KABIR & KABIR

[2020] FamCA 655

FAMILY COURT OF AUSTRALIA

KABIR & KABIR [2020] FamCA 655

FAMILY LAW – CHILDREN – handover arrangements – conflicting accounts of attendance – matter listed for factual determination as to who attended – cross-examination – credibility – CCTV footage – assertions of one party demonstrably false where CCTV footage available – flow on impact where other attendances also in contest

Family Law Act 1975 (Cth)

APPLICANT: Mr Kabir

RESPONDENT: Ms Kabir

INDEPENDENT CHILDREN’S LAWYER: Mr Robinson

FILE NUMBER: CAC 2337 of 2019

DATE DELIVERED: 10 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 & 7 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Cooper Family Law

COUNSEL FOR THE RESPONDENT: Dr Behrens

SOLICITOR FOR THE RESPONDENT: Jeanine Lloyd & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robinson McGuinness

Notation

1. I find, on the balance of probabilities that:

   a)The Father failed to attend for handover at the Coles Supermarket as necessitated for him to collect the children for changeover pursuant to the orders of Judge Hughes of 13 December 2019 on the following occasions:

   i)21 December 2019 at 4 pm;

   ii)28 December 2019 at 10 am;

   iii)18 January 2020 at 4 pm;

   iv)25 January 2020;

   v)1 February 2020;

   vi)7 February 2020;

   vii)8 February 2020;

   viii)12 February 2020;

   ix)15 February 2020;

   x)26 February 2020;

   xi)29 February 2020;

   xii)7 March 2020;

   xiii)14 March 2020;

   xiv)21 March 2020; and

   xv)28 March 2020.

   b)The Mother failed to attend for handover at the Coles Supermarket as necessitated for her to deliver the children for changeover pursuant to the orders of Judge Hughes of 13 December 2019 on the following occasions:

   i)4 January 2020 at 4 pm;

   ii)11 January 2020 at 10 am;

   iii)18 February 2020;

   iv)22 February 2020;

   v)4 April 2020;

   vi)11 April 2020;

   vii)18 Aril 2020; and

   viii)25 April 2020.

   c)That the Father made requests to spend further time with the children in relation to the following occasions to which the Mother did not respond to:

   i)31 December 2019;

   ii)2 January 2020;

   iii)7 January 2020

   iv)9 January 2020

   v)14 February 2020;

   vi)28 February 2020;

   vii)3 March 2020; and

   viii)6 March 2020.

   d)That the Mother failed to attend to deliver the children on 22 January 2020 by virtue of a mistake on her part as to the nominated day.

   e)The Mother did not attend with the children on 18 February 2020 after agreeing to do so.

Orders

1. The matter is adjourned for further directions to 10am on 18 August 2020.

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 Kabir & Kabir 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 2337 of 2019

Mr Kabir

Applicant

And

Ms Kabir

Respondent

REASONS FOR JUDGMENT

Introduction

1. Pursuant to orders made by Judge Hughes on 13 December 2019, the parties were to conduct handovers of their children, X (three years old) and Y (a little under two years old) in accordance with the following order:

   Unless otherwise agreed in writing the handover of the children shall occur at the front of the Coles Supermarket in B Shopping Centre.

2. Despite these orders, from 21 December 2019 the handovers did not occur.  In general terms, each party alleged that the other party failed to attend for the handover.

3. On 7 May 2020 orders were made to resolve this impasse in the following manner:

   I direct in accordance with Division 12A that the Court will determine the factual issues of the parties’ attendances outside the Coles supermarket for the purposes of handover of the children pursuant to the orders of Judge Hughes of 13 December 2019.

4. The parties were directed to cooperate in the issue of a subpoena directed to B Shopping Centre in order to obtain CCTV footage from the front of the Coles Supermarket, so as to “capture information to answer the question of who has attended and who has not attended for the handovers.”

5. Footage was obtained from B Shopping Centre in response to the subpoena, albeit not for all of the contested dates. 

6. The parties agreed facts as to who was or was not shown on the video footage, meaning that only a small portion of the footage required playing in court.  The small portion that was played demonstrated that, where a person is depicted on the footage outside the Coles supermarket, such person is readily able to be seen as outside the Coles supermarket, by a person observing the supermarket frontage.

7. The parties each gave oral evidence and were cross-examined in relation to the attendances, and then directed to provide written submissions in relation to such.

The orders for time with the Father

1. The orders made by Judge Hughes made provision for the children to spend time with the Father each weekend, alternating between 10 am Saturday to 4 pm Sunday, and 4 pm Saturday until 4 pm Sunday, along with unspecified other times for two hours on two other days each week if the Father is available.

The contested times

1. The contested times and the evidence in relation to them are set out below.

21 December 2019 4 pm

1. Pursuant to Order 3(b) of the Orders of 13 December 2019, time was to occur at 4 pm.  No footage was available.  Each party claimed to have attended, although the Mother had requested a change in venue. 

2. At [43] of the Mother’s Affidavit filed 24 June 2020, the Mother states that she attended at 4 pm and the Father was not there.

3. The Mother gave evidence that she attended the Police station by about 4.45 pm[1] when he did not attend, and that she called from there at 4.53 pm.[2]

   [1] Text message at p.94 of tender bundle

   [2] Tender bundle p.95

4. At [12] of the Father’s Affidavit, the Father gives evidence that he arrived at B Shopping Centre at around 3 pm.  At [15] of the Father’s Affidavit, he states that he received a phone call from the Mother at 4.54 pm and a call from the police at 5.05 pm.

5. The Father contended that the Mother was at Suburb F Coles, not B Shopping Centre Coles, and that she travelled to the Police Station from Suburb F to attend upon the police.  Given the Mother’s reliance on public transport this seems relatively unlikely, as opposed to the Mother’s version, which involved her travelling the short distance from B Shopping Centre to the Police station.  Taking into account additional matters later identified in this judgment relation to those occasions where there was footage, I prefer the Mother’s account and reject the Father’s account.

28 December 2019  

1. Pursuant to Order 3(a) of the Orders of 13 December 2019, changeover was to occur at 10 am.  No footage was available.  Each party claimed to have attended.  At [45] of the Mother’s Affidavit filed 24 June 2020, the Mother alleges that she was waiting at 10 am with the children and waited until 10.15 am.  The Mother provides a receipt from H Store (a nearby store in the Centre) at 10.45 am.

2. At [20] of the Father’s Affidavit, the Father states that he arrived at Coles in B Shopping Centre at around 9:45 am.  The Father sent text messages to the Mother asserting that he was in the vicinity of the Coles supermarket and left “around 11:10 am.”

3. The Mother’s account receives some support as to her proximity to the handover point at about the time she asserts that she was there.  Taking into account additional matters identified in relation to those occasions where there was footage, I prefer the Mother’s account and reject the Father’s account.

31 December 2019

1. Pursuant to Order 3(c) or 3(d) of the Orders of 13 December 2019, the Father sought that the children be provided for time.  The Mother made no response.

2 January 2020

1. Pursuant to Order 3(c) or 3(d) of the Orders of 13 December 2019, the Father sought that the children be provided for time.  The Mother made no response.

4 January 2020 at 4pm

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  No footage was available.  The parties disagreed about the time for the handover.  

2. At [30] of the Father’s Affidavit, he alleges he was present “outside of Coles” at 3.45 pm.

3. At [101] of the Mother’s Affidavit filed 27 March 2020, the Mother alleges that she was at B Shopping Centre until 4.30 pm.  

4. At [47] of the Mother’s affidavit filed 24 June 2020, the Mother corrects her previous evidence and deposes that she left B Shopping Centre at 2.30 pm.

5. It should be concluded that the Mother was not present for this handover, as she now concedes, and contrary to her earlier assertion.  There is no cogent reason to reject the Father’s account, where there is no evidence to counter his assertion as to attendance, despite issues with his credibility on this issue.

7 January 2020

1. Pursuant to Order 3(c) of the Orders made 13 December 2019, the Father sought that the children be provided for additional time.  The Mother made no response.  On 6 January 2020, there was a letter from the Father's lawyers to the Mother's, requesting time on both 7 and 9 January 2020.[3]

   [3] Tender bundle p.4

2. At [48] of the Mother’s Affidavit filed 24 June 2020, the Mother gives evidence as to why the children were not available on those dates.  The Mother was moving home on 7 January.

9 January 2020

1. Pursuant to Order 3(c) of the Orders made 13 December 2019, the Father sought that the children be provided for additional time.  The Mother made no response.  The Mother attended the hospital with the children on this day. [4]

   [4] Mother’s Affidavit [48]

11 January 2020 at 10 am

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 10 am.  At [50] of the Mother’s affidavit filed 24 June 2020, the Mother gives evidence that she made a mistake and was present at 4 pm, not 10 am.

2. It should be concluded that the Mother was not present for this handover, as she now concedes.  There is no cogent reason to reject the Father’s account, where there is no evidence to counter his assertion as to attendance, despite issues with his credibility on this issue.

18 January 2020 at 4 pm

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  No footage was available.  Each party claimed to have attended, yet there was no handover and no meeting between the parties.

2. The Mother attended with the children in the morning. 

3. At [51] of the Mother’s Affidavit, the Mother alleges that, having attempted to negotiate an earlier time, she was outside Coles at 3.44 pm and was there until just after 4 pm.  She annexes text messages and photographs to corroborate this.

4. The Mother supplied evidence that she made a purchase at Coles at 3.39 pm.  She sent the Father messages at 3.44 pm and 4.04 pm.  Although the Father sent her messages at 4.05 pm and 4.07 pm they were not received by her until 5.15 pm.

5. The Father suggested that this was due to a deliberate strategy on the part of the Mother to turn her phone off so as not to receive such communications.

6. At [44] of the Father’s Affidavit, the Father alleges that he “arrived at the shopping centre at 4 pm” and “left at 4:45 pm”.

7. The Mother’s account receives some support as to her proximity to the handover point at about the time she asserts that she was there.  Taking into account additional matters identified in relation to those occasions where there was footage, I prefer the Mother’s account and reject the Father’s account.

22 January 2020

1. Pursuant to Order 3(c) or (d) of the Orders made 13 December 2019, the Father says he requested time by way of text message at 9.26 pm on 21 January 2020,[5] for time to occur the following day.  The Mother received the message at 7.57 am the next day, and apparently took the reference to tomorrow to be the following day, not that day.

   [5] Father’s Affidavit [46] filed 23 April 2020

2. The text messages annexed to the Mother’s Affidavit show that she did not receive that request until the morning of 22 January.[6]

   [6]Mother’s Affidavit p.134

3. The Mother says that she attended on 23 January 2020, and produced receipts showing that she was in the vicinity at the time.[7]

   [7]Mother’s Affidavit p.131

4. There is no indication that the Father attended on this occasion, but there was also no apparent meeting of the minds as to which day the time would occur.

25 January 2020

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 10 am.  There was no CCTV footage.

2. There is a text exchange between the parties between 9.59 am and 11.28 am, each asserting that they are outside Coles.[8]

   [8] Tender bundle p.189

3. At [54] of the Mother’s Affidavit filed 24 June 2020, the Mother alleges that she attended at 10 am, waited until 10.15 am, then went into Coles.  She annexes text messages, photographs and a Coles receipt at 10.29 am.

4. As noted by the Father, there is a conflict between the Mother’s description of her movements and her representation in the messages that she sent.  She says that she waited until 10.15 am then entered Coles.  Her text message at 10.20 am represented that she was outside Coles.  The receipt from Coles is timed at 10.29 am.  The Father submits that it would not be possible to obtain four items between entering Coles at 10.20 am and making the purchase at 10.29 am.

5. I am unable to conclude that this is the case, or that the reference by the Mother to entry at 10.15 am is anything other than an error, given the text message at 10.20 am.

6. Further, the Father does not depose as to his movements, or as to his attendance on this occasion.

7. Taking into account additional matters identified in relation to those occasions where there was footage, the Mother’s account should be accepted.  It should be concluded that the Father did not attend.

1 February 2020

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  There was no CCTV footage.

2. Both parties agree that the Father cancelled contact on this occasion.[9]  The Mother says that she attended B Shopping Centre early because of the heat, and did not get the message until after she was there.  She sent a message asking him to confirm whether he was coming.

   [9]Mother’s Affidavit [55] and Father’s Affidavit [52].

7 February 2020 

1. Pursuant to Order 3(c) or (d) of the Orders made 13 December 2019, at [55] of the Father’s Affidavit, the Father says that he requested additional time with the children.  There was no CCTV footage.

2. There was a disagreement about the time when this should occur.  The Father says the Mother proposed to bring them at 6 pm.  He says he waited for the children on 7 February at 6 pm.[10]

   [10]Tender bundle 17-18.

3. The Mother did not provide evidence of this occasion in her affidavit, although at page 81 the Mother annexed notes that she had made about the Father’s non-attendance and her attendance.  The Mother was asked about this date under cross-examination, and acknowledged that she did not give evidence about it in her Affidavit, but asserted that she did attend at 6 pm on 7 February. 

4. Taking into account additional matters identified in relation to those occasions where there was footage, I prefer the Mother’s account under cross examination and reject the Father’s account.

8 February 2020 

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was due to occur at 10 am.  There is no CCTV footage.  The Mother’s evidence is that she was at changeover at 9.45 am.  She annexes a receipt from a cafe (which she gave evidence to show that it is just outside Coles) at 10.03 am.[11]  She also annexes a receipt from H Store at 10:41 am.  Exhibit K1 is the Google map reference for 8 February 2020 which shows her at B Shopping Centre at 10.01 am.

   [11]tender bundle 150 .

2. The Mother relies on [8] of the Affidavit of Mr D filed 23 April 2020 which supports the Mother’s account.

3. At [58] and [59] of the Father’s Affidavit, the Father asserts that he was present for the handover, and that there was a message exchange about this:

   She sent a further message at 10:01am, which stated “are you coming or not?”. I searched for Ms Kabir and the children outside of Coles but I could not see them anywhere.

4. The Mother’s account is supported by Mr D, and the receipt from a cafe.  If the Father had searched as he described, there can be little doubt he would have found the Mother.

5. I prefer the Mother’s evidence in relation to this attendance and reject the Father’s account.

12 February 2020 

1. Pursuant to Order 3(c) or (d), the Mother alleges that the Father sought additional requested time.  The time was to occur at 5 pm.  There is no CCTV footage.

2. At [57] of the Mother’s Affidavit filed 24 June 2020, the Mother gives evidence that she was present outside Coles from 4.52 pm and the Father was not.

3. At [62] of the Father’s Affidavit, he alleges that he “arrived at B Shopping Centre at 4:12 pm. I sent Ms Kabir a text message at 4:20 pm and advised Ms Kabir that I had arrived and that I was waiting for the children in front of Coles whenever she arrived.”  The Father annexes a parking ticket and receipt from a cafe; however, these are 45 minutes prior to the scheduled changeover.[12]  

   [12]Father’s Affidavit [62]

4. Taking into account additional matters identified in relation to those occasions where there was footage, I prefer the Mother’s account and reject the Father’s account.

14 February 2020 

1. Pursuant to Order 3(c) or (d) made 13 December 2019, the Father sought additional requested time.  There is no CCTV footage.  There were text messages exchanged between the parties as to when that time should occur.  At [58] of the Mother’s Affidavit, the Mother alleges that she did not receive the Father’s text message confirming 6 pm until 6.15 pm.  The Father’s text message shows it being sent at 1.57 pm and the Mother’s shows it being received at 6.15 pm.[13]

   [13] Tender bundle p.23 and 24

2. It was suggested to the Mother that she turned her phone off so as not to receive messages sent by the Father.  The Mother denied that she either did this, or that it would be effective in delaying the received time.

3. In any event the Mother did not attend at 6 pm, and had not agreed to.

15 February 2020

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  CCTV footage is available for this occasion, and the agreed facts are that the Mother was visible in front of Coles from 4.01 pm, sits in the seating area in front of Coles until 4.09 pm, goes into Coles, then leaves Coles again at 4.25 pm.  The Father is not visible.

2. At [32] of the Mother’s Affidavit filed 24 June 2020, she states that she reached B Shopping Centre at 3.45 pm, sending a text message at 3.53 pm.[14]

   [14] Mother’s Affidavit filed 24 June 2020 p.46

3. The Father asserts that he was in the vicinity, seated outside a food shop for the whole of this time.  Under cross-examination, he gave evidence that he could see the front of Coles from there, and was looking for the Mother.

4. This cannot be the case.  The Mother is demonstrably present.  The Father is not seen.  If he was present as he asserts, he could not have missed the Mother and the children.  The inability to observe him on the footage, the Mother and children being in plain sight, and his asserted failure to see them, points to a conclusion, on the balance of probabilities that the Father was not present for the handover.

1. Under these circumstances, the Father’s assertion that he was present, contrary to the evidence, casts considerable doubt on his credibility in relation to his attendances at other times.

18 February 2020

1. Pursuant to Order 3(c) of the Orders made 13 December 2019, the Father requested additional time.  On 17 February 2020 at 5.04 pm, the Father requested of the Mother that he see the children at 6.30 pm the following day.  The Mother agreed.  The exchange is seen at page 25 of the tender bundle.

2. The Mother agrees that she did not attend.  She asserts that she misunderstood the Father’s request, believing it to be a request for facetime.  The Mother did not give this explanation when the Father messaged her as to the children not being at the Coles supermarket.  The Father’s request to see the children carried a clear implication that it was a face to face visit that he had requested.  The Mother’s explanation should not be accepted.

22 February 2020

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 10am.  There was CCTV footage available.  The Agreed Facts are that the Father was present in the seating area in front of Coles from 9.47 am to 10.21 am and the Mother was not visible.

2. At [34] of the Mother’s Affidavit, the Mother states that she was not present as she was unwell.

3. It should be concluded that the Mother failed to attend on this occasion.

26 February 2020

1. Pursuant to Order 3(c) or (d) of the Orders made 13 December 2019, the Father requested additional time.  No CCTV footage is available.  The parties agree that changeover was to occur at 6.30 pm.  At [59] of the Mother’s Affidavit, the Mother gives evidence that she attended but the Father did not.  The Affidavit of Mr D, filed 23 April 2020, [9] refers to the attendance, which is also supported by a receipt from Coles at 6.21 pm, shortly before handover time.

2. Given the above matters, and the additional consideration of the proven unreliability of the Father’s evidence on those occasions where there is footage, it should be concluded that the Mother attended and the Father did not.

28 February 2020

1. Pursuant to Order 3(c) of the Orders made 13 December 2019, the Father requested time on 27 February 2020 for additional time with the children commencing 11.30 am.  The Mother did not respond to the request.

29 February 2020  

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  There is CCTV footage available.  The Agreed facts are that the Mother entered the seating area in front of Coles at 3.53 pm.  While she moves out of the vision of the CCTV at 4.03 pm, at 4.04 pm she re-enters on the left-hand side, and is in front of Coles from 4.05 pm until 4.11 pm when she walks into Coles.  The Google map references which are in Exhibit K1 corroborate that she was at B Shopping Centre at 4.10 pm on this date.  The Father is not visible. 

2. At [81] of the Father’s Affidavit, the Father states that he arrived at the B Shopping Centre at 3:07 pm.  The Father tenders evidence of a parking ticket at 3.07 pm, a photo of him at an eatery near to the handover point, and a receipt at 3.16 pm.[15]  At [82] of the Father’s Affidavit he states that “I responded and stated that I was at the handover location pursuant to the court orders and that I had not been able to see the children.”

   [15] Father’s Affidavit p.85  

3. Again this cannot be the case.  The Mother is demonstrably present.  The Father is not seen.  If he was present as he asserts, he could not have missed the Mother and the children.  The inability to observe him on the footage, the Mother and children being in plain sight, and his asserted failure to see them, points to a conclusion, on the balance of probabilities that the Father was not present for the handover, despite the evidence he presents to demonstrate that he was there.

4. As well as confirming that there should be concerns about the Father’s credibility in relation to his attendances, this incident also means that caution should be exercised before relying on other evidence led by the Father to establish his presence at the time of handover.

3 March and 6 March 2020

1. The Father requested time in relation to these days.  The Mother failed to respond.

7 March 2020 

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 10 am.  There is no CCTV footage available.  At [60] of the Mother’s Affidavit filed 24 June 2020, the Mother alleges that she attended at 10 am outside Coles and the Father did not attend.  There was a text exchange about where each was.

2. The parties exchanged text messages, with the Mother asserting that she was at the changeover point with the children at 9.58 am, and again (implicitly) at 10.09 am, 10.15 am and 10.20 am.  At 10.08 am the Father messaged the Mother asserting that he was at the changeover point.

3. The Mother annexes two receipts at page 215 of the tender bundle.  One of the receipts is for another day, and for another shop that the Mother denied being at.  The Father says this calls into doubt the receipts used by the Mother, and raises the possibility that she has access to receipts that are not hers.  The other receipt is from Coles at 10.13 am.

4. The Mother also produces photographs.  The Mother gives evidence that she asked the Father to send her his location.  When cross-examined about this, the Father gave evidence that he believed he could not do so because of the Family Violence Order.   

5. Despite the issue with the stray receipt, the Coles receipt indicates that the Mother was in the vicinity of Coles at the time.  The receipt is not suggestive that the Mother was inside Coles at 10 am.

6. Given the above matters, and the additional consideration of the proven unreliability of the Father’s evidence on those occasions where there is footage, it should be concluded that the Mother attended and the Father did not.

14 March 2020 

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  There is no CCTV footage available.  At [60] of the Mother’s Affidavit filed 24 June 2020, the Mother states that she was outside Coles at 4 pm and that the Father did not show up.  The Mother tenders two receipts – one at H Store at 3.40 pm and one for Coles at 4.05 pm.[16]

   [16] Tender bundle p.220

2. There is a text exchange between the parties, the Mother asserting at 3.55 pm and again (implicitly) at 4.03 pm and 4.07 pm that she was at the handover point.  The Father texts at 4.02 pm that he is at the handover point.

3. At [91] of the Father’s Affidavit filed 23 April 2020, the Father alleges that he was at B Shopping Centre from around 3 pm.

4. The Father points to the inconsistency between the Mother’s receipt at 4.05 pm and her message at 4.03 pm.  It should be concluded that contrary to the Mother’s assertion, she was not at the handover point at 4.03 pm, but was inside the Coles supermarket.  Her claim, at that time, not to be able to see the Father anywhere was disingenuous.

5. However, if the Father was in fact present when he asserts, at 4.10 pm, it is again difficult to see how he could have missed the Mother, who had completed her purchase at 4.05 pm.

6. It should be concluded, again in the light of the Father’s unreliability in relation to his attendances, that although the Mother was not in position at 4 pm, she was there shortly thereafter and the Father was not.

21 March 2020 

1. Pursuant to Order 3(b) of the Orders made 13 December 2019, changeover was to occur at 10 am.  There is no CCTV footage available.

2. At [62] of the Mother’s Affidavit, the Mother gave evidence that she was there and the Father was not.  The Mother annexes evidence and the Google map for that date which is in Exhibit K1, and corroborates that she was at B Shopping Centre at 10.09 am.  Both parties exchanged messages claiming to be at the handover point, and at 10.09 am and 10.11 am respectively, sent pictures to each other purporting to evidence where they are at that point.  The Mother also sent a location report from Google.[17]

   [17] Tender bundle p.226-227

3. The Father does not give evidence on this incident in his Affidavit.

4. Again, considering the Father’s proven unreliability on these matters, the Mother’s evidence should be preferred, and it should be concluded that while she was present, the Father was not.

28 March 2020 

1. Pursuant to Order 3(a) of the Orders made 13 December 2019, changeover was to occur at 4 pm.  CCTV footage is available. The agreed facts are that the Mother enters the seating area in front of Coles at 3.56 pm and enters Coles at 3.58 pm.  She is not seen again for the balance of the footage, ending at 4.30 pm.  The Father is not visible.  At [37] of the Mother’s Affidavit filed 24 June 2020, she alleged that she turned up, checked if the Father was there, and then went quickly into Coles, and on her evidence checked for him from inside Coles.

2. The Mother sent a number of messages at 4.09 pm and 4.17 pm, suggestive that she was at the handover point, when she was inside Coles.  Contrary to her claims that she exited Coles to send those messages, she did not.

3. The Mother’s claims to be at the handover point at the handover time and following are disingenuous.  She was there shortly before, but otherwise inside Coles.

4. However, neither should it be concluded that the Father was present, particularly in the absence of evidence about this handover in his affidavit.  In cross-examination, the Father stated that his Affidavit was too long, and he decided not to include it.

5. It should be concluded that the Mother was nearby the handover point, but not that the Father was.

4, 11, 18 and 25 April 2020 (CCTV footage available)

1. Pursuant to Order 3 of the Orders made 13 December 2019, changeover was to occur either at 10 am or 4 pm.  The Mother’s evidence is that she did not attend changeover on those occasions, having attempted to negotiate an alternative arrangement with the Father.

2. The Agreed Facts are that the Father attended on 4 and 11 April, although on 11 April not until 4.12 pm.  In relation to 18 April 2020 neither party is visible.

Other credibility issues

1. In considering these matters it should not be thought that the matters raised in relation to the Mother’s general credibility have not been considered.  The key criticism raised by the Father was in relation to the Mother’s claim that she was strangled by the Father on 17 … 2018, causing her to undertake an emergency caesarean.  The Father asserts that this claim has been disproved by virtue of records produced from the relevant hospital in relation to that caesarean, along with travel records.

2. It is true that when confronted with the hospital records, the Mother amended her allegation as to the date of assault alleged against the Father from 17 … 2018 to 16 … 2018, it having been shown that the Father was travelling on 17 … 2018.  However, the documentary evidence, supplemented by evidence led in re-examination, established that there were two hospital attendances, on 16 and 18 ….

3. The 16 … attendance records, with claims by the Mother of heavy pains, corresponded with the amended date the Mother gave for the assault that she had said corresponded with her hospital attendance.

4. Although on some records the subsequent caesarean on 18 … 2018 was described as elective (contradicting the Mother’s claim that it was an emergency caused by the Father, resulting in a uterine rupture), on other records produced in re-examination, the procedure was described as “repeat emergency caesarean” and with a “scar dehiscence present, membranes were bulging through dehiscence.”

5. Accordingly, at this stage, the attack on the Mother’s credibility based on inconsistency with hospital records, was not made good.

Conclusion

1. Factual findings are made as identified above in relation to the disputed handovers at Coles Supermarket.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 August 2020

Associate: 

Date:  10 August 2020