EL KAZEMDE & HANIF

[2013] FamCA 197

FAMILY COURT OF AUSTRALIA

EL KAZEMDE & HANIF [2013] FamCA 197

FAMILY LAW – CHILDREN – Child Abuse – Finding on the balance of probabilities that the father had sexually abused his daughter – where all three children of the relationship were at unacceptable risk of harm through their subjection and exposure to child abuse and family violence

FAMILY LAW – CHILDREN – Family Violence – Finding on the balance of probabilities that the father had perpetrated family violence on the mother throughout their relationship – where the mother was at unacceptable risk of harm from subjection to family violence

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing on discrete issue – separate trial to determine issues of family violence and child sexual abuse – where a further trial, if necessary, will determine final parenting orders

FAMILY LAW – EVIDENCE – Issue Estoppel – where a foreign court had acquitted the father of charges of child abuse – where the judgment of the foreign court was admissible in evidence pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) – where the Court was not bound by the findings of the foreign court – Reid & Lynch (2011) 44 Fam LR 141 and Schorel & Schorel (1990) FLC 92-144 considered

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 60CG, 69ZR and 69ZX
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth)
Family Law Rules 2004 (Cth) r 10.14

Briginshaw v Briginshaw (1938) 60 CLR 336
Burke v LFOT Pty Ltd (2002) 209 CLR 282
IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Reid v Lynch (2011) 44 Fam LR 141
Schorel & Schorel (1990) FLC 92-144
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPLICANT: Mr El Kazemde

RESPONDENT: Ms Hanif

INDEPENDENT CHILDREN’S LAWYER: KDB Holmes Solicitors

FILE NUMBER: SYC 8453 of 2007

DATE DELIVERED: 27 May 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 6, 7 & 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Ladopolous

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Ms A. Petrie

SOLICITOR FOR THE RESPONDENT: Taylor & Scott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KDB Holmes Solicitors

Orders

1. The proceedings are listed before the Court in its Newcastle registry at 10:00 am on Friday 7 June 2013 for consideration of further procedural orders.

2. Leave is granted to the parties and the Independent Children’s Lawyer to appear at the next Court event by telephone.

3. The parties are excused from personal attendance at the next Court event provided they are legally represented.

4. Leave is granted to the Independent Children’s Lawyer to furnish to the Legal Aid Commission of NSW a copy of the reasons delivered by the Court in relation to the hearing conducted in these proceedings from Monday 6 May until Wednesday 8 May 2013.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8453 of 2007

Mr El Kazemde

Applicant

And

Ms Hanif

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother separated in April 2009. They are citizens of Country S, North Africa, but hold dual citizenship and reside permanently in Australia.

2. They have three children, the eldest two of whom are twins aged nine years and the youngest of whom is aged eight years. One of the twins is female and the other two children are male. The three children were born in Australia.

3. The mother now lives secretly with the children at an undisclosed location within Australia. She refuses to disclose their whereabouts to the father, whom she alleged was grossly violent to her and sexually abusive to the children. The children have not seen the father since May 2010 and have not spoken to him by telephone since April 2011.

4. The father commenced these proceedings in October 2011 seeking orders that he and the mother have equal shared parental responsibility for the children and the children spend substantial and significant time with him. The mother opposed the re-introduction of the father into the children’s lives in any way.

5. The proceedings were commenced before 7 June 2012, meaning the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply (see Schedule 1, items 44 and 45), but the evidence of violence and abuse is still a primary consideration in the determination of orders which reflect the children’s best interests.

6. Because the evidence of the father’s alleged family violence and sexual abuse of the children was of such pre-eminent importance in the context of these proceedings, with the consent of the parties and Independent Children’s Lawyer, procedural orders were made to separately hear and determine the extensive allegations of violence and abuse. Such a course was expressly enabled by the provisions of both the Family Law Act (s 69ZR(1)) and the Family Law Rules (rule 10.14).

7. The findings arising from the hearing will influence the Court’s determination of proper parenting orders in any subsequent final hearing that may become necessary because of the parties’ inability to compromise the dispute.

The evidence

1. The mother relied upon the following evidence:

   a)Her Notice of Child Abuse filed on 28 May 2012;

   b)Her affidavit filed on 26 March 2013;

   c)The affidavit of Ms B filed on 22 March 2013; and

   d)The affidavit of Dr D filed on 22 March 2013.

2. The father relied upon his affidavit filed on 22 March 2013.

3. All of the witnesses were cross-examined.

4. The parties and the Independent Children’s Lawyer also invited the Court to take into account the contents of the Magellan Report dated 29 November 2012 furnished by the NSW Department of Family and Community Services (“the Department”).

Allegations of family violence

1. According to the mother’s evidence, the family violence perpetrated by the father was acute and persisted throughout their relationship.

2. The parties arrived in Australia together and began their cohabitation here in January 2003.[1] The mother was already, or soon became, pregnant with the twins who were born in September 2003.

   [1] Father’s affidavit, para 20; Mother’s affidavit, para 5

3. The mother alleged the father was first violent to her in the very early stages of that pregnancy. He hit her on the back with a belt and pushed her into a refrigerator.[2]

   [2] Mother’s affidavit, para 21

4. Thereafter he punched, slapped and pushed her on many different occasions.[3] He also spat in her face, bit her and dragged her by the hair.[4] The father also threatened to kill her, drove the family car erratically, and incited the children to humiliate her.[5]

   [3] Mother’s affidavit, paras 22-23

   [4] Mother’s affidavit, para 27

   [5] Mother’s affidavit, paras 28-29

5. The generality of the mother’s evidence was punctuated with specific incidents she could recall.

6. On one occasion the father slapped the mother across the face with such force it perforated her ear drum and caused her ear to bleed.[6] That incident occurred in January 2004 and her injuries and complaint of the assault were corroborated by her general practitioner.[7]

   [6] Mother’s affidavit, para 24

   [7] Affidavit of Dr D, para 6

7. In late November or early December 2005 the father pushed the mother to the ground and repeatedly kicked her, causing the fracture of her rib. The mother mistakenly said that incident occurred in February 2006,[8] presumably because that is when she was x-rayed on referral by her general practitioner.[9]

   [8] Mother’s affidavit, para 26

   [9] Mother’s affidavit, Annexure F; Affidavit of Dr D, paras 9, 12

8. In February 2006 the mother was knocked unconscious by the father. The police were called to the parties’ home but the mother lied about her injury, attributing it to a fall, because of her fear of the father.[10] However, the mother made a contemporaneous complaint to her general practitioner attributing her injury to assault by the father.[11]

   [10] Mother’s affidavit, para 26

   [11] Affidavit of Dr D, para 11

9. In December 2006 at a local shopping mall the father’s public humiliation of the mother was so pronounced an unknown member of the public approached and offered her help. The father dragged the mother from the shop and upon their arrival home assaulted her by throwing her against the wall and repeatedly punching her.[12]

   [12] Mother’s affidavit, para 31

10. The mother was a regular patient of Dr D from the time of her arrival in Australia in January 2003 until February 2008.[13] She confirmed the mother consulted her on no less than 16 separate occasions over that five year period and complained of physical assaults, threats and intimidation by the father. The mother’s demeanour in the presence of the doctor was generally consistent with those reports. She was anxious, depressed and sometimes crying. The doctor perceived the mother’s fear of the father to be genuine. She said she did not believe the mother was fabricating or exaggerating her reports of family violence and she was concerned for the mother at the time. Understandably, there was no challenge to the veracity of the doctor’s evidence.

    [13] Affidavit of Dr D, para 3

11. The mother’s demeanour during the hearing was consistent with her earlier presentation to the doctor. She credibly vacillated between outright distress and defiant rebuttal of any suggestion her evidence was fabricated or exaggerated.

12. The father often, perhaps always, conveyed the mother to and from her consultations with Dr D. It was submitted that such evidence tended to corroborate the father and impugn the mother, since it was unlikely the father would take the mother to an appointment at which she would seek treatment for an injury or condition she would attribute to his violence and intimidation. I reject that submission. The father said, and the doctor confirmed, he never attended the consultations between the mother and the doctor, which the mother and father would both have realised were confidential. The father would likely have been unconcerned by any confidential disclosure made by the mother to her general practitioner, particularly given his willingness to assault and berate her in public.

13. Evidence of such public disturbances was given by the parties’ former neighbour, Ms B. On numerous occasions she heard commotion from within the parties’ nearby home and contemporaneous complaints were made to her by the mother of being assaulted by the father. She heard both parties yelling at one another. On at least one occasion when the parties were outside their home she observed the father rip off the mother’s veil, hit her and drag her by the hair. Ms B sought to intervene in that incident but the father told her “get lost before I belt you”. Ms B felt compelled to call the police to the disturbances at the parties’ home on two occasions and she saw an ambulance attend their home on other occasions.[14] The father admitted in cross-examination the police did attend the family home and they were not summoned by him. Obviously, Ms B or someone like her was sufficiently concerned by events at the parties’ home to consider police intervention was warranted.

    [14] Affidavit of Ms B, paras 7-13

14. When Ms B was challenged about the truth and accuracy of her evidence she was credibly able to volunteer extra detail about her observations, including that one of the memorable incidents occurred at about 12.30 on a Saturday. I accept the veracity of Ms B’s evidence. She made a contemporaneous statutory declaration about such incidents in March 2008,[15] which evidence she endorsed in both her affidavit sworn in March 2013 and during her cross-examination. Her apparent impartiality was demonstrated by both the absence of her contact with either party since about June 2008[16] and the convincing manner in which she gave her oral evidence. I reject the father’s submission that Ms B was a witness who lacked credibility.

    [15] Affidavit of Ms B, para 17, Annexure A

    [16] Affidavit of Ms B, para 5

15. The mother’s corroboration by the evidence of Dr D and Ms B is particularly influential. In all likelihood, there was no logical reason why the mother would make repeated reports of domestic violence to Dr D over a period of more than four years unless the reports were efficacious. She had nothing to gain by spuriously making such reports confidentially to her own treating general practitioner. I reject the father’s speculative theory that the mother slowly, carefully and methodically constructed an elaborate hoax in order to avoid any stigma that may attend her separation from the father without the justification of gross behaviour by the father. Dr D was undoubtedly reliant upon the history provided by the mother, but the mother’s injuries were consistent with the history reported by her and the doctor found the mother’s presentation consistent with the history. The impartial evidence of Ms B cumulatively adds considerable weight to the mother’s evidence.

16. I repose no tangible weight in other evidence, said to be corroborative of the mother, which was sourced to witnesses who did not give sworn evidence because it was impossible for the father to test that evidence and the impartiality of those witnesses was unknown.[17]

    [17] Mother’s affidavit, Annexures B, H, I; Exhibit ICL2; Exhibit F6

17. The parties separated on 27 November 2007 following an incident between the father and the female twin, which was witnessed by the mother. The mother and children initially stayed in a women’s refuge but were later accommodated in emergency housing by the NSW Department of Housing.[18]

    [18] Mother’s affidavit, paras 11, 36

18. In December 2007 a provisional apprehended domestic violence order was taken out by police against the father for the protection of the mother and the children.[19] The mother made a comprehensive statement to police on 2 January 2008 concerning the father’s conduct,[20] the truth of the contents of which she adopted in these proceedings.

    [19] Mother’s affidavit, para 33; Notice of Child Abuse 28/5/12, Annexure J;

    [20] Mother’s affidavit, Annexure A

19. The apprehended violence order was made final by the Local Court of NSW at E Town on 30 May 2008 for a period of two years, at which time the father was present in Court.[21] Relevantly, the terms of the order only restrained the father from assaulting, molesting, harassing, threatening, intimidating or stalking the mother and children.

    [21] Mother’s affidavit, para 34, Annexure K; Father’s affidavit, para 45

20. Less than a month later, in June 2008, the police sought a variation of the apprehended domestic violence order on behalf of the mother so as to preclude the father’s contact with her or the children at all. The motivation for the application was family members and members of the local community applying pressure upon the mother to reconcile her relationship with the father, allegedly because he had repented and made a vow to her about his reformation.[22]

    [22] Mother’s affidavit, para 35, Annexure L

21. The father admitted in cross-examination he sent “lots of text messages to the mother”, which commenced from the time of separation in November 2007 and continued until the police made the application to vary the apprehended violence order in June 2008. For example:

    a)On 13 December 2007 the father said to the mother by text message “…I wronged you and the children and my god. I repent to Allah. Forgive me”.[23]

    b)Seemingly at some time proximate to the application in June 2008 to vary the apprehended violence order, the father said to the mother by text message “Sorry I’ll not do this again, I’ve changed I’m not violent now”.[24]

    [23] Exhibit M1

    [24] Mother’s affidavit, para 35, Annexure L

22. The father would not have sent such text messages to the mother unless he wanted her to believe he was contrite for his offensive behaviour. Irrespective of whether he actually was contrite, the messages were unequivocal admissions of former misconduct. Even if the father was not genuinely remorseful and he deceitfully intended to mislead the mother about his contrition, the text messages were still stark admissions of his appalling conduct. Self-evidently, such contemporaneous and repeated admissions are flatly contradictory to his denial of turpitude during these proceedings.

23. In his affidavit,[25] and also repeatedly throughout his cross-examination, the father denied he had assaulted, threatened, or intimidated the mother in any way. He asserted the entirety of her evidence about his commission of family violence and sexual abuse of the children was a fabrication. Although he admitted they occasionally argued,[26] he denied he ever even shouted at the mother. As would be obvious, such evidence is completely repugnant to the evidence of Ms B.

    [25] Father’s affidavit, paras 24, 37

    [26] Father’s affidavit, paras 24-25, 33

24. Other than blanket denials, the father gave direct and specific evidence in relation to the mother’s rib injury in late 2005. He alleged the mother fell over and sustained that injury accidentally whilst the parties were in Country S to attend the wedding of the mother’s brother.[27] However, the father’s exculpatory explanation is difficult to accept as correct. The mother may have fallen while they were in Country S, but the father’s evidence did not necessarily prove any causal link between the fall and her injury.

    [27] Father’s affidavit, paras 28-29

25. The father had plenty of time to procure documentary evidence to corroborate his version of that event and the resultant injury, but no such evidence was adduced and no explanation given for why. No evidence was called from family members who could allegedly verify the incident and no translated medical notes from the Country S doctors who allegedly treated her were tendered. It is understandable why the father may not have chosen to call witnesses from Country S to give evidence, despite the prospect of them giving evidence by telephone with the aid of an interpreter, but his failure to produce even the medical notes which he would be expected to produce in his own interest warrants a conclusion that, if given, the evidence would not have supported his case (see Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197; IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163 at [28]-[29]). All evidence must be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330).

26. The father alleged the mother was prone to physically injure herself at times of emotional stress,[28] which the mother vigorously denied. If the father intended the Court to thereby infer the injuries observed on the mother from time to time by Dr D were self-inflicted, the evidence falls well short of permitting such an inference.

    [28] Father’s affidavit, paras 30-31

27. I reject the father’s evidence, which was both incompatible with his indisputable admissions to the mother and contradicted by the consistent evidence given by the mother, Dr D and Ms B.

Allegations of child sexual abuse

1. The mother deposed that she began to notice “inappropriate behaviour” by the father towards the children in the months preceding their separation in November 2007.[29] However, in isolation, that statement is liable to mislead. The more detailed evidence adduced by the mother indicated that, initially, her belief that the father was sexually abusing the children was entirely reliant upon statements made to her by the children, but she later witnessed such events for herself. In fact, her observation of the father in a sexually suggestive position with the daughter was the catalyst for the parties’ separation on 27 November 2007.

   [29] Mother’s affidavit, para 8

1. The sexualised complaints by the children to the mother about the father began some months prior to November 2007. The children’s complaints to the mother implied the father had performed cunnilingus upon the daughter,[30] procured the eldest son to suck his penis,[31] procured the youngest son to suck his penis,[32] rubbed his penis on the daughter’s vulva and procured her to suck his penis,[33] inserted his fingers into the anus of the eldest son,[34] and squeezed the eldest son’s penis.[35] Such revelations made the mother wary of the father and vigilant for the children. She took steps to avoid allowing the father opportunities to sleep with the children, as she alleged he had previously done.[36]

   [30] Mother’s affidavit, Annexure A (paras 5-7)

   [31] Mother’s affidavit, Annexure A (para 12)

   [32] Mother’s affidavit, Annexure A (para 14)

   [33] Mother’s affidavit, Annexure A (paras 15, 18)

   [34] Mother’s affidavit, Annexure A (para 20)

   [35] Mother’s affidavit, Annexure A (para 21)

   [36] Mother’s affidavit, Annexure A (paras 8-11, 13, 19)

2. At times more proximate to separation in November 2007 the mother witnessed events which galvanised her fears the father was sexually abusing the children.

3. On one occasion the mother saw the father pinch the daughter on the vulva over the surface of her clothing, which caused the child discomfort. The mother challenged the father and he simply denied any impropriety.[37] On another occasion, although the mother did not witness it, she was close at hand and heard the daughter scream. The daughter immediately came to her and complained the father had pinched her on her vulva, which the father denied.[38]

   [37] Mother’s affidavit, Annexure A (para 16)

   [38] Mother’s affidavit, Annexure A (para 17)

4. About two weeks before separation the mother walked into the lounge room and saw the father and the daughter sitting together. The father was wearing boxer shorts and was seated on the couch. The child was sitting on his right leg and leaning on his shoulder. The child was using her left hand to stroke the father’s erect penis over the surface of his boxer shorts. When the mother reacted with fury the child slipped away. The father did not deny the child had been fondling his erect penis. He simply said to the mother when challenged “Oh. I didn’t notice. I’m watching TV”, which the mother would have correctly considered facile and unconvincing.[39]

   [39] Mother’s affidavit, Annexure A (para 22)

5. On the morning of Monday 26 November 2007 the mother left the kitchen to check on the daughter. She went to the child’s bedroom and found her lying on her back on the floor behind the bed with the father on all fours over the top of her. The father explained to the mother they were “playing hide and seek and hiding from the boys”, but she perceived that excuse to be plainly false because the boys were watching television in the lounge room and once she squarely accused him of sexual abuse the father stood and thereby exposed his partially erect penis through the open zipper on his trousers. The mother alleged the father’s consciousness of guilt was manifest from his threat to kill her if she made good on her promise to report his behaviour to the authorities.[40]

   [40] Mother’s affidavit, Annexure A (para 27)

6. The next day the mother hastily vacated the former matrimonial home with the children whilst the father was at work and sought accommodation for them in a women’s refuge. It is uncontroversial the parties’ separation occurred on 27 November 2007.[41]

   [41] Father’s affidavit, para 35

7. Some criticism was levelled at the mother for not taking remedial action sooner, but her explanation was convincing. At first, she was uncertain about whether to accept the children’s reports of sexual impropriety as truthful. She confided in a female friend who counselled her about the seriousness of the matter and to be absolutely sure of its occurrence before she made any allegations against the father. Although she did not divulge her suspicions about the father to Dr D until much later in February 2008, she did surreptitiously collect the children’s vomit at some point in late 2007 and ask Dr D for it to be analysed, because she feared the father’s semen would be found within it. Once the mother was convinced by her own observations that the father was sexually abusing the children she initially held back making allegations because she was scared of the father and tried to keep the children with her at all times. She said “I didn’t have the courage at that stage”. Obviously, she summoned the courage to flee with the children almost immediately following her observation of the sexual tryst between the father and the daughter on 26 November 2007, at which time she directly confronted him for the first time with the allegation he was sexually abusing the children.

8. The mother reported her allegations against the father of sexual impropriety with the children to the Department hotline on 27 November 2007.[42] The allegations were then referred by the Department to the Joint Investigation Response Team (“JIRT”).[43]

   [42] Exhibit F3

   [43] Magellan Report

9. The female twin child was interviewed by JIRT officers on 28 December 2007 and the male twin child was interviewed by JIRT officers on 10 January 2008, but neither child made any disclosure implicating the father and so the allegations were not substantiated.[44] It should be observed the twins were then barely four years of age.

   [44] Exhibits F3, F4, F5; Magellan Report

10. The mother was later convinced to reconcile with the father. It is unnecessary to determine whether she did so of her own volition or because pressure was exerted upon her to do so by the father and various other members of the Country S community. It is also unnecessary to determine whether the reconciliation occurred just before or just after they travelled to Country S. It is uncontroversial that by June 2008 the parties were reconciled and were in Country S with the children.[45]

    [45] Father’s affidavit, paras 47-50; Mother’s affidavit, para 12; Magellan Report

11. The Independent Children’s Lawyer asserted the counselling notes of the mother’s counsellor cast doubt upon the veracity of the mother’s allegations against the father of his sexual assault of the children, because the notes suggested the mother’s allegations were second-hand reports of allegations made to her by a friend.[46] The mother angrily refuted in cross-examination that the allegations originated from her friend. The counsellor met with the mother on 23 June 2008, which session was several days after the father alleged the parties had reconciled[47] and the day before the mother’s departure for Country S.[48] Perhaps the mother minimised the allegations so as not to compromise the marital reconciliation, or perhaps the mother was only referring to the allegations that depended upon the children’s statements rather than her own observations, or perhaps the counsellor misunderstood the mother, because they conversed in a language which was not the mother’s first language. The counsellor was not available as a witness to answer such inquiries. In the circumstances, I reject the notion that those notes materially compromise the mother’s evidence.

    [46] Exhibit ICL1

    [47] Father’s affidavit, para 47

    [48] Mother’s affidavit, para 12

12. It is common ground the parties returned to Australia in August 2008, leaving the children with family in Country S, in order to arrange the discharge of the existing apprehended violence order against the father and to terminate the child welfare proceedings pending before the Children’s Court of NSW that could lead to the children’s placement into foster care. That process entailed the mother informing the police and the Department of the parties’ reconciliation and her abandonment of any fear of the father.[49] The mother said she was complicit in that process only because of the father’s coercion, whereas the father said the mother’s behaviour proved the deceit of her original allegations against him. Clearly, the mother was untruthful either when she made the initial allegations or when she subsequently recanted. Consequently, the uncontested facts are plausibly consistent with both parties’ explanations and so that aspect of the evidence does not advance either case.

    [49] Exhibits F1,F2, F5; Exhibit ICL3; Father’s affidavit, paras 51-55

13. The mother then returned to Country S in early September 2008, but the father remained in Australia and did not join the mother and children in Country S until February 2009. Upon their reunion the mother again formed the view from statements made to her by the twins that the father had again sexually abused them and, upon the father’s return to Australia in early April 2009, reported her concerns to the Country S authorities.[50]

    [50] Mother’s affidavit, paras 13-16

14. When the father returned to Country S in late April 2009 he was arrested and charged in relation to sexual abuse of the children.[51] It remains unclear as to whether the father was charged in relation to only the Country S allegations, because the Country S investigation seems to have canvassed the prior Australian allegations as well. In any event, although initially found guilty of the charges, the father was later acquitted on appeal.[52]

    [51] Father’s affidavit, para 61

    [52] Father’s affidavit, paras 78-80

15. The findings of the Country S courts are admissible in evidence (s 69ZX(3)(b)), but are not binding on this Court (Schorel & Schorel (1990) FLC 92-144 at 78,000-78,005; Reid v Lynch (2011) 44 Fam LR 141 at 181-184).

16. Without attempting to be exhaustive, there are two obvious reasons why little weight should be reposed in the findings of the Country S courts. Firstly, the Country S courts erroneously believed that the child welfare proceedings in Australia, which were dismissed on 21 October 2008,[53] represented an acquittal of the father and a finding of his innocence in relation to criminal charges of child sexual assault.[54] Secondly, the Country S courts appear to have regarded as significant indications of the father’s innocence several features which would not be similarly regarded as influential in Australia: namely, the children’s failure to inculpate the father during the course of their “confrontation” with him, their spontaneous joy at seeing the father after a long absence, and the absence of physiological affect upon the father’s penis.[55]

    [53] Father’s affidavit, Annexure E

    [54] Father’s affidavit, Annexure G (pages 4, 7), Annexure H (page 11)

    [55] Father’s affidavit, Annexure G (pages 7, 9, 10)

17. There is a distinction to be drawn between, on the one hand, the allegations of sexual misconduct which rely only upon the statements of the children, and on the other, the allegations which are supported by the direct evidence of the mother. The latter evidence is much stronger than the former.

18. The children were very young when they made statements about the father between late 2007 and early 2009 that tended to implicate him in sexual misconduct. When the Country S investigation was launched in April 2009 the twins were still only five years of age. Their statements to the mother and the Country S authorities were, at least partially, contradictory and they failed to make any disclosures about the father to JIRT in late 2007 and early 2008 when the opportunity was afforded. Such inconsistency in the children’s reports only really serves to demonstrate the caution that should be exercised when evaluating the weight to be reposed in the literal truth of statements made by such young children. It would be dangerous to repose substantial weight in only those statements they made to the mother which tend to inculpate the father in sexual misconduct and ignore the other evidence which diminishes the veracity of those incriminating statements.

19. The direct observations of the mother constitute much more powerful evidence than the children’s statements. As the Independent Children’s Lawyer correctly submitted, the mother’s observations were striking in their gravity and particularity. Not only did she give clear evidence of what she observed, she deposed to her immediate verbal confrontation of the father about it. If she was intent on fabricating allegations of sexual abuse against the father she need not have complicated the fabrication by unnecessarily incorporating an argument with the father into the story. It would have been much easier for her to falsely allege she observed the sexual misconduct whilst undetected and later just vacated the home with the children to avoid a confrontation with the father.

20. In these proceedings, the father denied all allegations of his sexual molestation of the children, both in Australia and Country S.[56] As would be obvious, often it is impossible for an accused person to do anything other than baldly deny allegations. Presently, the Court is left with conflicting evidence from the mother and the father and corroboration of neither. The reliability of their evidence is therefore vitally important and the veracity of the father was found wanting.

    [56] Father’s affidavit, paras 67-69, 72-73, 77

21. In the Country S proceedings the father denied sending any text message to the mother on 13 December 2007.[57] That denial is presently significant for two reasons. Firstly, it is blatantly contradicted by his admission in these proceedings of sending text messages to the mother on 13 December 2007.[58] Secondly, in one of the text messages sent by the father to the mother on 13 December 2007 he admitted he had “wronged” not just the mother, but also the children. Although such an admission may be susceptible to different interpretations, it is most plausibly an acknowledgement of his mistreatment of the children in some fashion. The dichotomy between the father’s evidence to the Country S courts and his evidence to this Court necessarily disturbs his reliability.

    [57] Father’s affidavit, Annexure F (page 3)

    [58] Exhibit M1

22. In relation to the incidents of sexual impropriety allegedly witnessed by the mother at times proximate to her separation from the father in November 2007 I prefer the evidence of the mother to that of the father.

Conclusions

1. The allegations of family violence and child sexual abuse made by the mother against the father amount to allegations of serious misconduct. In order to be satisfied that such misconduct occurred it must be proven by the evidence to the requisite standard (s 140(2) of the Evidence Act 1995 (Cth); Qantas Airways Ltd v Gama (2008) 247 ALR 273 at 306, 312; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; Briginshaw v Briginshaw (1938) 60 CLR 336).

1. Application of those principles to the evidence leads me to find, on the balance of probabilities:

   a)The father perpetrated family violence by assaulting the mother throughout the marital relationship until November 2007, which violence was severe and frequent; and

   b)The father committed the following acts of sexual impropriety with the female twin child, in or proximate to November 2007, as described by the mother:

   i)Pinching her on the vulva;

   ii)Causing or permitting her to fondle his penis; and

iii)Spread-eagling himself over her with his penis exposed.

1. Of course, when making parenting orders under Part VII of the Family Law Act, the Court is mandated to prospectively consider the need to protect the children from psychological harm caused by their subjection or exposure to abuse and family violence (s 60CC(2)(b)) and to also protect the mother from exposure to an unacceptable risk of family violence (s 60CG(1)(b)).

2. The proven past misconduct of the father is a reasonably reliable factor in the predictive determination of any existent risk of further misconduct.

3. Another salient factor is the father’s denials of any misconduct and the absence of any remorse. One can hardly expect reformation from a person who refuses to admit past misconduct, expresses no contrition for it, and consequently perceives no need to modify his behaviour.

4. Consequently, I find that the children and the mother remain at unacceptable risk of suffering physical or psychological harm by reason of their subjection or exposure by the father to abuse and family violence.

5. Whether the severity of that risk is capable of amelioration is a question which will abide the evidence adduced in any subsequent hearing to determine final parenting orders.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 May 2013.

Associate: 

Date: 27 May 2013

     Father’s affidavit, para 37