Gilchrist and Karim

[2017] FCCA 1757

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILCHRIST & KARIM [2017] FCCA 1757

Catchwords:
FAMILY LAW – Contravention application – mother withheld children – contravention proved.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR GILCHRIST

Respondent: MS KARIM

File Number: ADC 2460 of 2013

Judgment of: Judge Young

Hearing date: 14 July 2017

Date of Last Submission: 14 July 2017

Delivered at: Adelaide

Delivered on: 14 July 2017

REPRESENTATION

Counsel for the Applicant: Ms Smith

Solicitors for the Applicant: Joseph Ramsay Sanders Lawyers

Counsel for the Respondent: Mr Roberts

Solicitors for the Respondent: A K Reeves & Associates

ORDERS

1. That pursuant to section 70NEC of the Family Law Act 1975 the court finds that the mother has contravened order 3(a) of the orders made on 21 April 2016.

2. That the mother undertakes to enter into and be placed on a good behaviour bond without sureties for a period of 12 months to obey any orders made from time to time and to attend upon a family consultant in respect to understanding the importance of obeying court orders.

3. That all other counts are dismissed.

4. That the order 1 of the orders made on 15 May 2017 staying the father’s time with the children V born on (omitted) 2008, W born on (omitted) 2009, X born on (omitted) 2010 and Z born on (omitted) 2013 be revoked and the orders be reinstated in their entirety with the exception of 3(b) and (c).

5. That order 7 of the orders made on 21 April 2016 be varied so the changeovers to occur at the (omitted) Children's Contact Centre with the parties to do all acts and things to re-enrol if necessary at the Centre.

6. That order 11 of the order made on 21 April 2016 be varied to provide for the father to have telephone communication with the children on one occasion between 12.00pm and 1.00pm each Saturday.

7. That the Initiating Application filed by the mother on 26 April 2017 be adjourned to 22 November 2017 at 10.00am for a Rice & Asplund argument.

8. That the parties file and serve any further material in respect to the Rice & Asplund argument no later than 28 days prior to the 22 November 2017.

IT IS NOTED that publication of this judgment under the pseudonym Gilchrist & Karim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2460 of 2013

MR GILCHRIST

Applicant

And

MS KARIM

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read. 

2. This is a contravention application brought by the father of the children in this matter. I have ruled on the various counts and after my rulings there have been two contraventions left standing, so to speak.  One is the contravention of order 3(a) which provides for times on alternate weeks beginning from 4 June. The contravention relied on for that is on 5 November 2017 which after a, perhaps, somewhat legalistic interpretation of 3(a), I ruled was a day that was covered by 3(a), that is, the time on alternate weeks which if followed through would apply on 5 November. 

3. I say “somewhat legalistic” because order 3(b) might be thought to have been intended to take over from 5 November which provided for overnight time on the provision of some information by the father.  He did not do that so I ruled that the reliance on 3(b) was not open.  But reliance on 5 November was open in relying on 3(a).  Again, a somewhat legalist interpretation, but it is one that I was satisfied with as a reasonable interpretation of the order as a whole.

4. The other was the contravention of order 3(e) which provided for the children to spend time with their father on Father’s Day which was 4 September 2016.  The contravention application was somewhat haphazardly drafted and it is really only by accident that there has been any contravention identified. Nevertheless, this is a matter where there have been deliberate noncompliances with the orders made on 21 April. 

5. The mother is frank in her acknowledgment that she deliberately did not comply with the orders.  She said in evidence in her affidavit filed on 9 February that the reasons essentially were (paragraph 17 of her affidavit) that:

   During the month of August 2016 the father would ask me to go and see him to have sex, and when I refused he would get angry at me.  He said to me, “If you don’t love me I will kill my children.  I will die with my children.”

6. She said that that threat was made and she was so afraid for the children that she ceased the father’s time with the children from about then.  It is clear that certainly after that date the children did not spend any time with the father because the mother did not make them available.  She also says in her affidavit of 9 February in paragraph 10  that when the children returned from their one visit with the father under these orders, that her daughter A, who was then about eight years old, told her that Z, who was then two and a half, had been nearly run over by a car.  She said that she was very concerned about that as well.   

7. The mother in evidence was asked to give some more detail about Z being nearly run over.  Her evidence was almost incoherent.  I found her narrative to be confusing, disjointed and unresponsive to many questions.  Asked a very simple question, she would answer in an extremely discursive and often irrelevant way.  I did wonder about her state of mind and indeed her cognitive capacity when I listened to her evidence.  Her evidence was given in a highly emotive and emotional way. 

8. I had the most serious doubts about her credibility based simply on the manner of her giving evidence.  However, it would not be appropriate to make any definite conclusions about her credibility based on the manner in which she gave her evidence alone.

9. However, in relation to the two incidents that I have mentioned, the alleged threat to kill and the episode with Z and the car, she was unable to provide any narrative in a way that I could understand.  Bearing in mind that what had happened, if anything, had been reported to her by an eight year old, I might have expected her to give evidence that she had asked the father what had happened and then to give a reasonably detailed description.  That was not forthcoming. 

10. Her responses became immediately emotional.  And as I say, I was unable to discern any particular narrative behind her evidence unfolding in a sequential or orderly way.  It is not apparent to me what happened with Z and the car, if anything.

11. The alleged threats to kill are in a different category.  A threat to kill a person is a criminal offence, of course.  The mother in her affidavit material is again vague about the circumstances in which this threat to kill was made.  She says in paragraph 17 that it happened in a telephone call.  She gives no date but she gives a month August 2016.  She did not recount an entire conversation but just extracts from the conversation in these words:

    If you don’t love me I will kill my children.  I will die with my children.

12. As a drafting exercise it is an example of how not to draft an affidavit with a serious allegation in it.  I have to take into account that there may be deficiencies in the drafting of the affidavit and they may reflect the skill of the drafter rather than necessarily an incomplete or incoherent narrative from the mother herself.  Naturally in a case such as this one seeks for some independent or corroborative material.  I asked the mother to recount to me precisely what her dealings with the police were over this matter. 

13. She did say she reported the matter to police and in her affidavit there is a reference to a police file number that has been given to her, not in her affidavit of 9 February but in her affidavit seeking to vary the current orders.  It is in that affidavit that some further information is given about her dealings with the police – I might say, not the affidavit filed in relation to the contravention proceedings and not the affidavit that was relied on by counsel for the mother at the outset of this contravention application. 

14. In substance she repeated exactly the conversation in the second affidavit that I have already referred to.  She says, referring to the telephone conversation:

    After this I was too scared to let the children go to see the father.  When I realised the father was going to pursue time with the children, I reported it to the police. 

15. She then gives a police report number.  It is curious that it was not reported to the police, she says, until she realised the father was going to pursue time with the children.  I asked her to detail her exchanges with the police and again her evidence was subject to the deficiencies that I have identified in relation to the car accident.  Her narrative was confused and disjointed.  The substance of it appeared to be that she had reported the matter to the (omitted) Police Station.  She says that in August 2016 she spoke to a detective.   

16. She said she went to the police station.  She said she rang again.  She said she made a statement to the police.  She said she does not have a copy of the statement to the police.  She said that there was a break-in in January 2017 when, she says, her car keys were taken from her home.  She apparently made another police report.  The connection of the January 2017 incident with the earlier report to police was not made clear.   

17. In the circumstances, where she was resisting a contravention application and where she has made another application to vary the existing time orders based on the father’s alleged threat to kill I would have thought a starting point for the mother would be to issue a subpoena to the police to produce any records relating to her complaint. 

18. That is, of course, central, because those records would perhaps identify the nature of the initial complaint made by the mother, the terms of her complaint and would be relevant because they could negative any allegation or any submission made, as is made by Ms Smith, in substance, as I understand her submission, that the mother’s story of the father’s threat to kill is invented and indeed is a recent invention.  In those circumstances any evidence of what used to be called recent complaint in criminal matters, any evidence of an early complaint to the police of the threat to kill would be highly relevant.  However, no such material is before me.   

19. There is no explanation as to why there is no such material before me.  I am unable to see what the terms of her complaint were.  I am unable to see when her complaint was made.  I am left with the impression as set out in her affidavit that she did not report the matter to the police until she was aware that the father was going to pursue time with the children. 

20. Attached to the father’s affidavit are reasonably detailed records from the children’s contact centre.  The mother said in oral evidence that the threat to kill was made on 6 August 2017 by the father during a telephone conversation.  She said that he repeated the threat to kill on other occasions, although, again, her narrative was incoherent and disjointed and I found it very difficult to understand.  She referred to threats to kill being made in 2008 but they were never investigated.

21. I asked her about threats to kill made after the consent orders in April 2016.  She appeared to imply that the father repeatedly threatened to kill the children in 2016 but was unable to offer any specifics beyond 6 August 2016.  That is important, in my view, because the children’s contact centre record conversations with the mother on 28 August 2016, 3 September 2016 and 15 October 2016.  On none of those occasions did the mother say to the contact centre that she will not be bringing the children in because the father threatened to kill them.

22. On 28 August her reasons for refusing to bring the children to the contact centre are recorded as follows:

    …at 1.05 pm, Ms Karim called the service and stated that the children did not want to go and they were scared due to Mr Gilchrist verbally abusing Ms Karim.  She stated that Mr Gilchrist was taking drugs and she did not want him around the children.

23. The worker advised her to seek legal advice.  The note goes on:

    …Ms Karim also spoke about her pregnancy and due to her being tired, she was unable to travel anywhere.

24. On 3 September 2016 at 2 pm the mother called the service and stated “she would not be coming as she does not believe the children are safe and she is due to give birth”.  The worker asked if she would be attending tomorrow as it was Fathers’ Day and she stated that she would not.  On 15 October, the father arrived at the contact centre on time.  The mother was called by the contact centre at 12.45 pm and there was no answer. The record says:

    The mother called back at 1.30 pm and asked why the service had called her.  She stated that all visits had been cancelled and the worker stated that they had had no notification.  Ms Karim talked about recently giving birth and waiting for legal aid.  She said she did not want the service to call any more.

25. On none of those occasions did the mother mention the threat to kill, particularly in the conversation on 28 August 2016.  She gave various other reasons: the father verbally abusing her, the father taking drugs, her pregnancy and due to being tired.  I find it implausible that if a threat to kill the children had been made on 6 August that that would not be mentioned by the mother when she gave a detailed list of reasons why she would not be bringing the children to the contact centre.  It was said by her counsel that the entry of 30 September where she says she does not believe the children are safe should be read as encompassing a threat to kill.  I do not accept that submission.

26. It appears to me that if a threat to kill was made then something quite specific about that would be said.  I asked the mother whether she had told the children’s contact centre of the father’s threat to kill.  Initially, she said she did tell the contact centre that the father had threatened to kill the children.  After an objection by her counsel which, as far as I could see, was an unmeritorious objection – it certainly was not upheld – where he referred to the phrase that I have mentioned from 3 September, the children not being “safe” – the mother, who was in the witness box at the time, immediately adopted that formulation and resiled from her earlier evidence that she had told the contact centre of the father’s threat to kill. She then said she simply told them the children were not safe.

27. I am satisfied that her change of evidence was a recognition of the inconsistency of the contact centre notes with her earlier evidence and that she was not able to maintain her earlier evidence.  I am satisfied that her earlier evidence was untrue.  I am satisfied that the mother’s evidence generally about the threat to kill is not true.  I find that the mother is motivated by an intense resentment against the father and is willing to say whatever she thinks is necessary.  Accordingly, I find, on the balance of probabilities, that her evidence of the father’s threat to kill, which was denied by the father, is untrue. 

28. It follows that I find that she does not have a reasonable excuse for withholding the children and cancelling the children’s time with the father.  I find each of the remaining contraventions proved.

29. Ms Smith, I am going to reinstate order (3)(a). For 3(b) as it is going to come back to court, in any event, I think I will leave consideration of that and 3(c). I am going to reinstate the orders with the exception of (3)(b) and (3)(c).

30. I will vary Order 11 to provide that the father is to telephone the children on one occasion per week on Saturday between the hours of 1 pm and 5 pm. Was that it Mr Roberts?

31. Sorry, between 12 noon and 1 pm each Saturday.  There will be an order that the parties are to take steps to re-enrol for changeover.  So Order 7 will have added to it the words:

    …and the parties are to re-enrol if necessary for changeover at the (omitted) Children's Contact Centre immediately.

32. I will adjourn the mother’s application to discharge the orders of 21 April 2016 for a Rice & Asplund hearing to 22 November 2017 at 10am.

33. The parties are to file and serve any further affidavit material no later than 28 days before the hearing. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  27 July 2017