Hasila and Fatisi (No 2)

[2019] FamCA 622

FAMILY COURT OF AUSTRALIA

HASILA & FATISI (NO. 2) [2019] FamCA 622

FAMILY LAW – CHILDREN – Allegations of family violence – allegations of children’s exposure to family violence – assertions of trauma – consequences of exposure to Father if the author of trauma – unacceptable risk – factual findings in the context of assessment of unacceptable risk – no unacceptable risk - where the Father has not spent time with the children for three years – poor prospects for reintroduction – lack of evidence as to facilities to assist in reintroduction – reintroduction unlikely to be supported by the Mother – no orders for time

Family Law Act 1975 (Cth) ss 60B, 60CC, 64B, 65DAA and 65DAC

Amador & Amador [2009] 43 FamCAFC 196
Briginshaw v Briginshaw (1938) 60 CLR 336
Duarte & Anor & Morse [2019] FamCAFC 93
Johnson & Page [2007] FamCA 1235
Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69
N & S and the Separate Representative (1996) FLC 92-655
Paul’s Retail Pty Ltd v Sporte Leisure Pty Ltd [2012] FCAFC 51
Sahrawi & Hadrami [2018] FamCAFC 170
Schellenberg v Tunnel Holdings 200 CLR 121
State Rail Authority of New South Wales v Earthline. Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
W v W (Abuse Allegations Unacceptable Risk) (2005) FLC 93-235

APPLICANT: Mr Hasila

RESPONDENT: Ms Fatisi

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd

FILE NUMBER: CAC 1741 of 2018

DATE DELIVERED: 5 September 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 16 - 25 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morrisroe

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Haddock

SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates Family Lawyer

Orders

1. The Mother has sole parental responsibility for X and Y (the children);

2. The children shall live with the Mother;

3. The Mother shall authorise and maintain authorisations at each of the children’s school for the Father to obtain school reports, newsletters and any information regarding the children’s progress at school;

4. The Mother shall advise and keep the Father advised in writing as to the identity of each of the children’s school.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1741 of 2018

Mr Hasila

Applicant

And

Ms Fatisi

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings are the Applicant Father, Mr Hasila, and the Respondent Mother Ms Fatisi.  The parties are originally from Country V.  They were married in Country T in 2005, moved to Australia in July 2016 and separated soon after their arrival.  There are two children of the relationship: X (aged five) and Y (aged nine).  The Father has not seen the children (apart from seeing Y in assessment) since August 2016.

2. The hearing of the matter was conducted through G Language and Z Language interpreters.

3. The hearing of the matter concentrated on incidents said by the Mother to evidence that the Father presents an unacceptable risk of harm to the children.  The Father disputed such incidents and such a conclusion.

4. Put simply, the dispute between the parties as to outcome was as to whether the Father will have any relationship with the children or not.  On the Mother’s case he should not.  On his case there is scope for reintroduction.  The Independent Children’s Lawyer (“the ICL”) was supportive of the Mother’s case.

5. The Mother recited a history of sexual and physical violence, abuse and control.  The controlling behaviour was alleged by her to have encompassed control of her sexually, financially, and in terms of the activities that she undertook and people that she was able to spend time with.  She alleges that this commenced on the parties’ wedding night, which she says occurred when she was twelve, and continued through until after they moved to Australia.  The Mother alleges that the effects of the Father’s conduct upon her were so profound as to cause to her to harm herself.

6. The Father contested this history, denying that he engaged in such violence, abuse or control.  He accepts that on one occasion she engaged in self harm.  He alleges that the Mother smoked opium.

7. If the allegations made by the Mother are generally true, they call into question whether there is benefit to the children of meaningful relationship with the Father and whether he has the capacity to care for the children emotionally.  They also raise strong questions of whether the children are at risk, along with issues of the impact upon the Mother as the undisputed primary carer, of their spending time with the Father.

8. If the allegations made by the Mother are generally untrue, risks posed by the Father dissipate.

9. In any event, given the characteristics of the children and the time since they have been with their Father, questions arise as to whether a reintroduction to their Father is in their best interests.

Procedural History

1. The Father commenced proceedings in the Federal Circuit Court of Australia on 28 August 2018.  By way of Initiating Application, the Father sought parenting orders which included equal shared parental responsibility and for the children to live with the Mother and spend time with the Father. 

2. On 21 March 2019, the matter was transferred to the Family Court of Australia.  On the same day directions were given for the setting down of the matter for trial in July 2019 and the preparation of a Family Report. 

Material Relied On 

1. The Father relied on the following:

   a)Amended Initiating Application, filed 31 May 2019;

   b)Affidavit of Mr Hasila, filed 31 May 2019;

   c)Affidavit of Ms F, filed 31 May 2019;

   d)Affidavit of Mr H, filed 31 May 2019; and

   e)Affidavit of Mr J, filed 5 July 2019.

2. The Mother relied on the following:

   a)Affidavit of Ms Fatisi, filed 08 May 2019;

   b)Affidavit of Ms K, filed 08 May 2019;

   c)Affidavit of Mr L, filed 08 May 2019;

   d)Affidavit of Mr N, filed 14 June 2019; 

   e)Affidavit of Ms Fatisi, filed 14 June 2019;

   f)Affidavit of Mr C, filed 25 June 2019;

   g)Affidavit of Dr D, filed 25 June 2019; and

   h)Affidavit of Dr B, filed 26 June 2019.

The positions of the parties

1. The Mother sought orders for sole parental responsibility, that the children live with her and spend no time with the Father.

2. At the start of the proceedings, the Father sought equal shared parental responsibility for the children.  The Father also sought that the children live with the Mother and spend time with the Father in an increasing manner set out in four phases; moving from limited supervised time each week to unsupervised overnight time for extended periods.

3. On both parties’ cases, the Mother should be the primary carer. 

4. During closing submissions, at the end of the proceedings, the Father amended his orders sought as he no longer sought equal shared parental responsibility for the children.  He sought to be notified in relation to matters involving the children.  He sought an introduction and then progression from supervised to unsupervised time with the children.

5. The Father also sought orders to allow overseas travel, and preventing relocation by either parent outside the Canberra region.

6. The Father said, in his oral evidence, that he wanted the happiness of the children and that he wants to see the children. 

7. The Father says that Y should be able to choose where she lives and be happy with the decision.  He said that Y wishes to spend time with him.  The Father says that he would never force Y to do anything and that he wants her to be happy and free.  The circumstances under which the Father is to see Y do not, he says, matter to him.

8. The Mother’s oral evidence was that she had no problem with the children spending time with the Father subject to a number of provisos, which she asserted could not be met.  The first is that the Mother can be satisfied that the children are safe with the Father.  This included being safe from brainwashing, being spoken to about religion, or having women belittled by the Father.

9. The Mother thought that this precondition could not be met, given that the Father had not complied with the restriction on providing gifts in the assessment process.  She posed the question that if he justified providing gifts on the basis of how he felt about the children, would that also mean that the Father would then stab the children because of how he felt about them?

10. The second precondition identified by the Mother is that contact with the Father should be subject to the wishes of the children.  She asserted that neither she, nor Y wanted Y to spend time with the Father.  The Mother did not think that X wanted to see his Father.  She attributed this in part to X not having seen him for a long time.

11. If the guarantee of safety is not available, the Mother described the effect on herself of the children spending time with the Father as “like every minute I am dying and coming to life thinking of what is happening during that time.”  The Mother said that this was feeling like she was being suffocated with nobody who can help her come out of that situation.

Considerations relevant to determining best interests

1. The paramount consideration in determining what orders should be made about Y and X is the best interests of each of the children. Those best interests are to be determined by a consideration of the primary considerations and additional considerations contained at s 60CC of the Act, seen in the light of the objects and principles set out in s 60B and following the reasoning process set out at s 65DAA.

2. Prior to the trial, the parties identified what they regarded as the central factual issues for determination.  They are as follows:

   a)Family violence – allegations of family violence have been made by both parties.  The Mother says that she was subject to family violence by the Father, and that this was witnessed by the children.  The Mother also says that the Father has assaulted their daughter Y.  The Father denies all allegations of family violence.  The Father says that the Mother was threatening and violent to him and the children.

   b)Drug use – the Father says that the Mother has used drugs during their relationship.

   c)Mental health – the Father says that the Mother has a mental health problem.

   d)Communication – at present, there is no communication between the parties.  There is also an issue of what language the children communicate in.  The Father’s primary language is Z Language, the Mother's D Language.

   e)Capacity for a meaningful relationship between the children and the Father.

3. The particular factual matters emphasised by the parties are strongly directed to the two primary considerations, being the consideration of the benefits of meaningful relationship and the consideration of the need to protect the children from harm occasioned by abuse, neglect or exposure to family violence, along with a consideration of how the parties may or may not be able to cooperate in relation to parenting.

4. Under the Family Law Act 1975 (Cth) (“the Act”), the two primary considerations are given the primary place amongst all of the s 60CC considerations. Of these two primary considerations, the need to protect is assigned greater weight within the considerations than any other.

5. The nature of these primary considerations is such as to necessarily involve a consideration of a number of the additional considerations.  In considering the benefits of meaningful relationship it is also necessary to consider the characteristics of each child, the nature of the children’s relationships with each of the parents, any views expressed and the parental capacity of each of the parents.  It will also be necessary to consider the effect of changes in circumstances, such as the introduction of the Father to the children, along with the practical difficulties that arise with such an introduction.  The effects of exposure to family violence or abuse will also be necessary considerations in determining the benefits of meaningful relationship.

6. Similarly the above matters will also form part of the consideration of the harm that may be occasioned by exposure to family violence or abuse, and the requirements to protect from such harm.

7. It is the interplay between these considerations that goes to the resolution of the question of what is in the children’s best interests.

Approach to fact finding and unacceptable risk

1. Before dealing with the contentious and serious allegations of sexual abuse, physical abuse, coercion and control made in this case, it is necessary to identify the correct approach for dealing with fact finding, and how the fact finding connects with the issues of unacceptable risk raised in the case.

2. In determining the facts of a case Ryan and Aldridge JJ, in Sahrawi & Hadrami,[1]  emphasised that:

   It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard.  It is apparent that the mother failed to do so to the satisfaction of the primary judge.  As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.

   [1]Sahrawi & Hadrami [2018] FamCAFC 170

3. This reflects the general approach in litigation that the one who asserts a fact must prove that fact. 

4. On the issue of making findings as to the underlying facts in such cases, the Full Court in W v W (Abuse Allegations Unacceptable Risk)[2] said:

   In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [2]W v W (Abuse Allegations Unacceptable Risk) (2005) FLC 93-235

5. In Amador[3] the Full Court emphasised the requirement to make factual findings where that can be done:

   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 or 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.

   [3]Amador & Amador [2009] 43 FamCAFC 196

6. That is, where a finding is available in such a case it is to be made, although it is only to be made where it is established on the balance of probabilities consistently with the approach taken in Briginshaw.[4]

   [4]Briginshaw v Briginshaw (1938) 60 CLR 336

7. There are exceptions to the general approach that the one who asserts the fact must prove the fact.  In criminal law, in general, the onus upon a defendant in relation to a defence, or in relation to an alternative explanation, is evidential only and does not require the defendant who alleges such a fact to prove it.  In Sahrawi the Full Court recognised that there is also a departure from this general principle in family law, where the subject being dealt with is one of unacceptable risk.

8. Where what is being dealt with is unacceptable risk, the High Court in M & M[5] has stated:

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying the party for a criminal offence.  Proceedings for custody are not disputes inter partes in the ordinary sense of that expression…the court is not enforcing a parental right of custody or right to access.  The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.

   [5]M & M (1988) 166 CLR 69

9. In M & M the underlying allegation was one of sexual violence upon a child.  The High Court summarised the findings of Gun J at first instance as follows:

   Central to the case are the wife’s allegations that the father has sexually abused the child and that the child's welfare will be put at further risk. At first instance Gun J was not satisfied that the father had so abused the child. On the other hand, he was not satisfied  that  the father had  not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse  by denying access to the husband.

10. In that context, the High Court dealt with and, at least in respect of unacceptable risk, dismissed the idea that failure to prove an allegation on the balance of probabilities renders the underlying fact that is the subject of the allegation of no significance.  The High Court said:

    [19] The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court.  In proceedings under Part VII…the court is enjoined to “regard the welfare of the child as the paramount consideration”…The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”

11. Further the High Court said:

    [20] Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

12. The High Court considered the circumstance where a court might not be able to make positive findings one way or another whether the alleged abuse did or did not occur:

    23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place…

    24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access…

    25. …To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

    26. In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.

1. That is, the High Court acknowledged the situation where a finding was unable to be made either that abuse had, or had not previously occurred, leaving the matter in a state of uncertainty.  That state of uncertainty required assessment as to whether, under that circumstance, there could be said to be an unacceptable risk of harm.  Such an understanding of M v M was recently supported by the Full Court in Duarte & Anor & Morse:[6]

   139. The allegations made against Mr M were that he had committed serious sexual criminal offences. The father thus bore the burden of establishing those facts to the reasonable satisfaction of the trial judge, on the civil standard of proof, taking into account the provisions of s 140(2) of the Evidence Act (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362 (“Briginshaw”); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449–450). The requisite satisfaction cannot be produced by “inexact proofs, indefinite testimony, or indirect inferences” (Briginshaw at 362 per Dixon J).

   140. However, as M v M points out at 77, a finding of unacceptable risk can be made where the evidence falls short of persuading the court that the alleged acts occurred. Such a finding too must be made on evidence that is properly before the Court (Sahrawi & Hadrami (2018) FLC 93-857 at [50]).

   [6]Duarte And Anor & Morse [2019] Fam CAFC 93

2. The approach that is applicable in this case is firstly to determine whether the serious assertions of fact made by each of the parties are established on the balance of probabilities.  If not, then taking into account Sahrawi and M v M, those facts alleged, but not established, will play no further role unless, despite not being established they, either alone or in combination with other matters, point to a conclusion that there is an unacceptable risk of harm to a child.  Such an approach is supported by Johnson & Page[7] where the Full Court, adopting extra curial writing by the Honourable John Fogarty approved the following approach to facts in establishing unacceptable risk:

   [68] …

   7         But the components which go to make up that conclusion (of unacceptable risk) need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

   [7]Johnson & Page [2007] FamCA 1235

3. Focussing on this point, the Full Court specifically stated:

   [71] We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68).  We assume point seven of that summary is directed to the requisite standard of proof.  We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).

4. That is, even in the absence of establishing the underlying facts on the balance of probabilities, such factual matters may be used in answering the question of whether there is an unacceptable risk of harm to a child.  In doing so it is necessary to do as was indicated by the Full Court in Johnson & Page in approving conclusions reached by Fogarty J in N & S and the Separate Representative:[8]

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

   [8]N & S and the Separate Representative (1996) FLC 92-655

5. This necessarily requires a consideration of both the evidence that goes to the disputed underlying fact, and a consideration of the manner in which that disputed fact might, alone or in combination, point to risk.

6. Such an exercise is directed to determining whether a child is at unacceptable risk, a conclusion that involves both the assessment of the level of risk and whether, within the discretionary context of a determination of best interests, that risk means that a child should spend time with a parent, should only spend carefully conditioned time with a parent, or spend no time at all with a parent.  That this is the approach to unacceptable risk was confirmed by the High Court in M v M where it said, in relation to the different formulations used by courts in relation to the question of risk, that:

   [25] This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

7. The end point is that it is necessary to carefully identify the use to which particular facts are to be put and, in particular, whether they are said to contribute to a finding of unacceptable risk.  If so, consideration must be given to whether such factual matters, even if not established on the balance of probabilities, establish such a risk.  If they do not contribute to the assessment of unacceptable risk, then the failure to establish the fact means that the particular “fact” plays no further role in the proceedings.

What are the potential risks?

1. The potential risks are to be identified in the light of the allegations within the case.

2. The Mother makes both general and specific allegations against the Father.  It is these that form the basis for her case that the Father presents an unacceptable risk to the children.

3. The Mother says that she was subjected to physical, sexual, verbal and emotional abuse from the Father and his family while the parties were living in Country T.[9]

   [9] Affidavit of Ms Fatisi, filed 08 May 2019, [27].

4. The Mother says that the Father demanded sex of her, or forced sex upon her nearly every night.[10]  The Mother says that she was scared and afraid of what the Father might do if she did not have sex with him.[11]

   [10] Affidavit of Ms Fatisi, filed 08 May 2019, [72].

   [11] Affidavit of Ms Fatisi, filed 08 May 2019, [71].

5. The Mother also says that the Father would beat her on a daily basis while the parties were living in Country T.[12]

   [12] Affidavit of Ms Fatisi, filed 08 May 2019, [29].

6. The Mother says that the Father was verbally abusive toward her throughout their relationship.  The Mother says that the Father would often say “I should kill you!”[13]

   [13] Affidavit of Ms Fatisi, filed 08 May 2019, [80].

7. The Mother says that throughout their relationship the Father would emotionally abuse her about having children,[14] including putting pressure on her to have children and blaming her for the stillbirth of their first child.  For example, the Mother says that the Father said to her “If you deserved to be a mother, you would be and you would not have killed the child.  You are not worthy and you must better yourself so you can have my children.”[15]

   [14] Affidavit of Ms Fatisi, filed 08 May 2019, [85]-[91].

   [15] Affidavit of Ms Fatisi, filed 08 May 2019, [86].

8. The Mother says that the Father was financially controlling.

9. The Mother says that the children were exposed to, and on several occasions subject to, family violence perpetrated by the Father.[16]  The Mother says that the presence of the children did not deter the Father from being abusive toward her.

   [16] Affidavit of Ms Fatisi, filed 08 May 2019, [95]-[108].

10. The Father denies that he has been violent to the Mother or to the children.  He says that the Mother’s allegations are all lies. 

11. In determining, then, the approach to be taken to fact finding in relation to the allegations made by the Mother against the Father it is necessary to identify the particular unacceptable risks that the facts are said to indicate.  This is a necessary step in order to identify whether uncertainty about the underlying facts could still give rise to conclusions being drawn as to unacceptable risk.

12. Two possible sources of risk have been identified.  The first is as to whether violence alleged to have occurred in the presence of or upon the children speaks to an unacceptable risk of exposure to harm, either because there is a risk of further violence to the children, or because exposure to the person who previously perpetrated the abuse poses a risk of harm.  Secondly, whether bringing the children into contact with the Father, if he has perpetrated violence upon the Mother as alleged, carries such a risk of destabilisation of the Mother, as the undisputed primary carer, as to constitute an unacceptable risk of harm to the children who she provides that care for.

13. In order to establish those risks the Mother, as already noted, relied upon a history of abuse, control and violence.  The description brought to the Court was both as to these occurring generally, and also as to particular instances.

14. The particular incidents are key facts to the determination the parties’ cases.  These particular incidents, which in large part rely upon conflicting testimony, require close consideration.  That close consideration encompasses issues of each of the parties’ credibility or reliability, along with consideration of where the parties have, or have not drawn support for their allegations.

Credibility and reliability

1. Issues relating to the credibility and reliability of each of the parties permeated the hearing, in the context that large parts of each of the parties’ cases were heavily reliant on their own testimony.  Aspects of the evidence of each of the parties gave rise to significant concerns regarding their credibility and reliability, and call for caution regarding their testimony, particularly where their testimony is unsupported by other evidence.

2. Before assessing the evidence given by each in relation to the specific incidents (which also has implications for the assessment of credibility and reliability) it is appropriate to make some more general observations.

3. In State Rail Authority v Earthline Constructions[17] Kirby J commented that:

   There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom.

   [17]State Rail Authority of New South Wales v Earthline. Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

4. Added to the general caution expressed by Kirby J, additionally in this case, caution should be exercised in drawing conclusions about credibility based on the manner (as well as appearance) of each of the parties giving evidence, recognising that their evidence came through interpreters, and that they come from a very different cultural background.

5. Despite this caution, one aspect of the manner of giving evidence should still attract consideration.  Despite directions to answer the questions that they were asked, the parties frequently did not do so, either failing to answer the question at all, or answering beyond the scope of the question.  In terms of general impression derived from an observation of the whole of each parties’ evidence, the Father’s evidence featured more prominent instances of failure to answer the question.

6. This raised the question of whether each (and more so the Father) was being evasive in his or her answers.  At the very least, neither exhibited forthrightness or candour.  Even given the caution indicated above, the lack of forthrightness or candour exhibited by each means that I should be generally cautious in relation their evidence.

7. Against this background, stronger conclusions about credibility and reliability are more safely drawn from more objective features of their evidence such as inconsistencies within the evidence.  As quoted by Kirby J in Earthline Constructions:

   Atkin LJ remarked that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

8. One of the difficulties that arises in cases involving allegations of violence within the family is that frequently there is an absence of such “known facts” against which other evidence may be measured.  Frequently the conduct is alleged to have occurred behind closed doors, outside of the scrutiny of others, in circumstances that deprive the Court of reference to such “known facts.”

9. In the understanding of those circumstances, careful regard must be had to inconsistencies within the evidence (including the reasons for inconsistencies), to potential corroboration or the lack thereof (including the reasons why there may be no corroboration), and to the examination of evidence put forward as supporting “known facts.”

Changes, inconsistencies and late reports

1. Inconsistencies in the evidence of each of the parties were identified.  It is not necessary to deal with every inconsistency.  It is convenient to identify the key inconsistencies in the context of the incidents or allegations to which they relate before forming conclusions as to what they mean in respect of the reliability of the evidence given by each of the parties.

2. However, there were some of a more general nature pursued.  Those that were clearest are set out below.

3. The Mother was challenged in relation to not having reported that the Father was violent to either W Organisation or to O Services prior to her first interaction raising family violence with the police in Australia in August 2016.  The Mother explained that when they first moved to Australia she was occupied with dealing with what had to be dealt with from that move.  It is unsurprising that the Mother, in a strange country with strange systems (to her) might be occupied with the fact of her move rather than with reporting to a body that she had been the subject of abuse.  The Mother’s explanation of her failure to report at an earlier stage is credible. 

4. In re-examination the Mother further explained, in relation to not reporting earlier, that her understanding was that family violence meant serious physical abuse, for example the breaking of a hand.  In weighing this explanation it should be remembered that the Mother’s account does involve violence of that grade, as she alleges that the Father stabbed her, leaving a scar.  This second explanation for not reporting does not carry as much weight.

5. The Mother was also challenged as to inconsistencies in her evidence as to whether her sister, Ms E, lived with the parties for a period when they were first given their own accommodation in Australia.  Although in her affidavit at [133-4] the Mother described that the sister lived with them, in her oral evidence she denied that she had lived with them.  She explained that the sister Ms E spent about two overnight periods as a guest.  When confronted with this inconsistency the Mother sought to explain it by saying that her sister still stayed with their mother because she was unmarried.

6. The degree of inconsistency between the evidence that the sister lived with them, as opposed to spending a small number of nights there was an indicator of some unreliability.

7. The Mother was also challenged about her differing explanations about why the Father should not see the children.  She explained that she thought (at about the time of separation) that the Father should not see the children because he was not being responsible, specifically in not participating in appointments and the like that concerned the children.  She said that this failure was making her nervous.  This sits poorly with the case as she currently presents it, being one of extreme violence to her and significant violence to the children.

8. The Father was challenged about the inconsistency in his evidence as to his literacy.  He denied a capacity to read, but implicitly asserted that he could read.  He explained that he was illiterate, yet asserted that he would read bedtime stories to the children.  When challenged about this he explained that he pretended to read, tracing his finger along the lines of text.  While asserting a lack of literacy, he asserted that he was able to learn about parenting skills by using YouTube, an approach that would seem to require some literacy in order to enable him to search for items on YouTube.  The Mother accepted that the Father had difficulties with literacy.  He subsequently said that he now has some literacy, having studied since he came to Australia.

9. The variability in his evidence about his literacy is an indicator of some unreliability.

A Jones v Dunkel[18] inference?

[18]Jones v Dunkel (1959) 101 CLR 298

1. In criticising several aspects of the contested evidence, each party asked that a Jones v Dunkel inference be drawn, based on the failure of the other party to call a particular witness who, it might be thought, could give evidence in relation to the contested issue.

2. In dealing with the implications of the failure of a party to call a witness, in Jones v Dunkel Kitto J stated:

   It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff had been left untouched.

3. Economically, in Schellenberg v Tunnel Holdings[19] Gleeson CJ and McHugh J said:

   A Jones v Dunkel inference can only make certain evidence more probable.  It “cannot be used to make up any deficiency of the evidence.”

   [19]Schellenberg v Tunnel Holdings 200 CLR 121

4. In the same case, in determining whether an inference should be drawn, Gleeson CJ and McHugh J also approved the analysis presented in Cross on Evidence saying:

   The rule [in Jones v Dunkel] only applies where a party is ‘required to explain or contradict’ something.  What a party is required to explain or contradict depends on the issues in the case as thrown up by the pleadings and the course of evidence in the case.  No inference can be drawn unless evidence is given of facts ‘requiring an answer.’

5. In Family Law proceedings there are no pleadings.  The submissions and the evidence led by the parties set the factual parameters of how each puts their case.

6. In Paul’s Retail Pty Ltd v Sporte Leisure Pty Ltd[20] the Full Court of the Federal Court observed, in relation to the drawing of the inference:

   [88]  First, the primary judge was not obliged to draw the Jones v Dunkel inference. As the Full Court observed in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd[2011] FCAFC 53 at [78]–[79], “the rule in Jones v Dunkel is one of the most invoked but least understood rules in litigation”. The rule merely reflects commonsense. The inference is not mandatory and, “generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal”.

   [20]Paul’s Retail Pty Ltd v Sporte Leisure Pty Ltd [2012] FCAFC 51

7. In summary, the drawing of such a Jones v Dunkel inference is not mandatory, is dependent upon the circumstances of the case, and does not fill a gap in the evidence, but may mean that the evidence that is not so contradicted may be more readily accepted.  Whether such an inference should be drawn, and its effect will need to be considered in relation to each of the factual issues for which it arises.

Specific allegations

1. While the allegations against the Father were made both generally and specifically, it is the consideration of the specific allegations, within the context of the general allegations that provides the clearest factual lens for assessing both questions of unacceptable risk and also the issues more broadly determinative of the children’s best interests.  The key incidents and allegations are set out below.

The wedding

1. The circumstances of the parties’ marriage was raised by the Mother as going to the question of how the Mother would be affected if the Father was to spend time with the children, but as also being an issue that bears upon the credibility of the Father.  The Mother alleges that she was married at age twelve despite her resistance to the marriage.

2. The parties agree that the marriage was facilitated by the Mother’s grandfather.  She says that the Father told her that her father resisted his requests to marry the Mother for about six months before giving his permission.

3. In the lead up to the marriage the Mother says that she avoided the Father.  Being scared she would move to a different room within the house when the Father visited, or would leave the house. 

4. The Father disagrees with this description, describing the Mother as being happy to see him, and describing that they drank tea and coffee together.  His description of the lead up to the marriage was one of positive interactions between the parties, indicative that both were keen on the marriage occurring.

5. The Mother says that she did not want to get married and was scared.[21]  The Mother said that she was caught by surprise by the wedding ceremony, and was a reluctant participant, being forced by her father.

   [21] Affidavit of Ms Fatisi, filed 08 May 2019, [27].

6. The Mother alleges that she was twelve years old at the time of the marriage ceremony.  In his affidavit the Father accepted that this was the case.  However, in his oral evidence the Father challenged it.  This inconsistency is a matter that requires significant caution to be exercised regarding the Father’s credibility.  The acceptance that the Mother was twelve in the affidavit is sufficient, in combination with the Mother’s evidence, to find that the Mother was in fact twelve years old at the time of the marriage.

7. On the Mother’s account, her age formed a part of the circumstances in which the Father exercised control over her, and now goes to the impact upon the Mother if the Father was to spend time with the children (the impact issue).  Whether this is so is dependent upon conclusions drawn as to whether the Father engaged in family violence toward the Mother. 

8. A question also arose as to the Father’s awareness of the Mother’s age at the time of the wedding.  The Father says that he was not aware that she was less than eighteen years old.

9. The Mother accepts that she did not tell him her age.

10. The issue of whether the Father knew the Mother’s age was dealt with extensively by the parties in cross-examination.  The question arises as to what the significance of the Father knowing that the Mother was twelve could be in the case.

11. While the notion of an adult man knowingly marrying a twelve year old child is repugnant, the appropriate question is how such a conclusion could bear upon a fact in issue in the case as they go to the best interests of the children.

12. Insofar as his state of knowledge goes to the assessment of his credibility, the issue turns on whether it can be established that the Father knew her age when he says that he did not. 

13. It is more difficult to understand the relevance of the Father’s knowledge of the Mother’s age at the time of the wedding as bearing upon the impact issue.

14. Conceivably the Father’s knowledge of the Mother’s age could be relevant to the impact issue if it was accompanied by evidence that suggested that the use of such knowledge formed an aspect of the coercion, control, subjugation or domination of the Mother.  The use of such knowledge in such a manner could impact upon how time with the children would now impact upon the Mother. Conceivably it could also bear on the assessment of a power imbalance between the parties as a context for control and coercion. However, cogent evidence on these issues was not led.

15. Given the emphasis placed upon this factual matter by the parties, even if it is only relevant to credibility, it is a matter that requires resolution.

16. The Father accepted that he knew that marriage at such a young age could happen in Country T.  He also said that it was not legal.

17. To support the notion that the Father was aware of the Mother’s age at the time of the marriage, he was questioned about his comment in the domestic violence proceedings[22] between the parties that the Mother was like a child at the time of the marriage.  He said that the word that he used encompassed 18 year old persons as well as children.  He was not further challenged on this point.

    [22] Domestic violence proceedings were commenced through the ACT Magistrates Court, with a Domestic Violence Order made by in January 2017. This order remained in effect until 19 January 2019.

18. The Mother also described that she was still attending school at the time of the marriage.  The Father accepted that she was attending school, but denied knowledge of what class she was in, or that her attendance at school would have been inconsistent with the Mother being eighteen years old.

19. What was critical to the Father’s assertion that he thought that the Mother was eighteen at the time of marriage was his claim as to the conduct of the wedding ceremony.  His evidence was that at the ceremony the Mother’s mother had asserted that the Mother was then eighteen years old.  In her affidavit in reply the Mother denied that such an exchange had taken place.

20. The Father’s description of the representation as to the Mother being eighteen centred on the use of some form of identification document during the wedding.

21. In his affidavit evidence the Father said the following:

    [17] In 2005) we were formally married when our marriage contract was signed.  On that day, prior to signing the marriage contract I recall the Imam, who was officiating the event reading out Ms Fatisi’s date of birth and age as 12 years old from her Identification Card.  The Imam asked her mother and father “How old is your daughter Ms Fatisi?”  Ms Fatisi’s mother responded “She is 18 years old.”  I believed at the time that Ms Fatisi and I signed our marriage contract that she was 18 years old rather than 12 years old.

22. The parties did not live together until they had also undergone a wedding party, which did not occur until 8 April 2006.

23. In his oral evidence, when it was suggested to him that he knew that the Mother was not eighteen he initially said:

    No, what happened during our, like, marriage or, like, our traditional religious ceremony, the imam or the mullah who performed the ceremony, asked the mother that – how old Ms Fatisi was, and Ms Fatisi mother said that she was 18, and the mullah or the imam questioned that.  It says, like, her identity document, like, doesn’t show that, but she said as a Country V Citizen we don’t have birth certificate here in Country T.  So I was the one who give her birth and I know she’s 18...

    …That imam, like, asked to make sure that she was 18 because that imam said, like, according, like, the role of the ..... was there.  They said – he said, “I cannot perform, like, marriage on ..... like, to someone under 18. 

24. The Father later said:

    Again, her mother said that she was 18 and I gave birth to her.  I know she was 18.  And there was – there was not any official document or birth certificate ..... that I could check if she was 18 or she was not.  There was no such document and I didn’t follow it up.  I didn’t ask again. 

    MR HADDOCK:   Let’s just stop there for a moment.  You are now saying that there was no official document for you there to check when you say her mother said she was 18;  is that correct?

    THE INTERPRETER:   Like, her mother said that she was 18 and “I gave birth to her and she was my daughter and she is – she was 18.”  So I didn’t – I didn’t – I didn’t follow up.  I didn’t ask again if she was 14, she was 15, she was – I just – I just believe and trusted what the mother said.

    MR HADDOCK:   So if I could ask you to focus on my actual question, sir, because it’s really important.  You have just said that there was no document there for you to check that Ms Fatisi was 18;  do you remember saying that? 

    THE INTERPRETER:   There was no, like, document from Country V that I could check if – how old exactly she was.  Even I – I don’t know my exact age and my exact date of birth for myself.  So when I came here, I was asked how old I was.  I said that that’s what I think I was, my age.  Even I don’t know my own date of birth.

    MR HADDOCK:   But Ms Faiti’s identity card was there, wasn’t it, sir? 

    THE INTERPRETER:   I didn’t see this. 

    MR HADDOCK:   Then why did you tell the court in the document you prepared that the identity card was there? 

    THE INTERPRETER:   As I said, her mother said that she was 18 and I accept that and I didn’t – I didn’t question again because she said that she was the one who gave birth to her and she was 18. 

    MR HADDOCK:   I’m not asking you a question about what the mother said, sir.  I’m asking you whether the identity card was there for you to check or not. 

    THE INTERPRETER:   I’m .....  I didn’t check – I didn’t check any document.  I couldn’t check any documents.  I didn’t see – just that the mother said that she was 18 and the imam or the mullah performed at the ..... the ceremony, and then that was – that was it.  That was the end of it. 

    MR HADDOCK:   Why can you not tell me whether the identity card was there or not?

    THE INTERPRETER:   I wasn’t, like ..... any document that I would have checked if she has any – any – but I didn’t see a document on anything, so I didn’t check.  I wasn’t care.  I didn’t check anything to – if she has any document or not.  I didn’t ask. 

25. The issue with this evidence was whether it involved the Father departing from a central plank in his version of how he came to be convinced that the Mother was eighteen.  Initially his evidence was that the discussion of the issue by the Imam was prompted by reference to an identity card.  The evidence then moved to a discussion of whether there was a document from Country V (which was where the Mother was born).  The Father denied that there was such a document.  The evidence did not go so far as to establish that the identity document that the Father had initially referred to was such a document from Country V.  The denial of the existence of such a document from Country V was not inconsistent with the Father’s earlier evidence about an identity document at the wedding.

26. The questioning then moved to whether there was an identity document at the wedding.  The Father’s response was that he had not seen it.  When questioned further his evidence was that he had not checked, nor was there a document that he would have checked at the wedding.  He reiterated that he had not checked or seen a document (himself) at the wedding.

27. Although there is some doubt as to the extent of the Father’s literacy, it was accepted even by the Mother that his literacy is compromised, a matter that he emphasised on the question of whether he inspected a document about the Mother’s age.

28. Whether there was an inconsistency in the Father’s evidence about his state of knowledge at the time of the wedding is reliant upon whether there is a conflict between the notion of the Imam reading from the identity card and the Father neither seeing the document, nor checking the document, nor being inclined to have checked a document.  I am not able to conclude that there was a direct inconsistency.

29. In assessing the evidence about this matter, the Father relied upon a Jones v Dunkel inference being drawn from the failure of the Mother to call her Mother in relation to the purported exchange with the Imam in which she was alleged to have represented the Mother as being eighteen.

30. To the extent that the Mother sought in her case to establish that the Father knew that she was twelve at the time of the marriage, and that the purported representation by her mother was pivotal to that fact, it might have been expected that the Mother would call her mother in relation to that issue.

31. The failure to call her mother is in the context of her mother being present in Australia, and the Mother having ready access to her.  Her explanation was that her mother was very sick, had her own problems and that she did not want to involve her.  No explanation or description was given as to how the mother being sick impacted her or on her capacity to give evidence, nor how her problems had such an effect.

32. While some suggestion was raised by the Mother that the Father should have called the Mother’s mother, there could be no expectation that he would do so given the relationship between the Mother, her family and himself.

33. The failure to call the Mother’s mother leads to a position, in this instance, that the Father’s evidence may be more readily relied upon.  Under those circumstances, it has not been established that the Father knew that the Mother was twelve at the time of their wedding. 

34. This, in turn means that his credibility is not diminished by his assertion that he did not know.  It also means that if there was in fact another use available to a conclusion that he knew that she was twelve (such as it going to the impact issue), this also is not available.

35. This does not mean that the fact that the Mother was twelve becomes irrelevant.  The fact that she was a child at the time of the marriage remains one of the circumstances that falls for consideration in determining both the alleged coercion and control and risks flowing from that.

36. It also does not diminish any damage done to the Father’s credibility by virtue of his changing testimony about whether the Mother was twelve at the time of the marriage.

The wedding night

1. The Mother says that the first instance of sexual abuse occurred on the night of the parties’ wedding ceremony, when the Father forced himself onto her and had non-consensual sex with her.[23]  Amongst the more generalised assertions of sexual violence, the wedding night was presented as a particularised and detailed account of sexual abuse. 

   [23] Affidavit of Ms Fatisi, filed 08 May 2019, [22]-[26].

2. The Mother alleges that she was physically and sexually assaulted by the Father.  Despite her resistance, she alleges that he forced her to have sexual intercourse, causing her heavy bleeding from her vagina.  She alleges that she yelled to her mother and father for help and that she was slapped across her face very hard.  The Mother alleges that she then heard the Father “just outside the bedroom door” tell her mother that the Mother was “bleeding.  You will need to come with us to the clinic tomorrow.”

3. The Father denies this.  He describes consensual and enthusiastic participation by the Mother.  In his affidavit he alleges that the Mother told him that she had sex before.  In his oral evidence he accepted that this was a serious thing in their culture, but denied being very angry about the Mother not being a virgin on the marriage.  Adding to the account in his affidavit, he said that the Mother explained to him that she had been deceived by someone in Pakistan and made a mistake.  He said that this was not in his affidavit because he was not previously asked about this.

4. The Father also alleged that the Mother’s mother cut her finger to put blood on an item of clothing to show that the Mother was a virgin.  Again, this was not in his affidavit, despite his affidavit dealing directly with the issue of the Mother not being a virgin.

5. The first time that the issue of non-consensual sex on the wedding night was raised by the Mother was in her trial affidavit.  It was not in her previous affidavit.  It did not feature in the domestic violence proceedings.  The Mother explained that she had not told anyone about this, including her family, but that she felt at ease with her lawyer and that is why it was now in the affidavit.

6. Hence the first answer of the issue by the Father was in his trial affidavit, while his oral account under cross-examination expanded his account considerably.  The Father explained the incompleteness of his account as being the product of not being asked about particular matters.

7. Either of the parties’ explanations for deficits in their material and late presentation of important information could be true.

8. However, the late additions in each parties’ account sounds a note of caution in relation to their reliability on this critical event, which, on the Mother’s account marked the start of ongoing sexual abuse and general subjugation.

9. Again, this is an event that calls for a consideration of the matters raised in Jones v Dunkel.  On either parties’ account, the Mother’s mother was closely proximate to the parties on the wedding night and directly involved in the aftermath of that night.  She was either (on the Mother’s account) immediately advised by the Father of the injuries to the Mother, injuries occurring, apparently, with the mother close by, or (on the Father’s account) providing, in the immediate aftermath of their first sexual encounter, blood on an item of clothing.

10. It would be expected that, in the light of this contested and most important event, the Mother’s mother would have been called by the Mother to negate the Father’s account and corroborate the Mother’s account.  There has been no sufficient explanation as to why this was not done.  In this case, despite other questions about each parties’ credibility, the consequence is that the Father’s evidence that their wedding night was not the violent encounter described by the Mother should be preferred.  This leads to a conclusion on the balance of probabilities that the wedding night was not a violent encounter.  This does not necessitate or result in findings that the Mother was, or was not a virgin at the time of the wedding, such not being material to the issues at large in the case.

Sexual Abuse

1. The Mother also made more general allegations of sexual abuse against the Father.  She alleged that he “would have sex with me nearly every night.”[24]  This, she said, was despite her not wanting to have sex with him.  She said that on occasion she would tell him that she did not want to, and that he would remove her clothes without her cooperation.

   [24] Affidavit of Ms Fatisi, filed 08 May 2019, [71].

2. In the context of this almost nightly and ongoing sexual abuse, the Mother said that she attempted to kill herself on a number of occasions, by taking poison or medications.  The Mother says that when she was 14, on an occasion after the Father had sex with her, she attempted to kill herself using snake poison.[25]  The Mother says that she attempted to kill herself on two other occasions, but stopped after the birth of Y.[26]  The Father accepts that at some stage the Mother has attempted to harm herself.

   [25] Affidavit of Ms Fatisi, filed 08 May 2019, [76].

   [26] Affidavit of Ms Fatisi, filed 08 May 2019, [77]-[79].

3. Issues arose with respect to the generalised account of sexual abuse, specifically inconsistency as to the frequency of the alleged abuse.  While the Mother’s evidence in her affidavit was as to an almost nightly occurrence, in her oral evidence she said that the parties had not been sleeping in the same bed for a long period of time (before they came to Australia) and that the children slept in her bed. 

4. The allegations of sexual assault are serious and call for proof, on the balance of probabilities “to the high standard of certainty referred to in Briginshaw.”[27]

   [27]W v W (Abuse Allegations Unacceptable Risk)

5. At best the Mother’s account of sexual abuse is at least exaggerated.  The generalised assertions as to the abuse, along with the failure to establish the particularised account of the wedding night leave the proof of the sexual abuse short of being established on the balance of probabilities.

Physical and other Abuse

1. The Mother also alleges that she was repeatedly physically assaulted, abused and threatened by the Father.[28]  The Father denied such.

   [28] Affidavit of Ms Fatisi, filed 08 May 2019, [29-70]

2. Amongst this general assertion the Mother described a number of specific instances where she says that she was hospitalised, that her family were present for the assault, or that the Father’s family was involved.  The Mother says that she often called her parents to tell them that she had been assaulted, but that her father said “well, that is just what men do.”

1. One of the key instances involved the miscarriage of the parties’ first child in about September 2005.  In relation to the miscarriage, the parties agreed that they had been advised by the doctor that the cause of the miscarriage was that the baby’s umbilical cord was wrapped around the neck.  They disagreed about how this happened.

2. The Mother alleges that she was forced to undertake heavy household duties for the Father’s family, in the presence of his sister, that caused the miscarriage.  In contrast to the close detail the Mother recorded in her affidavit of the circumstances of carpet washing and manual labour that she attributed to the stillbirth of the parties’ first child, the Mother was recorded as having told W Organisation that the stillbirth was caused by her sister in law beating her.  The Mother tried to explain this away by saying that the sister was watching her as she cleaned the carpet.  This appears as a significant inconsistency.

3. The Father did not call evidence from his sister in relation to this matter.

4. The Mother also says that on several occasions following a physical altercation with the Father she was placed in hospital because of her injuries.[29]

   [29] See, eg, Affidavit of Ms Fatisi, filed 08 May 2019, [42], [61].

5. The Mother outlines one specific incident of physical abuse occurring just prior to New Year’s Eve 2008.[30]  The Mother says that the Father became angry after she asked him whether she could attend her mother’s New Year’s Eve party and hit her on the head with a hard object.  The Mother says that she fell unconscious and was taken to R Hospital in City S.  The Mother says that when she asked the Father what had happened he replied, “You made me angry.  I hit you with a metal pipe.  I have told the police it was all your fault.”[31]

   [30] Affidavit of Ms Fatisi, filed 08 May 2019, [37]-[40].

   [31] Affidavit of Ms Fatisi, filed 08 May 2019, [38].

6. The Father, in his affidavit, denied this.  In his oral evidence he questioned whether there was a R Hospital, a fact that he had implicitly accepted in his affidavit.

7. The Mother outlines another specific incident of physical abuse occurring in February or March 2016.[32]  The Mother says that following an argument about the Mother’s work and spending, the Father attacked her with a knife, causing a deep cut on her arm.  The Mother says that X was present during this incident and that she thought that the Father had been initially walking toward X with the knife.[33]

   [32] Affidavit of Ms Fatisi, filed 08 May 2019, [52]-[60].

   [33] Affidavit of Ms Fatisi, filed 08 May 2019, [56].

8. Amongst the many assaults alleged against the Father, this bears a high level of seriousness, and is also the subject of current, although controversial evidence of injury.  Its potential importance in the proceedings warrants the evidence being set out in detail.

9. The Mother’s affidavit stated that in around February or March 2016, before the parties’ arrival in Australia, the Father attacked her with a knife and caused a deep cut on her arm.[34]  The Mother said that the parties were arguing about her working and spending money, and that X entered the room crying.[35]  The Father allegedly went to the kitchen and returned carrying a 20cm knife used to chop vegetables.[36]  The Mother said the Father walked towards X and that she pulled X behind her, fearing for his safety.[37]  The Mother said that she still has the scar from this incident.[38]  The Mother says that she insulted the Father and the Father raised the knife and brought it down, hitting the Mother about 4cm below the shoulder on the back of her arm and curving around to the front, stopping just at the inside of her elbow.[39]  The Mother said that she left the house with X and got 48 stitches at the health centre.[40]  The Mother said that she did not go to the police because she felt that they would not help her if she left the Father.[41]  The Mother said that she recently began laser treatment to try to remove the scar.[42]

   [34] Mother’s affidavit filed 8 May 2019, [52]

   [35] Mother’s affidavit filed 8 May 2019, [53]-[54]

   [36] Mother’s affidavit filed 8 May 2019, [55]

   [37] Mother’s affidavit filed 8 May 2019, [556]

   [38] Mother’s affidavit filed 8 May 2019, [53]

   [39] Mother’s affidavit filed 8 May 2019, [56]-[57]

   [40] Mother’s affidavit filed 8 May 2019, [58]

   [41] Mother’s affidavit filed 8 May 2019, [59]

   [42] Mother’s affidavit filed 8 May 2019, [60]

10. The Father denied attacking the Mother with a knife in the presence of X and causing a deep cut.[43]  He denied that the Mother had stitches on her arm from an injury caused by him, instead saying that the Mother has a scar on her arm as a result of trying to remove a tattoo.  The Father stated that the Mother obtained the tattoo around 2013 because of her love for him, and that following separation she has arranged to have it removed.[44]

    [43] Father’s affidavit filed 31 May 2019, [42(c)]

    [44] Father’s affidavit filed 31 May 2019, [42(c)]

11. The Mother’s affidavit in reply stated that she had learnt to do cosmetic tattooing as part of her training.  The Mother says that she tattooed a letter onto her arm at around the age of 18 to represent a Language A word ‘…’ meaning ‘no one is by my side’.[45]  She denied ever having tried to remove the tattoo and provided a photo of the tattoo.  The photo of the tattoo showed no sign of a nearby scar.

    [45] Mother’s affidavit filed 12 June 2019, [10]

12. While there was little cross-examination about this serious incident, the Mother was challenged as to the difference in her testimony between the domestic violence and family law proceedings, specifically as to the increase in detail.  The Mother attributed the improvement in her memory to her focus on the incident.  She also explained that she was busy at the time that she gave her evidence in the domestic violence proceedings.  She also said that she was not thinking about such things (the incident) at the time of giving evidence in the domestic violence proceedings.

13. In the domestic violence proceedings in the Magistrate’s Court the Mother gave evidence about the scar on her arm.  The transcript of these proceedings was in evidence at MsF8 of M1. 

14. At p13 of the transcript the Mother said that she had got the scar when she and the Father had argued and he had assaulted her with a knife.  The scar was described at p14 by the Magistrate as approximately 10cm long, perhaps a little longer, and above the elbow joint.

15. In the Magistrate’s Court the Mother (p14) said that she was unable to go into detail about the assault.  She then described that the parties had argued, that she had been slapped “a few times” to the face and fallen to the floor.  She said that she was then held down and strangled by the Father with his hands around her neck.

16. The Mother said that she did not lose consciousness, but with the knock to her head “wasn’t myself” and said that she could not recall how she had got the cut from the knife.  She said that she could not remember being cut by the knife, but remembered the Father holding a knife (p19).

17. The Mother said that X was present for the incident.

18. Accepting that the circumstances of a traumatic incident in which a person is assaulted and strangled may mean that a clear recollection is not available, the level of disparity between the two accounts, including the significant improvement in the detail given to this Court, creates serious doubt as to the reliability of the account.

19. While the account given by the Father about the scar being an attempt to remove a tattoo, an account challenged by the Mother in her material, lacks credibility (the scar is not near the tattoo; the lack of any information as to how the Father could have concluded that it was an attempt to remove the tattoo), the lack in his account does not fill the deficits in the Mother’s combined accounts.

20. This is not an incident established on the balance of probabilities.

21. The Mother alleged a further incident, when she criticised the Father for having a relationship with his second cousin, where he beat her in front of her family.  No supporting evidence was called in relation to this incident.

22. The Mother alleged that she was hospitalised as a result of the actions of the Father on a number of occasions, which the Father denied.  The Father indicated prior to the trial that he would obtain records from the hospitals in Country T.  He did not.  No evidence was presented as to why this did not occur, or whether there was an impediment to obtaining such records.

23. The Mother also alleged an incident whereby a sibling of the Father’s had killed his wife and then fled.  The apparently casual attitude of his family to this event led the Mother to be fearful for her safety.  In response the Father denied that he had such a brother.  He did not call any family members in relation to the constitution of the family, nor in relation to the reporting (or non-reporting) of the incident amongst his family.

24. The Mother also asserted that she has been beaten by the Father many times and has spoken to the police many times (which far exceeded what she alleged in her affidavit).  There was some inconsistency between the parties about whether there would be police records in relation to matters that they had alleged.  The Father asserted that there were no police records, evidenced by their ability to present a clean record in order to travel to Australia, but also appeared to suggest that a record would have been made in relation to the Mother being arrested for drug use, as set out later.  The inconsistencies in the Father’s evidence in relation to the availability of records do not allow me to accept his accounts about whether police records would or would not be available.

25. The Father indicated prior to the trial that he would call his sister to give evidence to negate the Mother’s testimony about a number of matters involving the sister, including the incident that the Mother says caused her to miscarry.  He indicated that this would need to be done by electronic communication.  He did not do so, and gave no adequate explanation as to why he did not do so.

26. There are difficulties with each of the parties’ cases in relation to the issues alleged of violence.  Each is inconsistent, providing varied accounts.  Neither (particularly the Father) called potentially corroborating witnesses.  The Father failed to produce, or to explain why he did not produce, records that he said that he would obtain.  It is necessary to exercise caution in respect of each of the parties in relation to this area of evidence.

27. Again, the allegations of violence against the Father are very serious.  They rely particularly heavily on conflicting testimony, given under circumstances where there is a need for caution in relation to both of the parties.  They call for proof on the balance of probabilities in accordance with the principles set out in Briginshaw.  Even absent the calling of the Father’s sister, they do not meet that standard.

The Children

1. The Mother says that the Father was physically abusive to Y on two occasions.  On the first occasion, the Mother says that the Father threw things at Y when she tried to show him a drawing.[46]  On the second occasion, the Mother says that Y told the Mother that the Father had hit her on a head with his work tool.[47]  When the Mother asked the Father about the incident, the Mother says he replied “She was bothering me and she got punished for it.” 

   [46] Affidavit of Ms Fatisi, filed 08 May 2019, [99].

   [47] Affidavit of Ms Fatisi, filed 08 May 2019, [100].

2. The Father denied hitting Y.

3. Again, noting the seriousness of the allegations made and their reliance on the conflicting testimony of the parties, and further noting the difficulties in relation to the reliability of each of the two parties, these allegations have not been established.

Drug use

1. The Father alleged that the Mother abused opium in Country T. 

2. He said that the Mother’s opium use in Country T was when she was pregnant with X.  He said that she used the opium, leaving the home when the Father left for work and returning late at night.

3. When asked by the ICL when in the marriage the Mother had started to use opium, the Father said that he noticed after X was born, and a man called Mr BB brought a book and said that it belonged to the Mother.  He said that inside the book was a plastic bag which smelt of opium.  The Father alleged that Mr BB had an affair with the Mother.  He says that this is an issue that he never took up with the Mother. 

4. There was a clear conflict within his evidence about when he became aware that the Mother was smoking opium.  It is also difficult to accept that the Father received drugs for the Mother from a man that she was purportedly having an affair with.

5. In his oral evidence the Father alleged that he had gone to court as a result of the Mother being arrested in relation to drug use, and spoken to a judge about whether the Mother was using drugs, and that, for the sake of the children, he said that he had not seen her using drugs.  None of this was in his affidavit.  He says because he was not asked about this before and so did not talk about it.  However, he reported in his affidavit the Mother being arrested by the police in relation to opium use.  It is difficult to understand how his dealing with the judge did not come up under such a circumstance.

6. The Father said in his oral evidence that he had seen the Mother smoke opium three to four times, conflicting with his evidence in his affidavit, at [56], that he had seen it once, on an occasion when X was taken to hospital.  This evidence also appeared to differ from his affidavit at [95] where he asserted that he had witnessed the Mother smoking opium “many times.”  He alleged that he could smell opium on the Mother on occasions other than those in which he had seen the Mother use opium.

7. The variability in the Father’s answers about when he had observed the Mother to use opium, and the variability in his evidence about when the Mother was using opium mean that these claims by the Father do not have credibility.  They should not be accepted.  Rather, the Mother’s denials should be accepted.

Financial abuse

1. The Mother alleges that the Father was financially controlling, in particular whilst the parties were still living in Country T.

2. In the Domestic Violence Order proceedings the Mother asserted complete financial and movement control by the Father in Country T.  That is, all money was sourced from the Father, and the Mother was unable to go out without the Father. 

3. It was put to her that her evidence in the domestic violence proceedings was that she had only been able to buy items from the Father’s account.  The Mother then alleged that she had not been interpreted correctly.  However, she accepted that her evidence had been that the Father accompanied her whenever she went shopping.

4. While the Mother had denied in the domestic violence proceedings that she had an account in Country T, there was a partnership account for the Mother’s business to which the Mother had access.  The Mother sought to explain her evidence in the domestic violence proceedings, that she did not have an account in Country T, initially by saying that she gave that evidence because she had finished the business and closed the account eight months prior to moving.  She then explained that it was a business account, implying it was not for her to draw upon it.  The Mother then admitted that she accessed the account for the purpose of drawing from the profits of the business.  Such money was then spent by her, shopping with her sister, although she also said it was for the children.

5. This evidence conflicted strongly with her previous representations about the Father’s manner of exercise of financial control over her.  The inconsistencies in her accounts about financial control meant that the Mother’s claims as to financial control should not be accepted.

Issues following the move to Australia

1. The parties moved to Australia in July 2016. During this time the parties stayed for a short period with the Mother’s family, before obtaining a home in Suburb U. Shortly thereafter the Mother moved back in with her family. In August 2016 the police became involved and the Mother then obtained a domestic violence order through the ACT Magistrates Court.

2. The Mother’s key complaint about the Father in her oral evidence was as to him failing to demonstrate that he was a responsible person when he came to Australia.  She said that she gave him the opportunity to change his behaviour, but that he did not.  She complained that his manner and his way of thinking did not change following the move to Australia.  She complained that he was not helping at all when they were in Suburb U.

3. The Mother complained that the Father behaved in a controlling manner toward her following the move to Australia and prior to the involvement of the police and the obtaining of the domestic violence order.

4. The Mother explained that the Father was restrictive about the time that she spent with her family, describing that he was putting pressure on her whenever he could.

5. The Mother gave evidence in the domestic violence proceedings that the Father would not let her visit her sisters and her mother.  The Mother alleged that the Father was verbally torturing her.  Necessarily this could only be a reference to the period of time while the family was living in Suburb U (as prior to that they actually stayed with the Mother’s family).

6. However, it should be noted that the Mother’s complaint during this time was that the Father was spending his time at English language classes, leaving her to deal with the other needs of the family, for which she appears to have relied on her family.  During this time it appears that she had frequent and ready access to her family, including to her sister, Ms E, staying with the parties in Suburb U for a period.

7. She then clarified her evidence to say that she was not talking about the period of time when they were staying in Suburb U, that she was not asserting that he was controlling during this period.  It is difficult then to understand how, or in what manner the Father was controlling or restrictive of the Mother, particularly in relation to her time with her family, and the time when they were not staying in the same home.

8. There is a sharp inconsistency between the Mother’s evidence in the domestic violence proceedings and her evidence in the Family Court about this period, varying between verbal torture occurring while the parties lived together in Suburb U, to it not occurring during that period.

9. The Mother’s allegations of control by the Father during the short period in Australia prior to the obtaining of the domestic violence order is difficult to follow and appears inconsistent.  For example, it is difficult to follow how he exercised control in relation to her time with her family, particularly when her complaint was effectively that he was not around, and that she relied on her family in his absence.

10. The Mother’s claims as to control during this period should not be accepted.

The police attendance on 24 August 2016

1. The Father says that on 24 August 2016 he went to the Mother’s family’s home to see if the Mother still loved him and wanted to be in a relationship with him.  By this stage the Mother had been living with her family and not in the Suburb U home for a number of weeks.  The police attended while the Father was still at the Mother’s family home.

2. The parties’ evidence contained inconsistencies about precisely how this visit unfolded.  This included inconsistencies about who was in the lounge room at various points and where the children were.  They were not inconsistencies that appeared to carry any great significance, nor to be outside what might arise when parties remember an event occurring some years ago.  During cross-examination, the Mother said that the parties argued about the Father not taking responsibility and wanting to go to his English classes.

1. Despite the instruction to the parties sent to their lawyers[57] which resulted in the children being brought to the Court building for assessment, the Mother claimed that the children seeing the Father at that time was unexpected for her and that it occurred suddenly, with only 20 minutes warning.  She also claimed, in her oral evidence, that a few minutes beforehand Y said that she did not want to see her Father.  The Mother said that she knew that the children were to see the Father in the process, but did not think that stress or pressure would be placed on the children.

   [57] Exhibit F4

2. The Father disputes that Ms Q gave instructions that he not give gifts to the children as part of the interview process.

3. The consequence was that there was no opportunity for Ms Q to assess X with the Father, and only limited opportunity to assess Y with the Father.

4. Ms Q observed that reports from supervised time would make it easier to assess the children and the relationships.

5. It is not clear that the giving of presents impaired the assessment process, although the Mother complains that this was an attempt to manipulate the children, who were ultimately disappointed as the Father did not provide a password for the devices.  The Mother’s view was that Y was unlikely to be manipulated by the giving of gifts.

6. Ms Q made differential recommendations, dependent upon conclusions reached by the Court in relation to the underlying facts.  In general terms Ms Q recommended that, if the Court determines that the Father poses an unacceptable risk to the children, that there be no contact or communication.  This position could be ameliorated to allowing supervised time coupled with concurrent therapeutic work with Y.

7. Ms Q recommended that even if the Court does not find that there is an unacceptable risk, then a combination of supervised time along with therapy for Y was recommended, before a transition to unsupervised time.  The structure of those arrangements was recommended to change dependent upon findings about the scope of family violence.  If the violence is as alleged by the Mother, then she thought that the Father should undertake an anger management program prior to transitioning to even to supervised time.

8. Ms Q reported that Y had said that she was scared that the Father would “maybe hit or yell at me” [113]. Ms Q said that Y did not show distress when saying this. Rather she was matter of fact. Her emotional affect was not consistent with what she said at this point. This indicated that this did not have a current emotional impact upon her. This lack of emotion might be attributable to the time that has passed since she spent time with the Father. Similarly, no particular emotional affect was noted when Y described violence by the Father toward the Mother, including holding her by the throat, and her going to the neighbours for help.

9. Y told Ms Q that she did not know why she had stopped spending time with her Father.  She described her Father assaulting her Mother by holding her by her neck.  She also said that her Father would not permit the Mother to visit the maternal grandmother (I note that the maternal grandmother has been living in Australia since Y was approximately two years old).  Y also said that the Father slapped and yelled at Y.

10. The Family Consultant compared what was said by Y to her with what Y had said to W Organisation, noting that Y’s report to her did not paint the Father as darkly as possible.

11. Ms Q thought that what Y described regarding the Father was “her truth”.  Presumably this means that Ms Q accepted that Y believed what she said about the Father.

12. The report writer was asked about violence described by Y to Mr C.  Y told him that she was present when the Father stabbed the Mother and that Y was cut on the hand in this event.  This is an event that both parties say did not occur.  The report writer thought that Y’s report could suggest both that she has undergone significant emotional trauma, and also compromising of her emotional well-being.

13. Ms Q assessed that Y “indicated a willingness to try and re-establish her relationship with her father.”  During the observation she thought that Y appeared “ill at ease” and was not entirely comfortable with the Father in that context.  Ms Q noted that this may have been attributable to the three years that had passed since they had spent time together.  She observed that Y and the Father hugged and exchanged smiles.  She observed no overt signs of stress in Y.

14. Y told Ms Q that she thought that she would spend time with her Father weekly to see if he had changed, but that she thought that someone else should be present.  Ms Q noted that if it is found that the Father has not been violent as alleged then the weight to be attributed to Y’s views should be dealt with cautiously.

15. The Mother says that she has told Y that she, the Mother, does not want to see the Father but that Y can visit him.  She says that she has told Y that it is Y’s right to see her Father if she wants to, and that no-one can stop her.

16. Ms Q thought that this could make it difficult for Y to enjoy positive time with the Father.  It places Y at the centre of the parent’s conflict that could be harmful to her well-being, sense of self and emotional well-being.

17. Ms Q did not consider that the three year hiatus in the relationships in itself was a complete bar to re-establishing a relationship, but that it may make it quite challenging to re-establish a relationship with the children.

18. Ms Q observed that generally it is “considered to be beneficial for children to have a meaningful relationship with both their parents unless there is a serious risk of harm.”  She observed that the absence of a parent could cause a child to feel abandoned and experience a sense of worthlessness.  Absence of a parent carries with it the potential to compromise belonging and a coherent sense of self.

19. Those benefits require examination in the context of the allegations of violence.  If the level of abuse was as reported to Ms Q (as opposed to that reported to W Organisation) she thought that there is potentially some benefit to Y spending time with the Father.  If the level of abuse was as reported to the W Organisation counsellor (e.g. being hit by a hammer and the abuse witnessed against the Mother) then Ms Q was not as comfortable with time with the Father, ultimately considering that the time could then not move to unsupervised.

20. Ms Q also noted the emotional impact if Y’s report to W Organisation was accurate.  Under those circumstances it would be emotionally harmful to spend time with the Father.  There would be a risk of Y being re traumatised.  Chronic family violence as described by the Mother would raise concerns about progressing forward in such a manner. 

21. If the reports are accurate, then Ms Q thought that Y may be subject to physical abuse or to witnessing such behaviour and it would be very difficult to support an order for time with the Father.

22. Depending on the findings as to family violence, the report writer recommended the Father’s participation in programs directed to anger management and parenting prior to any supervised time and therapeutic counselling for Y.

23. On the other hand, Ms Q thought that if there is no finding as to violence, or odd occasions of minor violence (such as pushing) against the Mother, then Ms Q recommended supervised time and therapeutic work with Y.

24. As noted above, the report writer was unable to observe X with the Father.

25. Ms Q observed, as illustrative of Y’s delay, her inability to engage with X in any meaningful way.  During the assessment she did not hear him speak (despite being spoken to by his Mother).

26. Ms Q’s observation of the Mother with Y and X revealed no significant concerns about their relationships.  She noted that generally Y, X  and the Mother seemed relaxed in each other’s company, sharing smiles.

27. Ms Q thought that it was unlikely that X would have any memory of spending time with the Father.

28. Ms Q was questioned as to the impact that the children spending time with the Father may have upon the Mother’s capacity to parent.

29. There is an issue as to whether the Mother could emotionally tolerate a relationship between the Father and the children.  It could be expected that her anxiety would increase with a transition to unsupervised time, although Ms Q thought that supports could be put into place to ameliorate that.  She thought that the impact upon the Mother, if she has been treated by the Father in the way that she describes, and is forced to present the children for time with the Father, would be likely to undermine her capacity to parent, as such contact between the children and the Father could cause both her mental health and parenting capacity to deteriorate.

30. The potential consequence for the children is a compromise of the Mother’s capacity to be attuned to the children.  The Mother’s capacity remains particularly important where the Mother will remain the primary carer, and her psychological functioning is likely to have effects on the parenting of the children.

31. Ms Q also discussed the significance of the two children being treated differently in relation to the Father.  If the Mother has unreasonably not allowed X to participate in the observation then the Mother could be sending Y the inferred message that she does not want her to have a relationship with her Father.  Under those circumstances Y may be exposed to conflict between the parties.  If only Y goes to spend time and X does not it could create tensions in the sibling relationship, leading to a dysfunctional sibling relationship.

32. Ms Q considered that Y’s behavioural difficulties, which have been attributed to exposure to trauma, could have been caused by the sudden loss of her Father in combination with the experience of migration.

33. The report writer also considered that, for time with the Father to work for the children, the best opportunity comes if the Mother being supportive of such time.  Otherwise, she thought, there is a risk of an undermining of the relationship.

34. The Father’s negative attitude to the Mother was raised with Ms Q.  She did not think that the mere holding of such a view would cause significant impact upon the children, particularly if the view is not discussed in their presence.  She thought that such a view could still be communicated non-verbally.  Ms Q did not observe the Father to show any anger against the Mother.

35. Although it was speculatively suggested that two service providers may be able to assist the parties in relation to the Father spending time with the children, no evidence was led to establish what programs are available and as to their suitability to the current case.

36. On the issue of parenting capacity, the report writer noted no major concerns in relation to the Mother from the observation, and noted the material produced on subpoena from W Organisation indicated that she was generally attentive.  Some concern was raised by the description by each of the parties that they wanted to be the children’s “friend.”  She noted little opportunity or collateral information by which the Father’s capacity might be assessed, but indicated that the Father’s provision of gifts contrary to instruction was a cause for some concern.

Discussion

1. As identified at the start of the judgment the case as presented by each of the parties centred on whether the Father presents an unacceptable risk of harm to the children and what, if any, benefits flow to the children from experiencing a relationship with him.  The issues of risk, and a number of the factors that go to the assessment of the benefits of a relationship, are answered by an assessment of the allegations made against the Father.  Those allegations also go to an assessment of the Mother's capacity to emotionally care for the children, or the risk that she may emotionally abuse the children, largely based upon whether she is justified in her conduct of excluding the Father from the children's lives.

2. Issues also arose as to the exercise of parental responsibility between the parents.  This is a matter that can be dealt with shortly, as the common position by the end of the trial was that there should not be an order for equally shared parental responsibility.  In the circumstances of this case this was a sensible and almost unavoidable position for the parties to take.  Wherever the truth is determined to lie in respect of the allegations that have been made, there is a vast gulf between these parties.  That vast gulf occurs in the context of the Father having had no contact with the children for a number of years and accordingly little to no knowledge of their circumstances, while the Mother who is still on each parties’ case the primary carer for the children is in the best position to exercise parental responsibility in the children's interests.  This remains the case even if there are deficits identified in her capacity to emotionally care for the children. 

3. There could be no expectation that if an order for equally shared parental responsibility was to be made that, in the absence of common knowledge about the children, and taking into account the gulf between the parties, they would be able to comply with the obligations that would be imposed upon them by the operation of s 65DAC.  That section requires cooperation in decision-making.  There can be no expectation that there could be such cooperation or that forcing such cooperation would be to the benefit of the children. 

4. Accordingly an order for sole parental responsibility will be made in favour of the Mother.

5. It was also uncontroversial, by the end of the proceedings that the Mother would remain the primary carer for the children.  Given that the Father, in a practical sense, has no relationship with the children, and the Mother has always been strongly involved in their care, this too is an appropriate outcome.

6. There remains, however, the difficult question as to what, if any, relationship the Father should have with each of the children.  In answering this, the primary issue between the parties in the case was as to whether or not the Father is an unacceptable risk to the children. This, however, is not the only question.

7. The approach to assessing whether or not there is an unacceptable risk has been set out above in the judgment.  The first step in this case is the assessment of whether or not the underlying facts which are said by the Mother to demonstrate an unacceptable risk have been established on the balance of probabilities.  These may be set out as being in four categories.  The first category is as to the specific instance of sexual assault alleged to have occurred on the wedding night, the second the generalised allegations of sexual abuse, the third being the specific instances of other violence alleged and the fourth being the generalised assertions of violence.  Each of these allegations falls to be examined in the context that the Mother was married to the Father at the age of twelve.

8. As indicated earlier in the judgment, none of these allegations were established on the balance of probabilities.  In particular, the allegation of sexual assault on the wedding night is established on the balance of probabilities to have not occurred.

9. This does not end the enquiry as to whether or not there is an unacceptable risk but places it into the category described by the Full Court in Johnson & Page[58] of one in which

   a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof.

   [58]Johnson & Page (2007) FLC 93-344

10. The remaining question of risk centres largely upon the potential consequences to each of the children of exposing them to someone who might have been the source of previous trauma.  The consideration of that possibility, notwithstanding the lack of findings on the balance of probabilities against the Father is mandated by the approach set out above in M & M.[59] 

    [59]M & M (1988) 166 CLR 69

11. The assessment of risk of harm requires an assessment both of the risk that exposure to the Father would be an exposure to somebody who has caused them trauma in the past, along with an assessment of the risks that accompany such an exposure.

12. Dr D and Dr B pointed to risks for the children if they are exposed to the Father, on the basis that the Father has been a source of trauma in the past.  While the diagnosis for each of the children points to the possibility of previous exposure to trauma, neither diagnosis establishes such exposure, the trauma itself being a precursor for reaching the diagnosis.  If the children have been exposed to trauma in the past than the diagnosis identified by each of them becomes available. 

13. Dr B, in particular, was frank that the previous exposure to trauma was only one explanation for the presentation of X.  Dr D thought that Y’s presentation was of such a nature that it would cause him to look for trauma in her background.  On each of their formulations there remains a possibility that each has been traumatised in the past that is relevant to the assessment of risk.

14. Dr D and the Family Consultant were divergent in their evidence about a potential source of trauma for Y being something other than the Father.  They were divergent as to whether or not the changes encountered by Y, being the sudden loss of her Father from her life, her relocation to a new country, her immersion in a new culture and language could be traumatic in the sense required to explain her presentation.  Dr D did not accept this as a possible explanation of Y’s previous trauma, whereas the Family Consultant did.  Given the potentially circular reasoning engaged in by Dr D I am inclined to prefer the evidence of the Family Consultant as to the source of trauma potentially being the changes in Y’s life.  This still falls short of demonstrating that those changes were in fact causal of Y’s presentation, merely that they may have been.

15. The availability of these alternate explanations for the presentation of each of the children is significant to the assessment of whether or not the Father poses a risk.  If he were the only possible source of trauma, and the likelihood is that the children had been exposed to trauma, then those two factors tend towards a conclusion that exposure to him is also an exposure to risk.  The alternate explanations undermine, although they do not exclude such a conclusion.

16. If the Father has been the source of trauma then Dr D was concerned as to the consequences for Y of further exposure to him.  Under such a circumstance his diagnosis of PTSD would appear to be good and the exposure to the Father introduces a degree of risk as to Y’s recovery.  At the same time the Family Consultant, unlike Dr D, had the ability to observe Y in the presence of the Father albeit only for a limited period of time.  While she observed some discomfort in Y she did not observe Y to be undergoing stress at the introduction to her Father.  Again, this does not definitively answer the issue of the Father as the source of trauma.

17. There remains the possibility that the Father could have been a source of trauma.  The likelihood of such, however, is weak given the nature of the evidence that has been presented and the factual findings that have not been made.

18. That leaves the position that exposure to the Father presents a low risk of exposure to a source of trauma which may or may not be causally related to the children's current presentation.

19. Observations have not been able to be made of X with the Father as the Mother withheld him from that part of the assessment process.  There is no demonstration in his case of what his reaction might be at being exposed to his Father.  Again, on Dr B’ assessment, if the Father has been a source of trauma for X, then in that case there is likely harm to be occasioned to X on further exposure by virtue of his reaction to that exposure.  This, given my findings above, is a minimal risk.

1. On balance, given the factual findings that have been made, or rather not made in respect of the Father, and the assessment of the weakness of the evidence to indicate that he was the previous source of trauma, I find that the risks occasioned to the children, by him are low.  That, however, does not answer fully the question of the risks posed in the children coming into contact with him.

2. While a part of the case for the Mother involved the adverse impact upon her of the children spending time with a person that she alleged had brutalized her, one of the alternative points made in the Mother's case was that if I did not come to the conclusion that the Father had engaged in the conduct alleged against him by the Mother, then the allegations were demonstrative of the lengths to which the Mother would go to ensure that the Father will not have a relationship with the children.  Already there has been a hiatus in the relationship since August 2016, a hiatus occurring at the instigation of the Mother. 

3. To a degree, one risk is the corollary of the other.  The more likely it is that the Father has acted in the manner the Mother alleges, the greater the risk of adverse impact upon her.  The less likely it is that the Father has engaged in the conduct that has been described, then the greater lengths the Mother has gone to in order to exclude him, and the greater the risk that the Mother will take steps to undermine the relationship as demonstrated by her conduct following separation.

4. The further issue that arises is that, whatever the reason, each of these children presents to treating practitioners as being severely compromised.  The introduction of the Father into their lives marks a sudden and serious change and one that, it may be expected, comes in the context of fundamental opposition on the part of their primary carer.

5. Against these risks need to be weighed the benefits that may come from meaningful relationship as a consequence of reintroduction to the Father.  Those benefits are difficult to weigh.  The Family Consultant supports the notion that relationship with the Father will assist the children in understanding their own identity.  This is based upon a general understanding of the benefits of relationships with both parents, and that relationship with the Father may provide a sense of belonging and sense of self.   She also notes that Y has, at some stages, expressed some desire to spend time with the Father.

6. However, that would occur in a context where it may be expected that there would be opposition mounted by the Mother as the primary carer, potentially undermining the benefits of that relationship. 

7. Any reintroduction of the Father needs also to be understood in the context that it would constitute a major change for children who each already display traits supportive of the notion that, whatever the source, it is likely that they have been exposed to trauma, and that exposure has caused harm.  In X’s case the nature of that harm may include global developmental delay.  In Y’s case, that harm may include PTSD. 

8. It is far from clear how Y would react to such a change, particularly where it is opposed by the Mother.  It is even less clear in relation to X, for whom there has been no assessment, and who presents with added challenges flowing from his global developmental delay.

9. The uncertainty in relation to how X might respond also leads to added uncertainty as to the generalised benefits he might receive from relationship with his Father. 

10. Even absent an unacceptable risk being presented by the Father, the lack of relationship between him and the children, the Mother’s opposition, and the children’s individual difficulties point against the attempt of reintroduction of the relationship.  The effects of such a change are highly unpredictable in the lives of these already compromised and vulnerable children.

11. Such change would also come in the context of there being no capacity to assess the Father's own parental capacity.  He has not spent time with the children for a number of years and his ability to interact with the children has at best been assessed by a ten minute session with Y, being a session in which the Family Consultant was critical of him because he was unable to comply with her directions in respect of that session.

12. The only form of reintroduction, in the case of Y which was entertained by the Family Consultant, involved both therapeutic intervention for Y and supervised time, in order to try to re-establish a relationship with the Father.

13. Even if the difficulties pointed to above could be overcome by such an approach, and I do not suggest that they would be, the evidence did not show any pathway of available therapy that would be suitable for Y, nor the availability of suitable supervision services, particularly in the context where supervision, to be effective, would require access to G Language or Z Language interpreters to understand the nature of the interactions that were taking place between Y and the Father.

14. Despite the lack of a finding of unacceptable risk being presented by the Father, the lack of relationship, the lack of demonstrated capacity by the Father, the trenchant opposition by the Mother, the compromised nature of the children, the uncertainty of the impact of such change upon the children coupled with the uncertainty of the benefits of a reintroduction tell against orders being made for the children to spend time with the Father.

Conclusion as to the orders to be made

1. Orders will be made for the Mother to have sole parental responsibility for the children and for the children to live with her.  No orders will be made for the Father to spend time with the children.

2. On the making of these orders, a basis for the orders sought by the Father regarding relocation and overseas travel do not arise.

3. The remaining question that lingers is whether the Father should be able to have access to information about the children.  This is a result that the Father sought when relinquishing his claim for equally shared parental responsibility.  By Order 6 in his amended initiating application the Father sought that the Mother facilitate both information from and his attendance at the children’s schools.  These orders will not authorise his attendance, but that does not dispose of his request for orders about information.

4. Such an order would impose a burden on the Mother, as she would be required to provide authorisations for the Father to have access to the children’s school records, and would be required to communicate information to him about the identities of schools. 

5. It might be thought that, in the future if the Father is sought out by the children, as adults, that it would give him familiarity with each child’s circumstances to help found the reintroduction of relationship.  The holding of relevant information about the children may also assist him in communicating to them that his absence from their lives was not the product of a lack of interest on his part.  These are sufficient to impose the burden of providing for the Father to have information about the children, by the provision of authorities to schools and identification of the children’s schools from time to time.

Epilogue

1. In the face of a finding that the Father is not an unacceptable risk to his children, it is a difficult outcome that he has no relationship with the children and they have no relationship with him.  As noted above, this deprives the children of connection to and relationship with him.  However, despite the difficulty in the result, it is necessary to have at the forefront of the decision making the best interests of each of the children.  Their best interests are derived from all of their circumstances and are not dictated simply by the desirability of relationship with each of their parents, nor simply on the basis of whether a parent has behaved in an unmeritorious manner.

I certify that the preceding three hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 September 2019.

Associate:

Date:  5 September 2019