THEN the visits shall be on a fortnightly basis.
That at the conclusion of six (6) supervised visits at a Contact Centre the children shall spend time with the father unsupervised as follows:-
(a)On each alternate weekend from 10am to 5pm Sunday for six (6) periods;
(b)Thereafter, on each alternate weekend from 10am Saturday to 5pm Sunday for a period of six (6) occasions;
(c)Thereafter, on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday for six (6) periods;
(d)Thereafter, on each alternate weekend from Thursday after school to the commencement of school on the following Monday;
(e)As and from the commencement of overnight time between the children and the father, half of each of the short end of term holidays between such times and dates as may be agreed and in default of agreement the first half;
(f)As and from the commencement of overnight time between the children and the father, on a week about basis throughout the Christmas school holiday period.
(g)Special occasions such as Christmas, Easter, the children’s birthday and birthdays of the parties as may be agreed.
(h)For the purpose of these orders any handover not at a Contact Centre or the child’s school shall be inside the D Police Station unless agreed otherwise.
That the father and the mother be entitled to receive school newsletters, school reports and notices in relation to the children.
That the mother keep the father advised of the name and address of the children’s treating medical practitioners and any change thereto and shall advise the father in writing of any hospital admission in relation to the said children and shall provide such authority to enable the father to contact such treating medical practitioner and obtain information in respect of the children’s health, ongoing medical treatment or other health related matters affecting the children and each of them.
That the mother and the father are restrained and an injunction is granted restraining each of them from showing the children any documents relating to these proceedings, talking to the children about the content of documents in these proceedings or any criminal proceedings involving the parties or from allowing anyone else to do so SAVE in the course of treatment for the children and then only at the direction, or under the supervision of a counsellor, therapist or treating professional.
That the parties are restrained and an injunction is granted restraining each of them from abusing, insulting, belittling, harassing or threatening the other or in the presence or hearing of the children or either of them and from permitting any other person to do so in the presence or hearing of the said children or either of them.
As and from 19 May 2014, that the mother shall forthwith advise the father of the whereabouts of the children, their school and their current medical practitioner and shall authorise their current school and medical practitioner to provide information to the father in respect of the children as he may request.
That the mother shall be restrained and an injunction is granted restraining the mother from:-
(a)Taking the children to any psychologist, counsellor or therapist other than as provided for SAVE as may be the subject of agreement between the parties;
(b)Changing the names of the children or using any other name or referring to the children or allowing anyone else to do so by a name other than their birth name.
That within thirty (30) days of the date of this order the father shall place the sum of TWENTY THOUSAND DOLLARS ($20,000) into the Trust Account of Christopher Ganzis and Co (“the mother’s solicitor”) who shall be authorised to disburse those monies for the following purposes:-
(a)The cost of the parties and children’s attendance upon the therapist provided for in these orders (or in the alternative the Family Consultant appointed pursuant to Section 65L of the Act);
(b)The travel expenses associated with the mother and the children travelling from Western Australia to take up residence in Adelaide;
(c)The payment of a Bond on any rental premises acquired by the mother;
(d) The mother’s rent for a period of six (6) weeks;
(e)The reasonable cost of removal of the mother’s and the children’s furniture and effects from Western Australia to Adelaide up to the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500).
The mother shall instruct her solicitors to provide copies of invoices the subject of disbursement pursuant to these orders.
If the mother shall terminate her solicitors instructions THEN Christopher Ganzis and Co shall forthwith return the balance of any funds held in their Trust Account pursuant to these orders to the father and the expenses provided in Order 24 shall be paid by the father directly upon receipt of an invoice as may be provided to him by the mother.
That all applications are otherwise dismissed.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cholic & Cholic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 5009 of 2009
| Ms Cholic |
Applicant
And
| Mr Cholic |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed in the Federal Magistrates Court of Australia on 18 December 2009, Ms Cholic (“the mother”) sought parenting orders in respect of the children of the marriage namely B born … 2004 (aged 10 years) and C born … 2006 (aged 7 years) (“the children”). By Response filed 25 January 2010 Mr Cholic (“the father”) sought orders that he have the sole parental responsibility for the children, that they live with him and that the mother spend time with the children on a supervised basis. In addition, each of the parties sought a general order by way of property settlement. Ultimately, their respective claims for property settlement were abandoned and the proceedings continued in respect of parenting orders only.
The mother filed a further Amended Initiating Application on 20 January 2011. The orders sought by her are significantly different to the mother’s position at trial. As at 20 January 2011 the relevant final orders sought by the mother are as follows:-
(1)That the children of the marriage [B] born … 2014 and [C] born … 2006 (“the children”) live with the wife and she have sole parental responsibility for them.
(2)That the husband spend time with the children at times to be agreed by the wife and always supervised at the Children’s Contact Centre.
(3)The husband, his servants and/or agents be and are hereby restrained from removing or attempting to remove the children from the care and control of the wife.
(4)The husband and his servants and/or agents be and are hereby restrained from removing or attempting remove or causing or permitting the removal of the children [B] born … 2004 and [C] born … 2006 from the Commonwealth of Australia and it is requested that the Australian Federal Police Force give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watch List until the Court orders its removal.
(5)The husband be and is hereby retrained from abusing, assaulting, harassing, interfering with, talking, threatening or in any way molesting the wife and he be restrained from contacting her personally or through his agents in any way apart from via the parties legal representatives.
(6)…
(7)…
(8)…
(9)…
(10)That leave be granted for the wife and the said children to relocate to Western Australia or such other place as the wife may choose from time to time.
At trial the wife sought the following orders:-
(1)That the mother have the sole parental responsibility of the children [B] born … 2004 and [C] born … 2006.
(2)That the children live with the mother.
(3)The father pay the mother’s costs of and incidental to these proceedings.
The orders sought by the mother are based on an assumption that she and the children will remain living in Western Australia and importantly, that there is to be no time spent between the father and the children. Whilst not stated, the mother is opposed to the father receiving any information in respect of the children other than in what might be described as the most “censored and sanitised” form.
The father sought the following orders in his Response document filed 25 January 2010:-
(1)That the children of the marriage [B and C] (“the children”) live with the husband and that he have sole parental custody of them.
(2)That the wife spend time with the children at times agreed upon by the husband and for these visits to be supervised by a person and/or persons both the husband and the wife mutually consent to.
(3)That the wife, her servants and/or agents be restrained from removing or attempting to remove the children from the care and control of the husband.
(4)That the husband be permitted to approach and communicate with the wife for the purpose of ensuring the ongoing safety and welfare of the children.
(5)…
(6)…
(7)…
(8)…
Whilst the orders sought by the father might be considered somewhat rudimentary in their drafting, nonetheless the intention is clear. In summary, at the commencement of the proceedings each party considered that the children should reside with each of them and with limited and supervised time to be spent by the other party.
The father has been unrepresented since 9 October 2013. That was unfortunate. The preparation of his documents was inadequate and generally speaking there was scant regard for orders made dictating trial preparation.
In particular, on made 31 July 2013 the father was ordered to file an Amended Response setting out with precision the orders sought by him and his affidavits of evidence in chief by 4pm on Monday 7 October 2013.
The father did not file a Case Outline document and it was only at the commencement of the proceedings that he elected to rely upon orders sought in an Application in a Case filed 24 May 2012 (seeking to amend his response) as his final orders. I was prepared for the matter to proceed on that basis given that the mother had significant notice of the orders and in the circumstances of the proceedings it could not be said that there was any prejudice caused to her by the father seeking orders in the following terms:-
(1)The following orders are sought in addition to orders sought in the Response to Initiating Application filed 25 January 2010.
(2)That a re-unification process begin on an interim basis with the children of the relationship namely [B] date of birth … 2004 and [C] date of birth … 2006 (“the children”).
(3)That the children immediately be returned to Adelaide, South Australia from the State of Western Australia.
(4)That the children spend supervised time with the applicant on Monday and Wednesday of each week from 5pm to 7pm.
(5)That the children spend supervised time with the applicant on Saturday or Sunday of each week for a period of 4 hours either during a lunch period or during a dinner period of the where he works.
(6)That this regime continue for a further period of 3 months unsupervised.
(7)That in addition to the above regime, the applicant communicate by telephone 3 times a week with both children at times to be agreed between the parties for the duration of 6 months period.
(9)That in addition to the above regime the applicant be able to provide his children with basic items such as clothing, toys and school needs during the 6 month period.
(10)That the children be assessed at the conclusion of the above 6 month period by a relevant professional with a view to having overnight stays with the applicant.
(11)Ultimately, the children spend time with the applicant and the respondent with shared parenting responsibility of both children.
The tenor of the orders seeks in broad terms the return of the children to South Australia, a graduated process of re-unification and re-introduction between the father and the children and then ultimately that the children spend equal time with the parties. The orders lack any precision and clarity.
Fundamental to the position of the mother is that the children remain with her in Western Australia and spend no time with the father but in opposition, the father seeks that the children return to South Australia and resume time with him on a graduated and increasing basis.
The trial commenced before me on 9 December 2013. The mother was represented by counsel as was the Independent Children’s Lawyer (“ICL”). Evidence was taken thereafter on 9, 10, 11, 12, 13, 16, 17, 18 December 2013, 30 January 2014 and then on 4 and 5 February 2014 with judgment reserved.
The mother relied upon the following documents:-
(1)Further Amended Initiating Application of the mother filed 20 January 2011.
(2)Trial Affidavit of mother filed 2 September 2013.
(3)Trial Affidavit of Ms E filed 2 September 2013.
(4)Trial Affidavit of Ms F filed 2 September 2013.
(5)Trial Affidavit of Ms G filed 2 September 2013.
The father relied upon the following documents:-
(1)Response filed 25 January 2010.
(2)Application in a Case filed 24 May 2010.
(3)Trial Affidavit of father filed 23 October 2013.
(4)Affidavit of father (financial circumstances) filed 16 December 2013.
(5)Affidavit of father (financial assistance) filed 16 December 2013.
The matter came before me on 31 July 2013 to list the matter for trial and also to make trial directions. On that occasion the parties (including the father) were represented by counsel as was the ICL.
As a preliminary matter, I canvassed with counsel their attitude to the application of Section 69ZT (1) of the Family Law Act 1975 (Cth) (“the Act”). All counsel agreed that the provisions of Section 69ZT should apply, in particular in circumstances where the mother’s case involves not just an assertion that the father presents an unacceptable risk to the children, but that she seeks specific findings in relation to a number of incidents of family violence including physical assault, sexual assault and physical and sexual abuse of the children (although allegations of sexual abuse were not proceeded with at trial).
The notation to the order of 31 July 2013 is in the following terms:-
Upon further noting that all counsel agree that the provisions of Section 69ZT (1) of the Family Law Act 1975 (Cth) shall apply to Division 3, 4 and 5 of Part 2.1, Part 2.2, Part 2.3 and Parts 3.2 to 3.8 inclusive of the Evidence Act 1995 (Cth) for the purpose of the hearing for final orders.
At the commencement of the proceedings I had regard to the provisions of Section 69ZN of the Act namely:-
Section 69ZN (1)
A Court must give effect to the principles of this Section:-
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings. Failure to do so does not invalidate the proceedings or any order made in them.
Section 69ZN (2)
Regard is to be had to the principles in interpreting this Division.
Section 69ZN (3)
The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Section 69ZN (4)
The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Section 69ZN (5)
The third principle is that the proceedings are to be conducted in a way that will safeguard:-
(c)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(d)parties to the proceedings against family violence.
Section 69ZN (6)
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote co-operative and child focused parenting by the parties.
Section 69ZN (7)
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
Counsel and the father were reminded of the notation to orders made 31 July 2013 and that the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) should apply and in particular to the specific allegations raised by the mother.
In determining whether the provisions of the Evidence Act should apply, consideration must be given to Section 69ZT (3) namely, I must be satisfied that the circumstances are exceptional and that I have had regard to the following matters:-
(i)The importance of the evidence in the proceedings;
(ii)The nature of the subject matter of the proceedings;
(iii)The probative value of the evidence; and
(iv)The power of the Court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
The mother at trial filed a Case Outline document and it highlights and alleges the following:-
·Unacceptable risk of physical and psychological harm of the children by the father.
·Domestic violence, including sexual violence, perpetrated by the father against the mother.
·Exposure of children to domestic violence between the parents.
·Father physically and psychologically abusive towards children during parties’ relationship.
·Relocation of mother and children to Western Australia.
·Children have not had any contact with the father since the parties separated on 14 December 2009.
It is the mother’s case that the father perpetrated sustained and ongoing domestic violence including sexual violence against the mother and with less detail, physical and psychological abuse to the children. Indeed, the mother alleges that the father’s demonstrable violence and aggression towards her was a feature of their relationship from a time before the parties married and possibly as early as 1998. The father’s alleged behaviour did not abate but rather, developed into behaviour that borders on the “horrific”. The father trenchantly denies the allegations and alleges that the mother suffers from significant psychiatric disability, has concocted the entirety of the allegations and for reasons that are not clear to him has in effect manufactured a circumstance which has seen the mother and the children in hiding in Western Australia with the father having been denied a relationship with his children for now in excess of four years.
The Full Court in Maluka & Maluka (2011) FLC 93-464 gave consideration to the circumstances of the application of Section 69ZT in a case that involved allegations of family violence and sexual abuse. At paragraph 121 the Full Court considered the extent of judicial discretion in the application of the Section and held:-
[121]Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent, a trial judge must apply Section 69ZT (3) of the Act to the entire hearing. Whilst it was acknowledged the Sub Section is not expressed in mandatory terms, any other outcome was said to be erroneous.
[122]The Full Court decision is Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 FamLR 268 adopt a common approach to Section 69ZT namely, that the decision to apply Sub Section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein…
[123]We do not accept the father’s argument that the effect of Section 69ZT is to establish a rule of general application but in cases where a Court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the Rules of Evidence excluded by Section 69ZT (1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victims why, notwithstanding an order is sought terminating the child’s relationship with a parent, a judge might determine the risk issue by reference of Section 69ZT (1) and (2) of the Act.
In the rehearing of Maluka by Coleman J in Maluka & Maluka [2012] FamCA 373 his Honour said:-
[28]As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for Section 69ZT (1) is in the Court’s view, likely to be mischievous and not just for one party…
[32]It is a matter of significance within Section 69ZT (3) (a) (i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M & M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings…
[37]Perhaps for the present purpose the short and simple answer is that particular in the context of determining disputed issues of fact or belief in respect of domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact finding function.
As is self-evident from a consideration of the mother’s trial affidavit, the allegations against the father are at the extreme end of the scale. Moreover, the matter is complicated by the events following separation namely, the circumstances of the mother and the children relocating to Western Australia, the manner in which they went into hiding and then the subsequent charging of the father with numerous criminal offences involving rape, physical and sexual assault allegedly perpetrated against the mother. Much of the affidavit material relied on by the wife seeks to repeat and/or emulate at least a substantial number of the charges purportedly raised in the information laid against the father.
At the commencement of the proceedings the mother’s counsel was clear in her submission that the allegations raised were not intended only to support a contention that the father posed an unacceptable risk to the children but specifically the mother sought where possible that the Court make a positive finding that on the balance of probabilities the particular incident took place as alleged.
Before evidence commenced the father was provided with a copy of the decision of the Full Court of this Court namely Re F: Litigants in Person Guidelines (2001) FLC 93-072. The father was given an opportunity to properly consider the matters raised in Re F: Litigants in Person and upon further enquiry the Court was advised that the father wished the matter to proceed notwithstanding that he would remain unrepresented.
Further, the Court them embarked upon a careful consideration of the affidavit material to be relied upon by each of the parties and with the assistance of a Notice of Objection to Evidence filed by counsel for the mother, consideration was then given to striking out inadmissible material in the principal affidavits of each of the parties.
CHRONOLOGY
The following short chronology would seem to be uncontroversial.
1969 Date of birth of father
1975 Date of birth of mother
1994 Parties meet at a nightclub
1996 Mother resides in Housing Trust accommodation
1997 Father travels overseas for work
March 1998 Father returns to Australia and parties continue relationship
2000Father establishes his own business known as “H Pty Ltd” situate in Suburb J
2000 Mother sustains injuries in a motor vehicle accident
Early 2002 Mother receives compensation payment of $100,000
24.2.2002 Parties marry
April 2003Parties purchase a house at K Street, Suburb L
2004Date of birth of B
2006Date of birth of C
2006-2008Relationship between parties deteriorates
2007Father admits extra-marital relationship, parties discuss separation
Late 2008Parties wind up their business affairs and family moves to Country S
Jan 2009Family returns to Australia to resolve a dispute in respect of “H Pty Ltd. Suburb J”
16.10.2009Parties open a new business known as “H Pty Ltd Suburb M”
14.12.2009Following an incident at “H Pty Ltd Suburb M”, the father is arrested, the parties separate and the mother and children go into hiding
26.12.2009Mother and children are assisted by SA Police and Australian Federal Police to leave Adelaide and take up residence in hiding in Western Australia
18.12.2009Mother files Initiating Application
25.1.2010Father files Response
2.2.2010Orders made by Cole FM (as he then was) for the appointment of an Independent Children’s Lawyer (and that the parties enrol in the Suburb N Children’s Contact Centre)
23.2.2010Proceedings transferred to the Family Court of Australia with orders made for the father to spend supervised time with the children
14.5.2010Charges against the father are dropped and the restraining order is resolved by negotiation such that upon the father’s consent that the restraining order in favour of the mother be in place for a period of five years, the children are not included in the order of restraint
14.5.2010Order made in respect of supervised time between the father and the children and that the mother file a Notice of Address for Service
17.6.2010Suburb N Children’s Contact Centre refuse to conduct supervised time between the father and the children
2.9.2010Family Assessment Report by Mr O is released and the parties are ordered to submit to drug testing
23.9.2010Order by Dawe J suspending the father’s time with the children and dismissing interim proceedings
6.1.2011Attendance before Burr J. Father charged with eleven counts of rape
20.1.2011Further Amended Initiating Application
Date of divorce order
18.3.2011Mother declared bankrupt
BACKGROUND
The parties commenced their relationship in or about 1993. The mother was about 18 years of age and she asserts that soon after meeting the father who was aged about 24 years, she soon became dependent upon him, subservient to his demands and was under his thrall.
From the earliest days of the relationship, the mother alleges that the father was:-
often verbally abusive to me or would throw objects at me such as glasses, mugs, plates and bottles of water. He regularly would grab me by the arms and yell at me. He would do this over very minor issues such as his clothes not being laid out properly for him.
It is also alleged that the father would place demands on the mother as to how they would engage in sexual intercourse and it was her opinion that he was obsessed with sex, pornography and gained pleasure from engaging in demeaning, aggressive and at times non-consensual sexual relations. The mother also asserts that the father was heavily reliant upon cocaine.
As early as 1994 the mother alleges that in addition to his violent sexual conduct towards her she was the subject of assault, with one incident occurring at her family home in Suburb P, South Australia.
For a number of years the mother says that she tried to end the relationship and on one occasion took refuge at the home of her aunt. The father apparently managed to establish her whereabouts and ultimately there was a reconciliation, although the mother says that it was more out of fear than any genuine hope that the relationship would be re-established without the dominating, aggressive and sexually violent behaviour of the father continuing.
In 2000 the mother had a motor vehicle accident and in about 2002 she received a significant compensation payout of about $100,000.
The money was ultimately provided to the father and assisted in the setting up of a business known as “H Pty Ltd Suburb J”. The mother’s position is that she was reluctant to provide the money but she was compelled to do so again in response to aggressive and abusive behaviour by the husband.
The business was initially successful and both parties appeared to have taken an extensive role in the management and the day to day operation of the .
The mother states that the father’s behaviour leading up to the marriage in 2002 steadily worsened and became more aggressive. At paragraph 57 of her trial affidavit she summarises the state of the relationship as follows:-
Sam’s behaviour deteriorated and he became more violent and more insistent on having sex, and introducing sexual aids, pornography and at times prostitutes into our lives. At all levels I attempted to resist but was forced into continued sexual encounters which were both painful, demeaning and violent.
Notwithstanding what can reasonably only be described as the alleged horrific behaviour exhibited by the father, the mother was on her evidence unable to live without him notwithstanding that she was in extreme and constant fear.
The father denies the physical and sexual aggression as alleged by the mother and rather, paints a picture of the parties working together cooperatively in order to establish a secure financial future together culminating in what he says was a joyful wedding event, a honeymoon in Bali and a clear plan that involved children and the intention to establish a family home and financial security. According to the mother the father’s abusive behaviour did not ameliorate post marriage. The sexual relations between the parties was often non-consensual, and involved violence and sexual depravity. She said the father engaged in numerous extra-marital relationships and was abusive and demeaning of the mother, particularly in the periods of pregnancy leading up to the birth of each of the children B and C.
The mother also states that the father was not much interested in anything to do with the children and was disappointed that the parties were not able to have a son. He rarely assisted with any parenting responsibilities in respect of the children and according to the mother was entirely disinterested in the children.
By 2006 the business structure of “H Pty Ltd” was in financial difficulty and there was friction between the partners not assisted by the allegation of the mother that the father became “too obsessed with drugs and this affected the smooth running of the main part of the business”. It was during this period that a man by the name of Mr Q together with a “gang of other men mainly [from Country R]” began to frequent the and spend time with the parties. Mr Q would deal in drugs and it was apparently the wife’s observations that large quantities of drugs were dealt at his home, but also in the in the upstairs office.
To the extent that the father’s behaviour could degenerate further, the mother says that he would drink alcohol at work and on most days, that his sexual appetite was heightened and notwithstanding the protestations of the mother, he would force her to engage in sexual intercourse and demeaning sexual activity. In addition, the mother says that the father was becoming both interested in and sexually aroused by pornography involving males and females having sex, group sex and sex involving animals. The father was forcing the mother to ingest cocaine and the mother and the children were restricted in who they could socialise with, the father preferring the family would mix only with other Country S families.
In mid-2007 the mother alleges that she received a phone call from the father at 3am warning that a person called Mr T may come to the door and threatened to kill the mother and the girls. Apparently arising from a connection with an outlaw motorcycle gang, the father and Mr Q had warned off Mr T and he was intent upon retaliation. The mother presented evidence to corroborate a threat from Mr T.
The mother also says that in late 2007 the father forced her to have plastic surgery procedure by way of breast augmentation and a “tummy tuck”. Whilst the mother was recuperating after the surgery, the father forced her to engage in demeaning sexual acts allegedly causing pain, extreme discomfort and humiliation.
The behaviour of the father towards the mother caused her to experience panic attacks and she sought assistance from Dr U at the Suburb L Family Practice. Dr U gave evidence in the proceedings pursuant to a subpoena. His evidence was of considerable impact in respect of the assertion of the father that following the births of the child B and then C, the mother started to take substantial quantities of prescription medication which later led to her developing an addiction. If the father can be accepted, a significant element to the breakdown of the relationship and the unpredictable and labile moods of the mother is as a result of an overuse of prescription medication, in particular as prescribed by Dr U.
The mother promotes an incident in August 2008 which involved the father allegedly raping the mother whilst driving her home in a motor vehicle from a nightclub in the city. The importance of this alleged incident is that it apparently features as one of the matters the subject of criminal charges laid against the father.
In or about September 2008 the mother alleges that the father introduced prostitutes into their sex life over her trenchant objections.
Disturbingly, the mother further alleges that the father made her engage in sexual relations with Mr Q because the father owed him money for cocaine purchases. From this point, Mr Q features significantly in the lives of the parties. Not only does the mother allege that she was required to engage in sexual intercourse with him both separately and with the father and others, but that thereafter she continued to have a sexual relationship with Mr Q because she felt compelled to do so at the insistence of the father.
Following an initial holiday to Country S in June/July 2008, the family discussed moving to Country S to live permanently. Agreement was reached and the family left Australia on 28 September 2008. Buoyed by the previous pleasant experience arising from the earlier trip, the mother was happy to make the transition. She says however that once in Country S the experience was anything other than pleasant. She alleges that she was required to adopt a subservient role to the father and was not comfortable with the cultural mores in Country S. Moreover, the mother complains that the father threatened her that unless she was prepared to do his bidding he could arrange for her to be removed from the country with the children to remain with him. The mother says that as a result of her distress her health suffered, she became homesick and her diabetes was not well controlled. She was allegedly resistive to wearing a veil and the segregation of females and males in public and at various events. Ultimately, the mother alleges that the legal proceedings that were still ongoing in Australia in respect of the business were such that to remain in Country S was untenable and the father was persuaded that the family should return to Australia. This occurred on 6 January 2009. Whilst the father agrees that the mother experienced a deterioration in her health, he denies that the mother was distressed whilst in Country S and says that she was treated with courtesy, respect and affection by the father’s extended family. But for matters relating to the mother’s health and more significantly the need to attend to escalating litigation, the father’s position is that the family was happy in Country S and would have stayed.
Upon the family returning to Australia they lived with the father’s parents in Suburb V for some months whilst the former matrimonial home in Suburb J was rented. The father says that the parties were still discussing a return to Country S once the litigation was resolved.
The father’s position is that the parties were happy and involved in pursuing the various business opportunities. The father says that in about May 2009 a decision was made to develop a new business to be known as “H Pty Ltd Suburb M”. The mother was involved in the business and it was placed in her name. It opened its doors on 16 October 2009 and as far as the father was concerned the business operated successfully almost from its inception and the move by the parties from the home of his parents to premises in Suburb W marked a period of significant improvement following what he says had been a turbulent and disruptive previous year.
The mother presents a significantly more sinister version of the final year prior to separation.
The father’s aggressive and violent sexual assault on her continued. She describes being the subject of rape, assault and demeaning behaviour by the father.
Not only was the father continuing his sexual attacks on the mother, she alleges that he was using significant quantities of cocaine almost on a daily basis and was involved in the drug scene in the assistance that he provided to a gang known as the “X Gang” and his facilitation of the laundering and disposal of significant sums of money and drugs. She complains that his involvement with the “X Gang” occurred at times when the children were in his care.
In August 2009 after the mother had returned from her work at the business , she alleges that the father was at home with Mr Q and another member of the “X Gang”. She says that the men had been watching pornographic films, consuming significant quantities of alcohol and cocaine and ultimately, she alleges that she was the subject of a gang rape involving the three men. The mother alleges that she told the men to leave her alone and notwithstanding her protestations the sexual attack continued. This incident has significant importance in respect of the proceedings generally in that it is alleged by the mother that B had witnessed at least some part of the incident. B’s alleged observations were subsequently the subject of police investigation and interview. This incident also featured as one of the charges that was laid against the father in his criminal proceedings.
Whilst the mother places emphasis on the alleged gang rape in August 2009, the mother says at paragraph 176:-
I can’t remember what happened after that. This was not the first time that [Mr Cholic] had had sex with me with other gang members.
No detail has been provided in respect of other occasions (other than the mother’s ongoing sexual involvement with Mr Q) where she was forced to engage in sexual relations with the husband and members of the “X Gang”.
By the mother’s own admission she continued to engage in separate sexual encounters with Mr Q. She says at paragraph 177:-
I tried to put an end to the sexual encounters with [Mr Q]. I only allowed him to have sex repeatedly as I felt threatened by him both physically and mentally.
The mother’s history of ongoing sexual degradation, rape, assault and insulting and offensive behaviour, continued up to the day of separation.
It is common ground that the parties separated on 14 December 2009. The parties do not agree on the events of the day. The mother says that she had been working at the business that day and had finished her shift at about 3pm. At 5pm she received a phone call from the father asking that she return to the busines in order to assist. She alleges that the call was a ruse to lure her back to the business so that the father could confront her with an allegation that she had been having an intimate affair with one of the business employees known as “Mr Y”. When the mother allegedly denied the allegation she was struck about the face, neck and head and amongst a barrage of offensive and insulting language, the mother says that the father threatened her life.
The parties returned to the business and she was effectively imprisoned in a back office. A further threat by the father which involved the display of a knife caused the mother to phone the police.
A number of police officers attended at the cafe and the mother was taken by the police to make a statement. Curiously, the mother alleges that whilst she was making a statement to the police Mr Q attended at the business and she used his mobile phone to contact her sister and niece to direct them to take the children away from the family home to other premises. Initially the father was charged and held in custody overnight. The mother and the children were then assisted by the police in terms of interim accommodation and ultimately moving from a hotel to a shelter with the acknowledgement by the mother that on 26 December 2009 she and the children left Adelaide assisted by both SAPOL and the Australian Federal Police. It appears common ground that the mother and children were assisted to relocate to Western Australia and to adopt new identities.
The father’s version of the events on the day of separation is significantly more benign than that related by the mother. Upon the return of the mother to “H Pty Ltd Suburb M” the father says that he observed the mother give a note to the worker “Mr Y”. The father considered that the mother’s behaviour was suspicious. He opened the door of “Mr Y’s” car and recovered a piece of paper with the words “Mr Y – you are making me sad (miss you xx)”. The writing was that of the mother. In evidence the mother agrees that she had penned the note but that there was no sexual connotation nor was it indicative that there was anything other than a friendly relationship between she and Mr Y. Without there being any other incident, in particular the allegation made by the mother that the father had struck her around the head and the neck, the police had arrived, the mother had left and he drove home whereupon he discovered that the children were no longer at the house. The father was then arrested, but the charges were later withdrawn.
The mother commenced proceedings on 18 December 2009 during the short window that she remained in South Australia.
Notwithstanding interim orders made on 2 February 2010 that the parties enrol at the Suburb N Children’s Contact Centre with a view to the commencement of some supervised time with the father and the subsequent order made on 23 February 2010 confirming same, the ordered time did not eventuate.
It is not controversial that there has been a significant delay between the date of the commencement of proceedings by the father and the hearing of the trial. A significant reason for the delay involved the resolution of the criminal charges laid against the father.
I was not provided with the information in respect of the various charges nor the particulars of offence. It is however an admitted fact that the father was charged with eleven counts of rape and ultimately he was acquitted on ten counts with one count being undecided. The mother admits that the Director of Public Prosecutions made a decision not to seek a re-trial in respect of the final count.
As will be the subject of further discussion, the child B was interviewed by the police at length and whilst not clearly defined or delineated, some of the matters which were the subject of the child’s record of interview were directed to particular criminal charges. The child did not give evidence in the criminal court but the mother sought to rely upon her record of interview as evidence in these proceedings.
The position promoted on behalf of the mother by her counsel that she sought not just a finding that the father presents an unacceptable risk to the children, but also where possible a specific finding that on the balance of probabilities adopting the Briginshaw test, that the various acts of assault, sexual assault and rape have been established. There was no attempt to highlight which matters the subject of reference in the trial affidavit of the mother were also the subject of criminal charges laid against the father, heard and determined in the criminal proceedings.
The current circumstances of the mother and the children in Western Australia are uncertain. The mother produces scant information other than that she lives with the children in rented accommodation in a suburb in Western Australia. She gives evidence in her affidavit of short term relationships but she alleges that due to the father’s “influence those relationships have been short-lived”. The mother works part-time and is also studying. She is always available to look after and supervise the children and whilst she is currently on medication to assist with a stomach ulcer, anxiety and diabetes control, she says that her health is otherwise good.
Other than a heavily redacted school report there is no information in respect of the children. There is uncertainty as to whether the children are still known by their names or whether they have adopted new names. The mother does not proffer any information in respect of her own personal circumstances and certainly nothing that would identify her, the children or their whereabouts.
Under cross examination by counsel for the ICL, the mother admitted that she was currently completing a diploma in bookkeeping and accounting and that both her health and that of the children was satisfactory. There were however issues of significance that have affected the family namely, she had formed what I find to be a casual relationship with a person known as MrZ who the mother alleges ultimately turned out to be a stalker and had a connection with outlaw motor cycle gangs. The mother asserts that she caught MrZ searching through her computer and her files. Importantly, she alleges that she was the subject of sexual assault and rape by MrZ, that it was reported to the police but that no charges have been laid.
The mother also gave evidence under cross examination that her house had been the subject of break-in on three occasions and in circumstances where the property was not ransacked, she considers that the trespass to her home was in all the circumstances suspicious.
It also appears that on another occasion the police were called to the home arising out of a neighbour complaint that a male in the property was shouting and behaving aggressively in the presence of the children. The mother did not resile from this incident but sought to diminish its potential importance.
Whilst there is some uncertainty, it also appears that the police attended on a different occasion involving another male, that he was intoxicated and an argument ensued. The mother accepts that an incident occurred but denies that she was in a relationship with this man.
The unfortunate picture presented by the mother is one of personal and domestic chaos arising out of failed relationships. The evidence, limited as it was, was entirely unsatisfactory.
The veil of secrecy promoted by the mother raises significant concerns as to the circumstances of the children in Western Australia, the mother’s insight in terms of her various relationships seemingly marred by family violence particularly in circumstances where she asserts that the extreme action taken by her in removing the children from South Australia was to escape family violence perpetrated by the father. Without the cross examination of the counsel for the ICL the mother would not have disclosed these very significant events. I find the mother was deceptive in her conduct.
RELEVANT ISSUES
The mother alleges extreme family violence towards her and the children. It is her position that the evidence will allow me to find on the balance of probabilities that one or more of the alleged separate incidents of family violence and sexual assault can be established and that so grievous are those matters that such a finding would in and of itself justify an order that the children should spend no time with their father and moreover, that there should be no information as to their appearance, their whereabouts or their development provided to him. If a finding is not able to be made, then the mother’s position is that the court should find the father presents an unacceptable risk which in and of itself would justify the father spending no time with the children, nor receiving any information as to their welfare and development.
Implicit in the mother’s case is that the children should continue to reside with her in Western Australia in circumstances of complete secrecy and anonymity.
The father rejects each and every allegation of the mother and alleges that she has concocted and fabricated the entirety of her case, with each step in the process designed to distance the children from him to the extent that there is not “a meaningful relationship or even the remote possibility that one might develop between the father and the children”.
For his part, the father refers to what he says was a close and loving relationship with the children. He says that notwithstanding a period of more than four years since the children have seen him, he considers that their previous bond was so strong that he will have little or no trouble in re-establishing a relationship with them. The father’s position is that arising out of the mother’s actions, he accepts that there will need to be a graduated re-introduction and that this will not be achieved by the children continuing to reside in Western Australia. He seeks their immediate relocation to Adelaide and that the mystery and secrecy surrounding their circumstances be removed.
The matter is made more complicated by the relative paucity of information and evidence from a Family Consultant that would assist me in a determination of the matter. To some extent this is a consequence of the mother’s behaviour in refusing to provide any information as to her whereabouts.
It is clear that whatever my findings might be, ultimately the significant issue may well require a consideration of whether the benefits of a meaningful relationship with the father outweigh the potential harm that could be caused to the children by the re-establishment of the relationship in circumstances where the mother demonstrably does not support such an outcome.
Whether ultimately there is a finding that the mother has orchestrated the breakdown of the children’s relationship with their father, so extreme are the children’s circumstances and the manner in which they have been inculcated into the culture of secrecy and fear, the issue is live and is at the forefront of my consideration.
As will be the subject of closer examination, there are concerns as to the assistance that is able to be rendered to the court by the evidence of Family Consultant Ms AA and her Family Report dated 21 August 2013. Arising from that difficulty is the very real spectre of whether interim orders need to be made and a further consideration of final orders adjourned to a later date.
EVIDENCE AND SUBMISSIONS
The Mother
With leave the mother gave further evidence by way of examination in chief. The first matter put to the mother by her counsel was to ascertain the circumstances by which she was being assisted by the police. The mother’s position was that she was in a witness protection program. Upon that evidence being given by her, I raised with the mother’s counsel whether there was an issue in terms of the police having notice of the proceedings and whether they sought to be heard. The mother’s counsel did not appear to have had any instructions on the matter and upon further questions being put to her, she then revealed that it may not be limited to the State Police but that the Australian Federal Police might also have any involvement and/or an interest. I expressed my concern that the issue of police involvement had not been raised on any occasion that the matter was before me for trial direction orders.
The relocation will be difficult, but the mother has the advantage of her extended family in South Australia with whom the children have at least some relationship. They appear supportive of the mother. The current circumstances in which the children find themselves, namely cloaked in secrecy and fear, is an unacceptable outcome of the mother’s conduct and could not be considered to be in their best interests.
I am not insensitive however to some of the issues raised by the mother in terms of a fear that she has that the father may take the children out of the jurisdiction of Australia. Whilst there is little or no evidence of any intention by the father to do that, appropriate orders will be made to ensure that such a possibility cannot happen.
I can see no reason why there should not be usual orders for the provision of information to both parties in respect of the children’s education, health and extra-curricular activities, and whilst undesirable and unless the parties reach a different and more satisfactory agreement handover will take place either at a Handover Centre or to and from the children’s school and in the absence of those facilities then at the D Police Station.
I make orders as set out the beginning of these reasons.
I certify that the preceding three hundred and twenty five (325) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 April 2014.
Associate:
Date: 11 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Costs
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