Edinger & Duy (No 2)
[2023] FedCFamC1F 450
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edinger & Duy (No 2) [2023] FedCFamC1F 450
File number: PAC 4543 of 2020 Judgment of: HANNAM J Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the mother alleged that the father physically and sexually abused the child – Where the allegations have been extensively investigated by police and the Department – Where the mother continues to report the child’s complaints – Where each party contends that the other have perpetrated family violence – Where the father contends the Court cannot find that one party is the perpetrator of family violence – Where the father and ICL contend that the mother poses an unacceptable risk of psychological harm to the child – Where the father and ICL seek orders that the child live with the father and spend supervised time with the mother – Where the mother seeks that the child spend no time with the father – Where the expert opines that the mother’s proposal is the least detrimental parenting arrangement – Where the father is found to have perpetrated family violence – Where gaslighting is found to meet the definition of family violence – Where it is found that the mother held a genuine belief that the child has been abused – Where orders are made as sought by the mother. Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 60CG, 65D Cases cited: Amador & Amador [2009] FamCAFC 196
Goode & Goode (2006) FLC 93-286
Fitzwater v Fitzwater (2019) 60 Fam LR 212
In the Marriage of Reihana (1980) 6 Fam LR 134
In the Marriage of Schenck (1981) 7 Fam LR 170
Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93 – 405; 41 Fam LR 483
Slynt & Slynt [2017] FamCA 82
Division: Division 1 First Instance Number of paragraphs: 553 Date of last submissions: 12 April 2023 Date of hearing: 27–28 February 2023, 1–3 March 2023 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Robertson Saxton Osborne Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 4543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDINGER
Applicant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
2 JUNE 2023
THE COURT ORDERS THAT:
1.Ms Duy (“the Mother”) shall have sole parental responsibility for X born … 2015 (“the Child”).
2.The Child shall live with the Mother.
3.The Child shall spend no time with or communicate with Mr Edinger (“the Father”).
4.The mother is restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the father or members of the paternal family or permitting the child to remain in the presence of anyone doing so;
(b)Discussing these proceedings or the contents of any documents filed or intended for use in these proceedings to, with, or in the presence or hearing of the child or permitting the child to remain in the presence of anyone doing so.
5.The father shall surrender to the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division 1) by 4pm today any passport in the child’s name in his possession or control.
6.The mother is to collect any passport surrendered by the father pursuant to the previous order from the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division 1) within seven days.
7.The mother is at liberty to remove the child from the Commonwealth of Australia for the purpose of taking a holiday.
8.To facilitate Order 7 pursuant to Section 11(1)(b)(i) and Section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) the child is permitted to travel internationally without the need for the consent of the father to be provided for the issue of his passport. The mother is the only person with ‘parental responsibility’ for the child for the purpose of applying for, and being issued with, an Australian passport for the child.
9.The ICL is to provide a copy of the Reasons for judgment dated 2 June 2023 to any counsellor from the Child Protection Counselling Service or arranged by the Department of Health who are providing counselling services to the child or mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father” or collectively “the parents”) are engaged in a dispute relating to the future parenting of their seven year old son (“the child”) following the breakdown of their eight-year marriage.
The parties separated in August 2020 when the mother left the family home taking with her the child and her daughter from a previous relationship (“the child’s half-sister” or “the mother’s daughter”). The child has lived with the mother since that time. There have been various arrangements for the child’s time with the father and since February 2021 he has spent alternate weekends and some holiday time with him.
Since a time shortly after the child began spending overnight time with the father, the mother has held fears that the child has been neglected and sexually and physically abused in the father’s care. She has persistently reported her concerns which has led to the child being involved in ongoing investigations by various agencies. At times this has meant that the child’s relationship with the father has been disrupted.
The father seeks orders that would see him hold sole parental responsibility for the child, the child live with him and spend limited and supervised time with the mother. He contends that the mother poses an unacceptable risk of harm to the child and that the orders he proposes are the only way to protect the child from harm and to ensure that the child has a relationship with both parents.
The mother proposes a parenting arrangement in which she has sole parental responsibility for the child, the child lives with her and spends no time with the father. From the commencement of the proceedings until the last days of the final hearing she maintained a case that the father poses an unacceptable risk of harm to the child arising from sexual and physical abuse and neglect. In the course of the final hearing, she effectively abandoned this case but continues to contend that the orders she proposes are in the child’s best interests.
At the commencement of the final hearing in March 2023, the Independent Children’s Lawyer (“ICL”) appeared to support the mother’s case that the child should continue to live with her so long as the mother accepts that the father does not pose an unacceptable risk of harm to the child.
At the conclusion of the evidence, the ICL no longer supported an arrangement in which the child continues to live with the mother. The ICL now contends that it is in the child’s best interests for him to live with the father and spend supervised time with the mother though the ICL does provide a mechanism for this time to increase substantially to alternate weekends and half school holidays and on special days.
The question for me to determine is which of the proposed suites of orders is proper, having regard to the child’s best interests as the paramount consideration.
BACKGROUND
The parents, both aged in their 40s met through work in an Asian country where the mother was born and grew up. The father, an Australian by birth was working in the Asian country at the time.
The parties commenced their relationship in early 2010 at a time when the father was married. His wife was then pregnant with his child conceived through means of an egg donated by his step-daughter.
When the parents began their relationship in 2010 the mother’s daughter was five years of age. This child who has no relationship with her father has always lived with the mother and when the parties’ relationship was intact formed part of their household.
It is the mother’s contention that the father is a heavy drinker. She contends that the father often spoke aggressively after he had been drinking and that her daughter and later the child were “terrified” of him. It is the father’s evidence that throughout the relationship and since separation his drinking is not excessive and raises no concerns with respect to the child. This dispute is a matter to which I will return.
Both parents contend that the other engaged in family violence throughout the relationship and each deposes to incidents of this nature from 2011. The mother alleges that the father sexually and physically assaulted her and engaged in psychological abuse and financial control. The father contends that the mother physically assaulted him on a number of occasions and denigrated him in the presence of her daughter and later the child. While the mother has always agreed that she injured the father in some of their physical altercations, it is her case that any injuries that she may have inflicted on him resulted from her acting in self-defence. The parents’ respective contentions concerning family violence is also a matter to which I will return.
In 2012 the parents were married in Australia. The father obtained employment in a second Asian country in April 2012 and the mother and her daughter moved to live with him in that country.
In February 2015 the parties and the mother’s daughter returned to live in the mother’s home country where the child was born a few months later. There appears to be no dispute between the parties that the mother was the child’s primary carer since his birth though the father appears to have been also involved in caregiving when the child was an infant.
As touched upon earlier, both parents allege that there were other incidents of family violence throughout their marriage. They both agree that there was a violent incident in November 2018 in which each parent alleges that the other was the aggressor.
In December 2018 the father was made redundant from his employment and the parties decided to relocate to Australia in hopes of a better life for the children and more employment opportunities. Initially, in late 2018 the father moved to Australia alone while the mother and her two children (“the children”) remained in the Asian country of her birth.
It is the mother’s case that the father continued to engage in violence towards herself and her daughter including when he visited the family in the Asian country and when the family were visiting him in Australia in 2019. These incidents will be dealt with later in these Reasons when considering family violence.
In or around December 2019 the mother and the children permanently moved to Australia and began living with the father in a property (“the coastal property”) which the mother believed was owned by the father. They then moved to a suburb in Region G where the children were enrolled in local schools.
In August 2020 there was an argument between the parents in which the father alleges that he was assaulted by the mother, a matter which she denies. The following week another incident occurred between the parties in which each parent alleges that they were assaulted by the other.
The father attended a police station two days later and a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the mother for his protection after he reported numerous incidents in which he claimed he had been abused at her hands.
The parties separated on 31 August 2020 when the mother left the former family home taking the children with her. They initially found emergency accommodation before moving to a refuge. The circumstances of the parties’ separation including the father’s allegations and the provisional ADVO are also matters to which I will return.
The father commenced proceedings in September 2020 in the Federal Circuit Court (as it was then known) seeking orders that he and the mother equally share parental responsibility for child and that the child live with him and spend time with the mother as agreed between the parties.
In November 2020 the parties attended a private mediation by telephone, which the mother attended from her then solicitor’s office. On the same day, a provisional ADVO was made against the father for the protection of the mother and the children arising out of an incident in which the father was present near the child’s school even though the whereabouts of the mother and child and the child’s school had been withheld from him due to safety concerns. The father contends that he was in the area by coincidence and had been previously unaware of where the child lived and went to school and that there were no matters of concern about his conduct while the mother makes serious allegations that the father initiated a “tug of war” over the child outside his school and attempted to grab the child. This incident will be considered in greater detail later in these Reasons.
On 4 December 2020 the mother filed a Response seeking orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father. The mother also sought orders for property settlement.
On 7 December 2020 the ICL was appointed. On that day orders were made for the child to spend supervised time with the father for two hours twice a week and that the father be responsible for the cost of supervision (“the December 2020 interim orders”).
In January 2021 the Child Inclusive Conference Memorandum to Court dated 27 January 2021 was released to the parties and ICL. It is recorded that each party reported to the Family Consultant (as Court Child Experts were then known) that the other party had perpetrated family violence including the mother who recounted two occasions when the father placed his hands around her neck. The father denied all allegations of family violence and claimed that the mother’s allegations of family violence and risk to the child were only made after the court process began, while the mother contended that any action taken by herself was in self-defence. The mother reported to the Family Consultant that the father drank excessively during the relationship and noting that the father acknowledged some history of drinking, the Family Consultant recommended that orders be made precluding him from drinking before and when spending time with the child and that orders be made for a regime of hair testing. The Family Consultant assessed that the child presented at that time, as significantly fearful that the father would abduct him though, it was unclear if this was based on the mother’s fears or the child’s experience of the father.
On 4 February 2021 orders were made with the consent of the parties for the child to live with the mother and spend time with the father each alternate weekend and one weeknight in the intervening week with changeover to occur at school or at a police station on a non-school day (“the February 2021 interim orders”). As the father’s excessive alcohol use had been identified as an issue in the proceedings orders were also made that he submit to CDT testing for excessive alcohol consumption at the request of the ICL. Although it later became apparent that the father had at this stage formed a new relationship which he had not given the mother, ICL or Family Consultant any information about his girlfriend (“the father’s girlfriend”).
On 5 February 2021 the child spent overnight time with the father for the first time in accordance with the February 2021 interim orders.
On 11 February 2021 after spending overnight time with the father for the second time, the child told the mother about what had occurred including that he slept in the same room as the father and his girlfriend and that he saw the father nude and on top of his girlfriend. The mother also observed that the child was putting his hands in his pants and playing with his testicles. The mother believed that the child’s reports and conduct indicated something of concern about circumstances in the father’s home.
The following day, 12 February 2021, the mother contacted the Department of Communities and Justice (“the Department”) to make a report of the child’s disclosures and after speaking to the solicitor who was representing her at the time, also took the child to police to report the allegations.
The mother’s concerns about matters reported by the child, her subsequent conduct and investigations initiated by the Department and police together with the father’s denials of ever having engaged in any untoward manner with the child are central matters in this dispute. Although at the end of the final hearing the mother had resiled from her contention that the father poses an unacceptable risk of harm on the basis that the child may be sexually abused in the father’s care, findings in relation to the mother’s actions and contentions about risk for the child are central to this dispute and require consideration later in these Reasons.
On 22 February 2021 after the mother collected the child from school following his weekend time with the father, the child made further disclosures to the mother about events at the father’s home including allegations of sexual abuse by the father’s girlfriend and that the father and his girlfriend engaged in sexual intercourse in his presence.
As a result of a further notification made by the mother to police in February 2021, the child was interviewed by the Joint Child Protection Response Program team (“JCPRP”)[1].
[1] The Joint Child Protection Response Program team which is made up of officers from police, and the Departments of Health and Community Services investigates allegations of serious child abuse. Police officers attached to this team are also known as the Child Abuse Squad. The JCPRP and Child Abuse Squad are used interchangeably in these Reasons.
In March 2021 the application for an ADVO against the mother for the protection of the father was withdrawn and dismissed.
These proceedings were transferred to the Family Court (as it was then known) on 30 March 2021 and at the next court event in April 2021, orders were made allocating the proceedings to the Magellan Program.[2] The Magellan Report prepared by staff at the Department was released on 21 April 2021.[3]
[2] The Magellan Program is a case management program in the Federal Circuit and Family Court of Australia (Division 1) that deals with serious allegations of physical and sexual child abuse.
[3] A Magellan Report sets out the involvement of the Department of Communities and Justice with the family.
Following an interim hearing on 28 July 2021 orders were made requiring that the father ensure the child is not left alone in the presence of his girlfriend, restraining the parents from engaging the child with any further therapeutic intervention and school counselling without the other parent’s consent, and restraining the parents from discussing any matters relating to the allegations of sexual abuse with the child.
From August 2021 the child was interviewed on a number of further occasions by police. It is the mother’s case that this arose from ongoing complaints made by the child about the father’s conduct and that her actions in reporting these matters to police which led to further interviews were at all times in accordance with advice she received from various agencies assisting her.
On 16 September 2021 the father filed an application seeking urgent interim orders that the child live with him and spend supervised time with the mother for two hours per week.
In October 2021 orders were made for the family to attend upon a Court Child Expert for assessment for the purposes of a Family Report. The family were assessed by the Court Child Expert (“the expert”) in December 2021.
Throughout October and November 2021 the mother says she received ongoing complaints from the child about abuse at the hands of the father and his girlfriend which she continued to report to the Department or police. As a result, further investigations were carried out concerning these allegations, including further interviews of the child. The mother was also in the habit of recording conversations between the child and herself about these allegations. All of the matters in relation to the allegations of abuse and the mother’s reaction to those complaints and surrounding circumstances are matters to which I will return.
In December 2021 following a defended hearing, the application made by police for an ADVO against the father for the protection of the mother and the children was dismissed.
In February 2022 the Family Report was released to the parties. The Family Report is a matter to which I will return in greater detail, but it suffices to say for the purposes of this background that the expert was very concerned about the child’s evident anxiety which the expert opined may relate to managing the intersection of the parents’ relationship rather than from the child’s discomfort associated with either parent.
When the expert interviewed the family, the main focus of the mother’s concerns related to her allegations about the father posing a risk of harm to the child arising from sexual abuse. The expert at that time recommended that if the Court does not consider that the child is at risk with the father due to abuse or excessive alcohol consumption, that the child live solely with him for three months and his time with the mother could then be introduced with orders prohibiting her from questioning the child or denigrating the father. The expert also opined that even a temporary cessation of the child’s relationship with the mother and half-sister is likely to be experienced as traumatic by the child and coupled with a change in school would represent a considerable upheaval and stress for him. The expert also expressed concern in relation to both parent’s allegations of family violence against the other.
Throughout March 2022 the child continued to make complaints about the father and the father himself was interviewed by police in relation to those allegations. Although, the child’s time with the father was interrupted by the mother withholding him from time to time, the child otherwise spent time with the father in accordance with the interim orders. The mother continued to allege that the child made ongoing complaints when he returned from his father’s care, and a similar pattern of complaints to and investigations by police continued throughout 2022. None of the complaints alleged by the mother and investigated by the Department were substantiated and none of the investigations by police resulted in the father being charged with any offence.
In May 2022 the parties were divorced.
On 10 October 2022 the Department closed its investigations in relation to the child and the child was referred for counselling, though the nature of this counselling was an issue in the proceedings and is a matter to which I will return.
On 28 October 2022 it was ordered by consent that the father provide the results of any CDT test that he has undertaken to the mother’s solicitors. At the time of swearing her affidavit, the mother had not received the CDT test results.
The mother deposes that she stopped recording the child’s complaints to her when he started seeing a counsellor in December 2022. The mother also sees this counsellor who was arranged through the Department.
From December 2022 to final hearing there were ongoing complaints by the child about his mistreatment in the father’s care that will be expanded up later in these Reasons.
On 27 February 2023 the first day of the final hearing orders were made for the proceedings to be bifurcated and that the final hearing proceed only in relation to the parenting dispute. It was noted that the property proceedings were not ready to be determined as there were outstanding property valuations.
THE MATTERS IN DISPUTE
The family violence allegations
It is central to the mother’s case that she was the victim of serious family violence perpetrated by the father against her throughout the relationship, which has resulted in fear of the father and anxiety. She also contends that the child’s reports to her of abuse at the hands of the father must be considered in light of this experience of family violence.
In written submissions made on behalf of the father, it is asserted that each of the parties make allegations in the nature of family violence against the other, but that it is not possible for the Court to “allocate blame on any of the incidents” except for an occasion on which the father verbally abused and denigrated the mother, which was recorded by the mother and the recording was admitted into evidence.
In the father’s written submissions, it is also asserted that there was insufficient time available to explore the incidents of violence with the mother under cross-examination. The transcript of the proceedings reveals that the father’s counsel cross-examined the mother extensively for almost two days. The father’s counsel was not ever curtailed in his cross-examination of the mother and it was entirely a matter for him to determine the appropriate topics for cross-examination. Towards the end of his cross-examination when additional time was given (beyond the estimates given for its completion), the father’s counsel suggested that he was being curtailed in relation to the cross-examination concerning family violence. I took issue with this suggestion at the time and allowed the father’s counsel further time. During that additional time other topics were explored and the topic of family violence was only touched upon to some extent. I do not accept the assertion that there was insufficient time available to explore the incidents of family violence with the mother under cross-examination as argued on behalf of the father.
When the proceedings were listed for a final court event at which additional oral submissions were made, the father’s counsel reiterated that the Court would not be able to make findings about whether one party was the victim and the other party perpetrated family violence, but contended that there is sufficient evidence to find that the parties perpetrated violence against each other. The mother’s counsel continued to seek a finding that the father committed acts of family violence against the mother, her daughter and the child. It was submitted on behalf of the ICL that there is insufficient evidence for the Court to make a finding that there was “a clear perpetrator” and a “clear victim”, but that the Court could find that there were some heated exchanges and some disharmony in the household when the parties were together.
For the following Reasons, I consider it necessary to make findings in relation to family violence.
The Full Court held in Amador & Amador[4] (“Amador”) that the High Court's decision in M & M[5] should not be used to support an argument that it is unnecessary for a trial judge to make positive findings in relation to abuse or violence between the parties. Indeed in Amador the Full Court affirmed that a trial judge should make findings if “they are available and necessary to determine what is in the best interests of the child”.[6] The Full Court went on:
It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse and sexual abuse against a child where parenting orders are sought and where the test to be applied is "unacceptable risk", with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.[7]
[4] [2009] FamCAFC 196.
[5] (1988) 166 CLR 69.
[6] [2009] FamCAFC 196 at [88].
[7] [2009] FamCAFC 196 at [96].
As also noted in Amador (supra) sections 60CC(2)(b), 60CC (3)(f)(i)(j) and (m) of Family Law Act 1975 (Cth) (“the Act”) contain provisions for matters which may be significantly impacted by findings that a party has assaulted another party[8]. Further, in these proceedings there are a number of specific contentions about matters relating to the child’s best interests that depend upon findings as to family violence.
[8] [2009] FACAFC at 94.
It is the mother’s case that the father’s acts of violence and attitude towards her throughout the relationship is central to her experience of him and is highly connected to her anxiety and mistrust of the father and concerns about his conduct towards the child.
The expert gave evidence about the risks for a child whose parent engages in coercive and controlling violence and research concerning the nature of the parenting style of the perpetrator parent. She also expressed particular concerns about the mother’s allegations that the father had choked her.
In addition, the expert gave evidence of the lens through which various services may have provided support for the mother. This may be relevant when considering the veracity of the mother’s evidence about the advice she received from such services if she were found to be the victim of family violence. For all of the foregoing Reasons, I consider it necessary to make findings in relation to family violence and the evidence enables that to be done.
Family violence - the evidence
In her affidavit, the mother first broadly deposes that the father was “physically, emotionally and financially abusive” towards herself, her daughter and the child during the relationship. She deposes that the father’s violence commenced at the beginning of the parties’ relationship and continued in some form until final separation. The father also makes broad allegations that the mother has perpetrated physical violence towards him which he contends has escalated in frequency and intensity.
Alleged events in 2011
The first specific allegation that the mother makes against the father is that she was sexually abused by him. According to her affidavit, on an undated occasion in 2011, the mother was staying with the father at his house at a nominated address. She says that she was tired after work and the father wanted to have sex. The mother deposes to telling the father that she did not want to and that she went downstairs to get away from him. According to her affidavit, the father followed her downstairs, took her by both hands and dragged her up to the bedroom and forced her to have sex with him. She says that she felt disgusted and dirty after the incident. The mother was not challenged about her evidence concerning this incident under cross-examination.
According to the father’s affidavit, the first occasion on which he was assaulted by the mother also occurred in the same year. He deposes that on an evening in “early 2011” when he was at a venue with a friend watching a televised sporting match, the mother grabbed him from behind “and in a short physical attack bit my thumb before she was removed from the premises by security”. The father deposes to being shocked and embarrassed and that his thumb bled profusely. The mother was not cross-examined about this specific incident. She was however asked about occasions when she caused injuries to the father generally to which she responded that any such injury was necessary in order to defend herself.
The father makes a further allegation that on a specific occasion in 2011 (10 September) he and the mother were engaged in a fairly trivial disagreement which “escalated rapidly to the point where [the mother] scratched me and then bit me on the arm”. The father deposes to photographing his arm (and annexing the photograph to his affidavit) and attempting to discuss the matter with the mother the following day, but that she did not respond. The mother was not cross-examined about this incident.
In the context of making allegations about the father’s violence generally, the mother deposes to numerous events in which the father became involved in altercations with neighbours, including physical altercations and that as a result, he was required to move premises on many occasions. The mother provides specific evidence about each of the premises in which the father (and later the family) lived at various times.
Alleged events in 2012
In her affidavit, the mother deposes to an incident in early 2012 when a branch from a neighbour’s tree fell and broke one of the father’s chairs and that the father then took a shovel and started smashing the neighbour’s gate and fence, causing one of the security guards to warn the mother about the father’s conduct. Under cross-examination, although the father agreed there were altercations involving neighbours in the Asian country, he denied that he ever broke or damaged any property.
Each of the parents make allegations that they were locked outside of their home by the other parent. According to the mother’s affidavit, she was locked out of the house by the father on three occasions. She deposes that on the first occasion “in 2012” after she complained about the father’s drinking and attending at “prostitute bars and brothels” he locked her and her daughter out of the house and that she had to stay in a motel with her daughter overnight. Under cross-examination, the father denied ever locking the mother out of the house.
The mother next deposes to an incident in about May 2012 when she left the home after an argument with the father and while she was outside, an American man started talking to her and invited her to a discotheque. She deposes that although she refused and said she was going home, the man put his hand on her shoulder and that this stage, the father appeared and pushed the man to the floor and punched him. According to the mother’s affidavit, the father yelled at her and was angry that she had spoken to another man.
When they arrived home, the mother deposes that the father yelled at her saying “go wash your hair and yourself. You need to wash yourself because another man touched you so you are dirty. Come to bed after”. The mother deposes that she did not comply with his directions and that the father then grabbed her hair and dragged her to the bathroom and made her wash her hair. She says that afterwards the father dragged her to the bed and forced her to have sex with him. She deposes that the next day the father went to the hospital to have his hand treated as it had been fractured when he punched the American man.
Under cross-examination, the mother was not asked about either of these incidents. Although the father agreed under cross-examination that there was an incident in which he fractured his hand, he does not depose in his affidavit to the circumstances in which this occurred. Under cross-examination, he denied punching the American man as alleged and gave evidence that there was an occasion on which he fractured his hand when he punched a wall in exasperation.
The father was not asked about either of the mother’s two allegations of sexual assault under cross-examination.
According to the mother’s evidence, the last mentioned incidents occurred in 2012 when the family were living in the second Asian country. The mother deposes that in the same year she met with her daughter’s teacher at the teacher’s request and was informed that this child had been very anxious at school, crying and hiding under the desk. When the mother spoke to her daughter about her anxiety and asked what was wrong, her daughter said “I have seen you and [the father] fighting a lot. It looks like you are being treated badly. It makes me sad”.
Events in 2015 and 2016
The parties moved back to the Asian country where the child was born in 2015. The mother contends that at this time, the father financially abused her by providing insufficient money each month to cover their expenses. She deposes to otherwise having no access to any other money, while the father continued to attend brothels and bars and spend $500 USD a month on alcohol.
As touched upon previously, the mother deposes that when affected by alcohol the father became aggressive towards herself and the children. She deposes to an incident in 2015 when the father arrived home drunk and she and both children were sleeping in her bedroom. According to the mother’s affidavit, the father started a fight with her and she walked downstairs to avoid the conflict and left the children in the bedroom. When the mother returned upstairs, she found that the father had locked the children inside the bedroom and she could hear her daughter crying. The mother said that when she asked the father to open the door, he swore at her and that she then asked her daughter to open the door, and heard this child say “daddy said no” and that this child continued to cry. The mother deposes to calling the paternal grandparents and asking them to speak to the father and that they did call him, but he ignored them. The mother then called her parents and they arrived at the home at her request. The mother deposes that the father then opened the door and that she then took both children to her parents’ home where she spent the night. The father does not address this incident in his affidavit and neither party was cross-examined about it.
According to the father’s affidavit, the next incident in which the mother was violent towards him occurred in August 2015, when the child was an infant and the father was at a bar. He deposes that during the evening the mother harassed him with phone calls and messages and at some point arrived at the venue with the child, put the child in his lap and walked out. The father says that he immediately left the venue and that the mother who was standing outside reached into his pocket, removed his phone and smashed it on the ground. According to his affidavit, the security guard assisted him to pick up the pieces of the phone, while the mother left in his car and that he then arranged for a taxi and took the child home.
The father deposes that when he arrived home, he noticed that his work bag which had been secure in his car was open in the kitchen and that his laptop and iPad (both being property of his employer) were missing. The father deposes that he “asked [the mother] where they were” and she refused to tell him and that he spent time looking around the house for them before she told him they were in the pond. He says that he then found his laptop and iPad submerged in the pond. The mother does not depose to any incident along these lines in her affidavit and was not asked about it in cross-examination.
The father deposes to a further incident in January 2016 when he attended a work function, and says that the mother harassed him throughout the evening through phone calls and text message. He says that he refused to leave the function and decided not to immediately return home due to the mother’s demeanour. According to his version of events, as he entered the lobby (of a location which is unclear) in the early hours of the following morning he “was assaulted by [the mother] which included my business shirt being ripped and my face being scratched”. The father deposes that when he returned home he found that the gates had been padlocked shut and he was forced to climb over them to gain access to their home.
The father claims that when he asked his driver what had happened that evening, the driver told him that he saw the mother throw the father’s bag (containing his passport) into the river, a matter that the father claims he subsequently confirmed as being correct. The father also claims in his affidavit that as a result of this incident, it became clear to him that the mother was monitoring and tracking his movements via a function on his phone because it explains how she was able to call him and ask him questions related to what he was doing at a particular location.
The mother deposes that on this occasion, the father left his bag in a taxi and accused her of stealing it. She attaches a document titled “General Declaration” made by the father for the purposes of obtaining a new passport dated 5 February 2016. In that document the father declares that he lost his passport as it was inside a work bag that he inadvertently left in a taxi on the morning of ... January 2016 and provides other details about efforts he took to recover the passport.
Under cross-examination, the father was asked about the Declaration he had made in relation to the passport. He agreed that the document he submitted to the Department of Foreign and Trade (“DFAT”) in connection to an application for a new passport on 5 February 2016 set out the circumstances in which he misplaced the passport, being that it was left in a work bag in a taxi. He also agreed that the occasion on which his passport was lost was the same incident in which he deposed that it had been thrown into a river by the mother.
The next specific event of family violence is alleged by the father to have occurred on 13 May 2016. According to his affidavit, on this day at approximately 9:30pm “a trivial disagreement suddenly turned physical”. His version of this event is simply “[the mother] gouged the right hand side of my torso, and bit the left hand side of my torso”. He deposes to removing himself from the situation, locking himself in his bedroom taking photographs of his injuries. According to his affidavit, he subsequently became aware that later that night after the incident, the mother had sent an email to the celebrant who had solemnised their marriage requesting a divorce. In his affidavit, he claims to have replied to the mother just after 3am and attached photographs of his injuries. The mother was not asked about this incident under cross-examination or shown the pictures that the father says he took of his injuries that night.
Alleged incidents of violence in 2017 and 2018
The mother next alleges that there was an incident on 21 October 2017 when the father locked her and both children out of the family home following a disagreement and that they were required to spend overnight in a hotel. The father was not specifically asked about this incident under cross-examination, but globally denied ever locking the mother out of the house. The mother was not cross-examined about any of the occasions on which she says the father locked her out of the house.
The mother also deposes in her affidavit that the father continued to behave in an aggressive and belligerent manner towards others in the community and to staff in the home such as a house keeper and a maid who she says resigned due to the father’s conduct. In this regard, the mother also deposes to being advised by the guard at the child’s preschool that the father had used a metal stick to “whack a taxi”, a matter that the father denied under cross-examination.
In a similar vein, the mother deposes to the father having an argument with a neighbour in which she alleges that he went to the neighbour’s home and started to shake the neighbour’s door and that other neighbours attempted to prevent the father from doing this, but he continued to swear at the man who was so scared that he hid in his house. She deposes that the father then picked up a wooden stick nearby and started hitting the neighbour’s motorcycle and other men in the neighbourhood ultimately tried to convince him to stop, which he eventually did and returned home. According to her affidavit, later when the father was not home, the man came to the mother’s door and asked that the father pay for the damage to the door. The mother was not challenged about this incident under cross-examination. When the father was cross-examined, he agreed to the broad question that he had an altercations with neighbours during his time in the Asian country, but was not asked questions about this particular incident.
It is the father’s case that shortly before he left the Asian country and came to live in Australia, there were a number of incidents in which he was assaulted by the mother. According to his affidavit, on 18 October 2018 he was physically assaulted. His entire account of this incident is as follows:
On 18th October 2018, I was again physically assaulted, the specific circumstances of which I cannot recall. On that occasions, gouges across my chest, scratches on my legs, and another bite to the inside of my arm. (sic)
The father alleges that six days later, on 24 October 2018, when he was packing a suitcase the mother began an argument with him. According to his affidavit version of events, “her argument turned to shouting and then scratching me across the chest area. I was not wearing a shirt at the time”. The father says that the mother threw his clothes and shoes out of the window to the garden downstairs and onto the carport roof. In her affidavit, the mother deposes that no such altercation occurred as deposed to by the father.
There appears to be no dispute between the parties that there was an incident shortly before the father moved to Australia in which each of them makes allegations against the other of a physical assault.
The mother’s versions of events according to her affidavit is that on or about 29 November 2018, the father was out late drinking and she sent him a text message at around 3am on 30 November 2018 asking him to come home. The mother annexes a copy of the text message to her affidavit. The mother deposes that she then went to sleep and was woken up by the sound of the father slamming the door shut and that he came upstairs to the bedroom and screamed at her, but she did not respond. The mother deposes that the child slept in the bed, that her daughter was asleep on a mattress on the floor and that she was lying on the floor in the same room. She deposes to hearing the father shout at her daughter:
You are an idiot. Your father owes me money for feeding you. Your father is fucking hopeless, he abandoned you and left you with no money, and now I have to feed you. I have to feed you. If I see him, I will give him a hiding.
The mother deposes that her daughter did not respond and appeared to be asleep and that the father kicked this child on her hip and said “wake up, you heard me fuckwit. Don’t pretend to sleep. Do you hear me saying that your fucking father left you and gave you no money for you to eat?”. The mother says that her daughter did not respond so the father kicked her on the hip again and the daughter then got up and started crying. The mother deposes that she immediately pulled the father off her daughter and out of the room, but that he would not leave her daughter so she bit his arm. The mother says she eventually managed to pull the father out of the room and close the door and that he grabbed her by the neck and pressed her against the wall with one hand and pinned her shoulder against the wall with the other and used the hand that was around her neck to slam her head against the wall repeatedly. The mother says that while he did this she screamed “please don’t hit me! Stop hitting me!”. She then deposes that she could not breathe and was scratching the father so that he would let her go and was scared for her life. She says that the father let her go and went to his own bedroom and that she went back into the bedroom with the children.
In his affidavit, the father first deposes to the following in relation to this incident:
[The mother] asserts that in November 2018 I retuned (sic) home intoxicated. [The mother] asserts that I kicked the elder child and that she intervened to stop this. [The mother] alleges that I banged her head against the bedroom door multiple times. I admit that there were instances in 2018 which I have described in my previous Affidavit. In those instances I have asserted the truth being that I had been locked both inside and outside of the home and had been physically assaulted by [the mother].
(emphasis added-otherwise, as written)
In another part of his affidavit, the father gives a more complete version of this event. He deposes to being embarrassed that he had to leave a function early on 29 November 2018 and says that when he arrived home, without warning the mother pushed him from behind, that he lost his balance and his right ankle twisted causing him to fall to the ground. According to his affidavit, while on the ground the mother sat on him and repeatedly slapped him, scratched him and gouged him on the face while he tried to use both arms to cover his face. He says that the mother punched him repeatedly on the upper body with her clenched fists several times and then ripped his shirt open and leaned over to bite him on his chest and right arm. The father claims in his affidavit that his driver witnessed the incident as did the children who were at the front of the house and that the child was crying.
According to the father’s affidavit, when he was able to get away, he locked himself in the bedroom. The father says that he took photographs of his injuries and sent them to a colleague and described what had happened to make a record of events. The father deposes that he got up at 5am to ensure that he did not encounter the mother before leaving home and “to have time to go to the nearest hospital to have my ankle checked”. He says that the ankle was not broken, but sprained and that prior to leaving the home he searched for his shoes and eventually found all of his shoes in the swimming pool.
The father deposes to exhibiting to his affidavit the photographs and email that he sent to the mother and copied to another person dated 5am on 30 November 2018 in which he wrote:
And I believe I may have a broken ankle after you unexpectedly attacked me in front of the house without warning and I fell to the ground before your biting, scratching, hitting, and hair pulling.
The annexure also contains a number of images which purport to have been sent between 11:45pm on 29 November 2018 and 12:48am on 30 November 2018.
Under cross-examination, the mother was not challenged about any aspect of her version of this event. There was however, some cross-examination about the injuries that the father received in the course of this incident. The mother was asked a broad question about whether she had seen the photographs attached to the father’s affidavit and was then taken to some photographs, which the father deposes were taken of his injuries on the evening of 29 November 2018. One of these images is very small (about 2cm x 3cm) and I am unable to determine what it depicts, while the second photograph appears to show some grazes and dried blood on various parts of the father’s face. The mother was then shown another series of photographs that show what appears to be the surface of skin with some red marks and bruises and others which depict marks to the upper arm and scratches on the forearm of the father. The following questions were then asked and answers given:
Question: The witness has them, your Honour. I had forgotten that. So you’ve seen those photos before, haven’t you?
Answer: Yes. They are defence. I can say these defence.
Question: I beg your pardon?
Answer: They are defend. I can call these one and defend.
Question: All right. These photos show you - - -
Answer: Yes.
Question: You had to injure him to defend yourself; is that what you’re saying?
Answer: Correct.
Question: Right.
Answer: To defend for my daughter and myself.
Question: Okay. And - - -
Answer: This happened after 3 o’clock. Not like what he said, 9 o’clock.
Under cross-examination, the father was asked about this incident. The father did not specifically remember receiving the text message sent by the mother at 3am. He said he remembered arriving home that night after the function vividly, but denied that he came upstairs, was angry, screamed at the mother and woke her up. He denied shouting at the mother’s daughter and when asked whether he kicked this child on the hip, the father said that he had never physically assaulted this child. The father also denied the mother’s account that he yelled at her daughter and kicked her again when asked whether the mother had bitten his arm because he wouldn’t leave the room, the father said that the mother had bitten him on a number of occasions adding “I – I can’t – I know she bit me on that evening”. When asked whether he grabbed the mother by the neck, pressed her against the wall, pinned her shoulder against the wall and slammed her head against the wall repeatedly, the father said “no and never”.
In her affidavit the mother denies that the event in question was a surprise farewell function as the father contends and denies that she threw the father’s shoes in the pool the following day. The mother deposes that as a result of the father hitting her head multiple times, she had a headache which lasted for several years and for which she first sought medical attention later in January 2020 when she was living in Australia. Attached to the mother’s affidavit is a record of notes from the consultation with her doctor on 10 January 2020 in which it is recorded by the doctor:
headache for three weeks
this week improving
head trauma 1 year ago left side of head
dizziness first week only
…
some tenderness parietal left and upper cervical occipital left and an image request was made seeking for a CT scan of the head noting (Headache, trauma 1 year ago)
The mother was not cross-examined about the injuries that she said she suffered in this assault.
There was a further undated incident in 2019 in which the mother deposes that she and her daughter were locked out of their home by the father for the third time and were again required to stay in a motel for the night, before their maid let her back into the home the following day. Neither party was cross-examined about this incident.
Incidents in 2019
Although the father does not set out any version of this event in his affidavit, it became apparent under cross-examination that he did not dispute his involvement in at least one incident that led to an action from police when he was back in the Asian country in January 2019.
The mother’s version of events is somewhat difficult to follow as she deals with it in several parts of her affidavit. However, it is clear that she deposes that a series of events at this time began on the night of 10 January 2019, when she says that the father went out drinking and came home at 2am the following morning. The mother says she was asleep with the children in their bedroom and received a call from the maternal grandfather who informed her that the father was outside their home, banging on the gate and waking up the neighbours who had called the maternal grandfather over and requested that the mother let the father in. The mother deposes that she got up and turned on the electricity so that the gate to the house could open and informed the maternal grandfather that the father could now open the gate as he had the keys with him. The mother then received a call from her father who told her that he had told the father that the door was open, but the neighbours were reporting that the father was still banging on the gate outside.
The mother deposes that when the father came into the home he asked her about his bag and she told him that it was in the cupboard. She deposes that during the conversation, the father was verbally abusive and she recorded the conversation on her phone and then went back to bed after the conversation. The recording of the conversation was admitted into evidence and played in the proceedings.[9]
[9] Exhibit 4.
The mother deposes to being approached by one of the local security guards who informed her about the incident the previous night. She says that she was told that the father was screaming very loudly, that he snatched a phone from the local security man and picked a fight with police and as a result he was issued a warning from police for disturbing the area.
The mother says that there was a further incident involving the father’s poor behaviour that led to the involvement of police the following night. According to her affidavit, the father went out drinking on 11 January 2019 and shortly after he returned home at about 9-10pm, the parties began arguing. She deposes that during the argument the father went downstairs and started banging on the gates and screaming words to the effect of “help me! This woman is a danger to the children. Help me. Call the police”. The mother says that while he was doing this, she started recording the scene on an iPad and as a result of the father’s screaming, one of the neighbours called the police to attend at the home. When the police arrived, they directed the father to attend the police station and during the commotion, he took the child and drove him to the police station on his motor scooter and the mother was unable to stop him. The mother also deposes that while she was locking up the house, she received a phone call from police who told her that the father was refusing to give a statement unless she was present.
The mother deposes that she went to the police station with her daughter and when she arrived, she was asked by police to tell the father to “stop smoking and behave, otherwise [he] will be in trouble”. The mother deposes that the father did not listen so she called the paternal grandmother and asked her to call the father and ask him to behave or he would be in big trouble. The mother says that she gave the phone to the father and his parents talked to him and the paternal grandmother told her that she told the father “to go home to Australia”.
According to the mother’s affidavit, when she arrived at the police station a police officer told her that the father had been very disruptive in the local area and as he had only been issued with a police warning for making a commotion the previous night, his Residency Permit was to be revoked by police. She was also advised that if the father continued to reside in the area after having his permit revoked, she would be fined and consideration would be given to reporting the father to the Australian Consulate so he would be banned from returning to the country. The mother says that she was then handed a “Summons” from the local police to attend an interview a few days later. A translation of that document which was later prepared and admitted into evidence describes it as an “invitation” to the mother to be present at 9am on the 14 January 2019 to “clarify there’s a foreigner/s residing” at her address.[10]
[10] Exhibit 34.
Under cross-examination, the mother further clarified that the invitation (which she maintained was more akin to a summons as she was required to comply with it) was for the purpose of attending at the police station to pay a fine in relation to the father disturbing the area as she was the occupier of the premises. To gain an understanding of the document for the purposes of cross-examination (as it had at that stage not been translated) the interpreter present in Court for the assistance of the mother was asked to translate the document’s contents. The interpreter’s translation was consistent with the description given by the mother and the official translation of the document which was later admitted into evidence as Exhibit 34. The interpreter said that it was an invitation, addressed to the owner of the premises to be present at the police station to make sure of an issue about a foreigner residing at that address and that the mother was to bring the invitation letter.
There is no dispute between the parties that two days later, the father left to return to live in Australia and at that stage went alone and the mother and children were to follow.
Under cross-examination the father was asked generally the events of 10 January 2019. He said that he is not sure exactly when he got home, but that it is possible that it was at 2am (on the 11th). When asked whether he was being very loud, screaming, snatched a phone from a local security man and picked a fight with police, the father said “I was locked out of the home. I was knocking on the gate. That is the noise she’s referring to”. When asked whether he was issued a warning from the police for disturbing the area, the father said he didn’t know, but said that he was given a document in the local foreign language, but did not ever bother to find out what the document said as he returned to Australia. When asked about how the police came to be at his home in the first place, the father said that he believed the neighbours called the police because of the noise he was making. The father said that police came around and asked him to attend at the police station the following day or the day after as they were following up on the noise complaint. When asked about the final outcome of the event, the father said it ended with police leaving him with a piece of paper.
When the father was cross-examined it appeared that he took issue with the mother’s evidence about the invitation/summons that she was given by police. After the interpreter confirmed the translation of the document, the father then conceded that the police were concerned about an issue relating to a foreigner at that address and agreed that the foreigner in question was him. When asked whether the issue related to him banging on a gate in the middle of the night upsetting the neighbours, the father said that he “read the issue differently” and claimed that the issue of concern was that foreigners need to be included in a household book, which must be recorded at the local police station and he believed the household book was not up to date. The overall tenor of the father’s answers under cross-examination was that he agreed he attended the police station and that he was given a document in relation to a matter concerning himself. At no stage did he assert that his attendance upon police related to any other matter (such as the mother’s conduct).
The mother was also cross-examined about her version of this incident. She deposed that the word “invitation” and “summons” in her native language essentially mean the same thing and confirmed that the document she was given by police on 11 January 2019 was a summons for herself (as opposed to the father) to attend the police station and pay a fine that had been imposed as a result of the father disturbing the area. The mother said she was required as the head of the household to pay the fine for the father’s disturbance in the neighbourhood.
Cross examination of the father also focused on the recording that the mother had made of conversation with the mother in the early hours of the morning on 11 January 2019.[11] Prior to the recording being played in Court, the father’s attention was drawn to his affidavit where he deposes that he is not a verbally abusive person. He denied when asked in oral evidence if there were times where he had been verbally abusive towards the mother. The recording of the conversation was then played and throughout the conversation, the father is heard to be swearing while asking the mother about the location of his bag. In the recording after the mother says five times that the father’s bag is in the suitcase, the following is recorded:
Father: No no my bag belongs in cupboard where I fucking left it and nobody should fucking touch it, where is it?
Mother: I tell you already
Father: Where the fuck is it? Here we are in the middle of the fucking night all the fucking neighbours are going “fucking [the mother]’s an idiot” aren’t they? All of them. You’re a fucking piece of shit you know that. A fucking piece of shit. You can go and get fucked.
[11] Exhibit 4.
During re-examination when asked to tell the Court about what had happened prior to the recorded conversation with the mother, the father said that he had been locked out of the house.
The father was not asked any questions in cross-examination about the events of the evening of 11 January 2019 other than those that related to his attendance at the police station.
According to the mother’s affidavit after the events of 11 January 2019 she and the father communicated “very sparsely, if at all.” She also says that 13 January 2019 was uneventful. She deposes that she took the children out on 13 January 2019 and that they left the home at 9am. When they returned at about 6pm that night, she saw that all of the father’s belongings had gone and presumed that he had left and returned to Australia. She was not cross-examined about her evidence that no significant event occurred after 11 January 2019. It was not suggested to her that she attacked the father at any stage during any event between 10 and 13 January 2019.
According to the father’s affidavit, on the evening of 13 January 2019 he was playing with the children in the upstairs bedroom. He then deposes:
[The mother] commenced to hit me with fists and hands in front of the children. She hit me around the upper body and face with her hands. I pushed her away and left the room. I went downstairs.
The father’s version of events is that he decided to leave the home “to escape the volatile and escalating situation”, but discovered that the doors to the home were locked and that the mother had turned off the power to the garage to prevent him from leaving. The father says he attempted to call the police using the emergency number, but that each time he called, the call was terminated at the receiving end as he was not able to converse effectively in the local language. He then says that he used a small stone from the garden to bang on the gate to draw attention from neighbours and passers-by and called out for “help” and “police”.
The father deposes that police arrived at the request of one of the neighbours and that he was asked to attend at a local police station which he did, taking the child with him. According to his affidavit, the mother then arrived and tried to explain that “it was all a misunderstanding, and that I was being irrational because I was intoxicated”. He also deposes that while at the police station the mother called the paternal grandparents and tried to convince them to get him to withdraw his complaint (against the mother). The father deposes that the mother’s brother arrived at the police station at some point. He explained that he had been attacked and locked out of the house and showed the mother’s brother the injuries “from the previous November assault” and said “we had to make this stop”.
The father annexes to his affidavit some unclear photographs that appear to show scratch marks on his skin. These photographs also bear the words “13 January 2019 12:15 and 12:16 am”. He also annexes a document headed “report on illegal violation” (“the police report”) which is undated, unsigned and not certified. No fields in this document are complete other than a handwritten statement under the heading “report to local police office on the following violation”. Although some of the document is illegible, the following words can be read:
I came home at 8:30.
Today I watched Australia vs India playing cricket […]. After the cricket [illegible words] Iran in soccer and went home.
I entered the home and my wife attacked me in front of the children. I have suffered injuries on my arm as a result.
I did not respond violently in any way.
I removed myself from the home and contacted the police.
This is not the first time my wife has been violent. As well as the [illegible words] I have showed the [illegible words] the photographs are [illegible words] she attacked me Thursday 29th November.
I am not concerned for my own safety, I am concerned for the safety of my children. That is [illegible words] I called the police.
I only want to guarantee the safety of my children.
The mother was not cross-examined about her evidence that nothing at all occurred on the evening of 13 January 2019 and it was not put to her that the father’s version of events is correct. The mother was also not challenged about her evidence that the father’s conduct had disturbed the neighbourhood on both the evening of 10 January/ the early hours of 11 January and on the evening 11 January 2019 and that the first disturbance resulted in the father being issued with a warning and after the second the father was required to attend at the police station and the mother was subsequently called to assist.
The mother was asked under cross-examination about the police report that the father claims to have given to police on 13 January 2019. When it was suggested to the mother that this document is a statement that the father gave to police about an assault upon him, the mother said “that’s why they call me and said he – he wrote silly things”. She said “they did not accept this one” and “they received, and they said, this – nonsense, and they asked me to … on his behalf”. The mother added “nobody acknowledged this” and when further asked whether she knew what the documents purports to be, she said it was a document given to the father to write out a report for his “bad behaviour”. The mother also said “it’s a report on illegal violation that he did it on that night. The police make him to report about his bad behaviour”.
Alleged incidents of family violence in Australia – 2019
There appears to be no dispute between the parties that the father permanently left the Asian country in mid-January 2019 and that it was agreed the mother and children would later relocate to Australia as well. There is also no dispute that between June and August 2019 the mother and the children visited the father in Australia and in July 2019 the family were staying at the coastal property.
According to the mother’s affidavit, there was a violent incident on an undated occasion in July 2019 when the father arrived home with some groceries and they had an argument about him buying powered milk rather than baby formula. The mother deposes that as they argued the father came closer to her causing her to step back and run into the dining table. She says that the father grabbed her neck and pushed her into the dining table as he screamed at her and hit her head against the corner of the table and that she fell to the floor. She deposes that he began to choke her while continuing to scream at her, pushed her and got on top of her grabbing her neck and head and continuing to choke her and repeatedly hit her head on the floor. According to the mother’s affidavit, both children were also in the living room and saw what happened. The mother says that when the father stopped choking her she ran into her daughter’s room taking the child with her.
At this point in her affidavit the mother deposes to feeling ashamed that this was happening in her family life and that in her country it is not common for women to speak up about domestic violence. She also deposes that tickets for herself and the children had been booked for their return to the Asian country in mid-August 2019 and that they could not afford to purchase any other tickets to go home as they had limited funds.
In his affidavit the father responds to the mother’s allegation about this incident set out in her Notice of Risk filed 3 February 2021 as follows:
I admit that there was an argument between June and August 2019 when I purchased powdered milk. [The mother] incorrectly assumed that I had purchased powdered milk instead of baby formula. I deny that I grabbed [the mother] around the neck, hit her against the corner of the dining table and then choked her. No such incident occurred then or ever.
Other than denying the mother’s allegations the father does not depose in his affidavit to any version of this event.
The mother deposes that following this incident, she and the father did not talk much, that she was fearful of him and that he restricted her access to the television, the internet and her mobile phone for the rest of the time that she was in Australia.
Under cross-examination, the father initially denied that he argued with the mother about the purchase of the powdered milk saying that there was an argument but it was very one-sided as he was not responding to it. When asked whether he did anything to try to get the mother to stop arguing with him, the father said “I –I- I tried- I- I tried verbally to try and clarify- what the issue was”. When asked what happened in the incident, the father said:
I had woken early and gone to the supermarket and came back with some groceries, amongst which was some powdered milk. [The mother] saw the powdered milk and took exception to it. She said I should have bought baby formula in circumstances where the boy was five years old.
The father did not say anything in oral evidence about any physical interaction between the parties on that day.
The father was taken to the paragraphs in the mother’s affidavit in which she deposes to this incident and denied grabbing her neck and pushing her into the dining table while screaming at her. When asked whether he began to choke her while continuing to scream at her and whether he pushed her to the floor and got on top of her, the father said “absolutely not”.
Alleged violent incidents in 2020
It appears that the parties agree that the mother and children came to live in Australia permanently in around December 2020 and that the family moved to live in an apartment in the Region G. Although the mother alleges that the father did not appropriately financially support the family and both parties agree there was a dispute in relation to the children’s enrolment at school, neither party alleges that the other was violent for the first couple of months that the family lived together in Australia.
The father deposes to the first incident of violence after the family moved to live in Australia in “approximately April 2020” when he says that after he returned from work there was a dispute between himself and the mother in relation to dirty dishes that he said were present in the kitchen. His account of this incident is as follows:
This escalated to [the mother] slapping me about the head while I was in a seated position as she repeated “Your nose is getting longer, your nose is getting longer”. I was shocked at the suddenness of [the mother]’s escalation to violence, and stated “Do not hit me in front of the kids”.
(as written)
Neither party was cross-examined about this incident.
There were two incidents in August 2018 in which each party makes allegations against the other.
The father’s affidavit version of the first such incident is that both children attended a particular extracurricular activity and as the mother was driving home under his supervision with the children as passengers, the mother began arguing with him and her driving became increasingly erratic. He says that he asked the mother to concentrate on driving rather than arguing and that on entering the street on which they lived, and before entering the driveway to their apartment complex, the mother took her hand off the wheel and slapped him across the face, leaving the car in the driveway blocking access for other residents and that he was required to park it.
According to the mother’s affidavit, on this occasion, she and the father had a conversation during the car journey home from the child’s extracurricular activity. She denies that she slapped him following the conversation and also denies the balance of his account in relation to leaving the car in the driveway. She says that the father parked the car at their building because she had difficulty manoeuvring the car into a small car space.
The mother’s affidavit version of the second incident in August 2020 is that she was vacuuming the apartment and the father was sitting on the couch using his laptop. She deposes that the child took a basket of washing and threw it across the living room floor and also threw toys from his toy box around the living room. While this was happening the mother says the father was laughing and clapping, cheering the child on while she asked the child to stop as she was trying to vacuum. The mother deposes that the child then started removing the power plug from the socket and that the father was laughing and clapping which was encouraging the child to continue to misbehave. The mother said she asked the father to leave so that she could finish the vacuuming and he responded “I’m not fucking going anywhere”. The mother then closed the father’s laptop but denied that she did this with force or that she damaged it. The mother said her daughter left the room when the argument began.
The mother deposes that the father became upset and got up from the lounge, grabbed both of her wrists with extreme force and repeatedly swung and bashed her wrists against the wall forcibly causing immediate pain which she says lasted for days after the incident. The mother took photographs which were annexed to her affidavit of her wrists after the incident. The mother deposes that after the father smashed her arms against the wall, he sat down on the lounge and continued to clean by picking up the items from the floor. She says that she picked up a television remote control and placed it onto a table and asked the father to leave but he refused.
The mother said that after she finished cleaning she began preparing food for the child’s dinner and while she was feeding the child, the father walked over to her and said words to the effect of “you are fucking bitch, fucking idiot, you’re pathetic. Go and look at yourself in the mirror”. The mother deposes that the father continued to verbally abuse her for some time and she became upset. She took a glass of water and splashed him with it and told him to go away, said she was trying to feed the child and didn’t want to talk to him and asked him to stop swearing and leave her alone. The mother deposes that the child thought this was a game and picked up the same glass of water and splashed the father but she told the child not to do that. The mother said that she then told the father that she was going to report that he physically and financially abused the family and never gave them enough money to survive. After further discussion concerning finances the mother deposes that the father left the apartment.
The mother deposes that the following day she saw an email from the father in which he alleged that she had abused him and set out his version of events which she denies.
Under cross-examination the only questions the mother was asked about this incident related to the email sent by the father in which he makes complaints about her conduct. When asked, the mother said that she remembered the email but described it as “fake evidence”. Later when it was put to her that email related to the events of the previous day, the mother said “that’s what he said. That’s what I said it’s fake. Nothing like this happened”.
The father’s version of this event does not contain any context for the incident. He simply starts his account by stating that on this date, the mother “became verbally aggressive towards me, and moved closer to me” as he “remained seated on the couch”. He describes the mother as standing over him and shouting and that she began to poke him. The father deposes that he asked the mother to “leave me alone” and “get out of my face” and “stay away from me” and that the mother then shouted at him to leave the home. He says that when he stated that he was doing nothing but sitting and working quietly, the mother began hitting the laptop and telling him to leave the home.
According to the father’s affidavit, the mother hit him across the head with an open hand while he was seated and he tried pushing her away with his palms and at one point he grabbed hold of her wrists as she attempted to pummel him. He deposes that the mother picked up two of the child’s toys and smashed them on the ground and then picked up the remote control and threw it at the television causing the remote control to smash. The father deposes that he stood up to walk towards the bedroom and that the mother threw a bottle of water over him and a “phone station” at him, striking him in the forearm. He says that when he returned to the doorway with his bag, the mother threw a second bottle of water over him.
As previously indicated, I do not accept the mother’s submission that the child does not receive a benefit from having a meaningful relationship with the father but rather I consider that it is not possible for him to have a meaningful relationship with both parents. Accordingly, I am of the view that the child would experience a real loss from the cessation of his relationship with his father and paternal family. The advantage to the child in the mother’s proposal, or as agreed by the expert, the less detrimental impact upon him of the mother’s proposal is that he would be no longer exposed to all of the risks identified as arising from having both parents in his life as previously discussed at length.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Although both the father and potentially the ICL seek orders that would see the child spend time with the mother three hours per fortnight at a contact centre on an indefinite basis, there is no evidence of any contact centre available to offer this service.
Capacity of each parent and any other person to provide for the child’s needs
I am of the view that this is a weighty factor in the determination of this dispute. As discussed earlier, the concerns that the father raises with respect to the mother’s care of the child and the risks that he contends she poses were articulated as shortcomings in her parenting capacity in the course of additional oral submissions made on his behalf. It was submitted by the father that the mother’s incapacity to understand that the child is not being abused by the father or his family and that he would benefit from a relationship with him are such basic concepts indicating her lack of capacity that they must reflect on her capacity to raise the child appropriately more generally.
As I have previously outlined, I am satisfied that the mother’s response to the child’s ongoing complaints about the father is a significant contributing factor in the difficulties that the child now faces. It was not suggested to the expert however that the actions of the mother in his regard could be characterised as a lack of parenting capacity generally. The expert is of the opinion that the mother’s conduct in response to the child’s complaints is a function of her highly valued belief that the child was being harmed in the father’s care but the expert said she didn’t think that the mother was “a bad parent” in any other sense.
As touched upon earlier, the ICL frames her submissions about an additional risk posed by the mother in a somewhat different manner to the father. In the course of oral submissions, the ICL’s counsel submitted that the impact of the mother’s highly valued idea (about the risks posed by the father) “may not be the only highly valued idea that she holds now or into the future”. In particular, the ICL’s counsel expressed concerns about the mother’s doggedness and refusal to accept what the experts or authorities had found about the father’s alleged abuse and contended that such an approach may not be limited only to ideas about the father. The ICL’s counsel conceded however that there is no evidence of any other highly valued idea held by the mother.
Under cross-examination, the expert maintained that the mother’s view that the child had been abused in the father’s care was a “highly-held view”. After drawing a distinction between a “highly-valued” opinion or view and an “over-valued opinion”, the expert could not say that the mother had an “over-valued” view about the father’s alleged abuse. When specifically asked whether the behaviour that the mother exhibits in respect of the child’s relationship with the father might also be exhibited with respect to other matters related to the child, the expert said that this may be the case if the mother had a “propensity to hold over-valued beliefs” which can be exhibited in other settings. The expert said that she was not aware of that happening in relation to other matters for the child or that the mother did in fact have an “over-valued” belief about the risk posed by the father. In this regard the expert’s evidence does not support the contention of the ICL about the risks of the mother’s conduct harming the child as a result of over-valued views or opinions in relation to matters concerning the child more generally.
So far as the mother’s parenting capacity generally is concerned, I attach some weight to the fact that this has not been identified as a matter of concern by officers of the Department who have worked with the mother for some time and there is no suggestion for example by the Departmental officers that the mother be assisted with her parenting by a family support service or the like. No concerns have raised with respect to the mother’s parenting of her daughter.
I now turn to the father’s parenting capacity. It must be taken from the expert’s recommendation that so long as the Court does not consider the child is at risk with the father due to either abuse or excessive alcohol consumption, that the child move to live with him, that the expert considers in a general sense that the father has the capacity to provide for the child’s needs including his emotional and intellectual needs.
However, under cross-examination the expert clarified that the risk of abuse potentially posed by the father to be assessed by the Court should also include any risk that he poses as a result of a finding that he was the perpetrator of family violence.
As noted earlier in these Reasons, the expert explained that the risks associated with a parent who engages in coercive and controlling violence is well documented. She explained that even if the other parent is no longer there so that the child is not exposed to the family violence that the risks are an overly-authoritarian parenting style, denigration by the perpetrator parent of the other parent, and the risk as a child ages and begins to form their own opinions that a perpetrator parent will be intolerant and not accepting of those opinions. In additional the expert identified the “real risk” that particularly as a child ages that they may become the victim of violence themselves.
The other risk also posed by the father that may be considered to arise from parental incapacity is the risk associated with excessive alcohol consumption. This was identified in the expert’s report as follows:
Generally a child may be at risk in situations where even moderate alcohol consumption is occurring, due to the likelihood of decreased attentiveness around the child’s needs.
The expert opined that although the father acknowledged that he returned a test which indicated excessive alcohol consumption, he probably minimised this and did not appear to the expert to believe that his drinking may have been problematic. The expert opined that if the father had substantially decreased his consumption of alcohol then this would be beneficial for the child.
For the reasons given, I am not satisfied that the father has ceased his alcohol use or that his alcohol use has substantially decreased. Although it appears that there has been some reduction in the father’s alcohol use, no firm findings can be made about that reduction and the likely maintenance of a reduced level of drinking in the future. In these circumstances I am of the view that there is some risk for the child if the child is to live with the father especially as the father proposes orders that would see him have sole responsibility for the child’s day to day care.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
The child is almost eight years old. He was born in an Asian country where he lived with his mother and half-sister who share his ethnicity and cultural heritage prior to moving to Australia in around December 2019. The child’s father who was born and raised in Australia lived with the family while the relationship was intact though there was a period of about 12 months when the father alone moved to Australia ahead of the rest of the family.
The child’s first language is spoken by his mother and half-sister and as although the child speaks English at school he continues to be assisted through English as a Second Language (ESL) program at school. The father is not fluent in the child’s first language.
Although the father’s heritage is of a western European country, he gave oral evidence that there were no particular traditions associated with his cultural heritage that are of significance to him. From the father’s perspective the child’s paternal heritage is “Australian” and the child is able to enjoy the benefits and the traditions of that heritage through living in Australia.
It appears that a significant aspect of the child’s identity relates to his Asian heritage particularly given that he has spent more than half his life in the country of his birth and that his principal attachment figures (his mother and half-sister) and maternal family share that heritage. The father had no particular plans about how the child would continue to receive the benefits of his rich cultural heritage and promote those aspects of the child’s identity if orders were made as he proposes. As his proposal is also for the child to spend such limited time with the mother, I consider that if such orders are made the child will experience a real loss that goes to the heart of the child’s life experience and identity.
Under the mother’s proposal the child will continue to be connected to his maternal background and tradition through living with his mother and half-sister and maintenance of connections with his maternal family overseas. The child will maintain his identity through his paternal side as an Australian through his continued attendance at a local school and through social connections in the Australian community at large.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I have no doubt that each parent loves the child and genuinely considers that the orders that they each promote are in his best interests. Each of the parents has been responsible in the roles they have played in the child’s life with the mother being the child’s primary caregiver and in the father’s case through the care he has provided to the child for four nights per fortnight for two and a half years.
Although each of the parents (and in particular for the mother), made allegations the other parent was neglectful of the child throughout the proceedings, neither parents pressed this contention at final hearing. There is no evidence to suggest that either parent has been neglectful in their care of the child.
Although the expert did not identify the father’s attitude towards the responsibilities of parenthood as a matter of concern to her, when given further information about the circumstances of his relationship with his other child, the expert said that this information casts the father in a light where his attitude towards his responsibilities of parenthood are “perhaps less than ideal”.
Family violence relating to the child or a member of the child’s family
Family Violence Orders
This matter has been previously dealt with at length and for the reasons given is a matter to which I attach significant weight determination of this dispute.
In my view some inferences can be drawn from the previous ADVOs in place against each of the parents for the protection of the other. As previously noted I infer from the fact that the interim order made for the protection of the father did not include the children that I infer there were no particular concerns about the children at the time. Further, the interim order in place for the protection of the mother and children appears to have not been made as a final order on the basis that the only evidence before the Court related to a single incident.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
For the reasons previously given, the need to bring an end to the dispute between the parents is central to the best interests of this child. Ultimately, the Family Consultant attached significant weight to this matter and I accept her evidence as to this matter and her evidence as a whole.
In my view the order most likely to lead to the institution of further proceedings in relation to the child is the proposal the ICL. It is in my view predictable that a dispute may arise in relation to any report obtained from the mother’s psychologist which on the ICL’s proposal would trigger a new parenting arrangement in which the child is to spend substantial and significant time with her. It is also virtually inevitable that if such an arrangement were instituted the cycle of the child complaining to the mother about the father’s care and the mother’s response to it will recommence with the likely consequence of the mother failing to return the child at the end of her time with her or either party will commencing contravention proceedings or proceedings for recovery order.
It is also likely in my view that if orders are made as proposed by the father that either in the short or the long-term the mother will initiate new proceedings to revisit the parenting arrangements for the child. Although the father’s proposal does not provide for a revisiting of the orders for indefinite supervision it was submitted on his behalf that it is expected the mother or even hoped that the mother make the necessary changes and will reinstitute proceedings to enable the child’s relationship with her to be restored in the future.
The mother’s suite of orders are the least likely to lead to the institution of further proceedings in relation to the child as they make no provision for the father to spend time with or play any role in the child’s life.
Any other relevant fact or circumstance
In submissions made on the behalf of the father, reference is made to the expert’s original recommendation that the child move to live with the father and after a period of no time with the mother for three months, the Court may consider the child spending day time only with the mother. There was a suggestion that such a recommendation may “bring home” to the mother the harms occasioned to the child of questioning and causing investigations to be instituted whenever he makes a complaint about the father. The tenor of the father’s submissions is that his proposal that the child’s time with mother be supervised is based on a similar purpose of “bringing home to the mother” the risks of harm to the child inherent in her approach.
There is no best interest consideration directed to “bringing home to a parent” serious concerns in relation to that parent’s conduct towards the child through the making of orders sought by the other parent where such orders are otherwise not be in the best interests of the child.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode,[30] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of the child must be made jointly, unless the Court provides otherwise.
[30] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (sub-s 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for him (sub-s 61DA(4)).
Each of the parents seeks sole parental responsibility for the child. That is they each seek all the duties, powers, responsibilities and authority which by law parents have in relation to the child. The ICL seeks an order that the father have sole parental responsibility for the child. Each of these proposals are in accordance with the recommendation of the expert that parental responsibility be allocated to the parent with whom the child is to live.
As I have found that the father has engaged in family violence the presumption of equal shared parental responsibility does not apply. As the parents have no capacity for joint decision making and the expert recommends that parental responsibility be held by the parent with whom the child is to live, I am easily satisfied that such an order is in the child’s best interests.
Other Parenting Orders
A determination of the parenting arrangement that is in the child’s best interests is particularly challenging in this complex matter. Ultimately, it is a sad outcome for the child that each of the proposed parenting arrangements involve significant determinants for him and the orders I make will be those that I consider are the least detrimental to him. Having considered all of the foregoing matters in relation to the child’s best interests and the advantages and disadvantages of each proposal, I am satisfied that the parenting arrangement that is proper in these circumstances is as proposed by the mother. I have however made some slight amendments to some of the orders which do not alter what I understand to be the intent of those orders, but consider that the redrafting provides greater clarity. As the child is to spend no time with the father there seems little purpose in restraining his conduct through an injunction so the restraint has been redrafted to apply to the mother only. In my view, there may be real difficulty enforcing an injunction restraining a parent from “doing or saying anything…detrimental to the relationship each party has with the child” as proposed and the restraint has also been redrafted.
There was also uncontradicted evidence that the father requested that the mother give him each of the child’s passports (issued by Australia and the Asian country) when police accompanied the mother to the family home to collect her belongings and police directed the father to do so. As there is no other evidence in relation to the passports I consider it likely that the father has retained the passports in his possession and it is possible that one or more of them are still current. The thrust of the orders proposed by the mother require each party to do all things necessary to enable a passport for the child to issue and that the passport shall be held by the mother. In my view, it is appropriate to make orders for the surrender of any existing current passports to the Court and then for collection by the mother. As obtaining a passport falls within the exercise of sole parental responsibility for the child, I consider it more appropriate and in keeping with the mother’s proposed orders that the mother’s parental responsibility in relation to the passport is clearly delineated. It is also apparent from the mother’s proposed orders that she seeks permission to be able to take the child on a holiday overseas. In my view, in the circumstances of this case where the child’s relationship with the father is effectively coming to an end and the mother is to exercise sole parental responsibility for the child, it is an unnecessary burden on the mother to provide information to the father in relation to travel as proposed in the mother’s draft orders.
I also make an order in relation to these Reasons for judgment to be provided to the counsellor providing counselling services to the child and the mother for reasons which are apparent in this judgment.
For all of the foregoing reasons, I make the orders set out at the forefront of this judgment.
I certify that the preceding five hundred and fifty-three (553) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 2 June 2023
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