Magomedov & Borchard
[2024] FedCFamC1F 507
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magomedov & Borchard [2024] FedCFamC1F 507
File number(s): NCC 3232 of 2018 Judgment of: SMITH J Date of judgment: 30 July 2024 Catchwords: FAMILY LAW – CHILDREN – Parenting Orders – Best interest of the child – Where the mother alleges persistent family violence perpetrated by father – Where the mother alleges the father had a significant history of family violence – Where the mother alleges the father admitted to committing family violence during counselling sessions – Where the father denies the mother’s allegations of family violence against the mother or prior partners – Where the father alleges the mother made him attend counselling to create evidence of family violence and denies making concession – Where clinical psychologist counsellor’s contemporaneous notes and oral evidence confirm father’s concessions – Where the father alleges the mother fabricated the history of family violence for visa purposes – Where there is significant contemporaneous evidence of complaint – Where the father’s alcohol abuse was a key issue at trial – Where the mother’s mental health was a key issue at trial – Where the mother’s mental health impacted her ability to comply with Court Orders.
FAMILY LAW – PARENTING - Findings – Where both parties credibility was in question – Where both parties evidence to be treated with caution – Where consideration is given to objective contemporaneous evidence – Where the father engaged in a persistent pattern of family violence during and post relationship – Where the father engaged in alcohol abuse – Where the father made concessions to a clinical psychologist – Where the father denied issues of alcohol use and family violence in cross examination – Where the mother’s mental health was exacerbated by the father’s behaviours – Where the father has limited prospect of change to behaviours which he denies – Where the father poses an unacceptable risk of physical and psychological harm to the child.
FAMILY LAW – PARENTING – Orders – Mother to have sole parental responsibility – Child to live with mother – Child to spend no time and have no communication with father – ancillary orders.
Legislation: Evidence Act 1995 (Cth) Pts 3.10, 4.1, ss 128, 140
Family Law Act 1975 (Cth) Pts II, VII, XV, ss 10C, 10E, 60CA, 60CC, 65AA, 117.
Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Cases cited: B & B (1993) FLC 92-357
CDJ v VAJ (1998) 197 CLR 172
Isles & Nelissen [2022] FedCFamC1A 97
Russell v Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 387 Date of hearing: 14-16 June 2022, 22-24 November 2022, 13-14 July 2023 Place: Sydney (14-16 June 2022), Newcastle (22-24 November 2022, 13-14 July 2023) by Microsoft Teams Counsel for the Applicant: Mr Mooney Solicitor for the Applicant: Manning Valley Legal and Conveyancing Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Banga Legal Counsel for the Independent Children's Lawyer: Mr Guyder Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer (14-16 June 2022, 22-24 November 2022), Foat Roberts Lawyers (13-14 July 2023) ORDERS
NCC 3232 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAGOMEDOV
Applicant
AND: MS BORCHARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS THAT:
1.Ms Borchard (born 1980) (“the mother”) is to have sole parental responsibility for making decisions about the major long term issues concerning X (born 2018) (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
2.The child shall live with the mother.
3.The child shall spend no time and have no communication with Mr Magomedov (born 1978) (“the father”).
4.The mother have sole parental responsibility in respect of the child in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
5.The Mother be authorised to apply and forthwith obtain an Australian passport for the child so as to enable her to travel in and out of the Commonwealth of Australia.
6.The consent of the father to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
7.The child be permitted to depart the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
8.A copy of these Orders, but not reasons, may be given to any school or similar organisation attended upon by the child from time to time.
9.A copy of these Orders and Reasons for Judgment may be given to Dr B, and to any medical / psychological or allied health practice attended by the mother or the child from time to time.
10.A copy of these Orders and Reasons for Judgment be provided to Court Children’s Service and the Court Child Expert / Family Report Writer.
11.If any party, including the Independent Childrens Lawyer, seeks to make an application in respect of costs they are to file an Application in accordance with the Rules, otherwise each party shall bear their own costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Magomedov & Borchard has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These are parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (‘the Act’) in relation to the subject child, X (born 2018) aged 6.
The applicant father is Mr Magomedov (born 1978) aged 46. He was born in Australia. He is re-partnered with Ms C aged 43. They have a child D (born 2022) aged 2. Ms C has two other children, E (born 2011) aged 13 and F (born 2013) aged 11. The father and Ms C do not cohabit but spend significant time together.
The respondent mother is Ms Borchard (born 1980) aged 43. She was born in Country G. She is not re-partnered.
The mother met and married her first husband in Country H in 2001 and moved to live in Country J. They divorced in 2009. She dated a man from another country for 7-8 years. They separated in 2014 as they were unable to have children.[1]
[1] Mother’s trial affidavit filed 20 May 2021 at [3], [14], [21].
The mother came to Australia on holiday in early 2016. The parties matched on a dating application in mid-2016, after she returned to Country J. The mother’s dating profile listed her location as Sydney. The father became aware she was in Country J. The parties had an online relationship for three months.
The mother again travelled to Australia on a visitor visa. The parties met in Brisbane in late 2016. They had a romantic time, including a holiday to another region. The mother says the father professed his love for her and urged her to move to Australia. She returned to Country J in late 2016. The relationship continued online.[2]
[2] Father’s trial affidavit filed 27 April 2021 at [6]-[7]; Mother’s trial affidavit filed 20 May 2021 at [23]-[26], [29].
The mother returned to Australia in late 2016 on a 3-month visitor visa. She immediately commenced cohabitation with the father in Sydney, NSW.[3]
[3] Father’s trial affidavit filed 27 April 2021 at [10]; Mother’s trial affidavit filed 20 May 2021 at [30]-[33].
The parties were engaged in early 2017, just over 30 days after the mother returned to Australia. The mother fell pregnant in early 2017. She applied for a student visa for a tertiary institution in early 2017. She miscarried in early 2017. The parties married in Australia shortly after. In mid-2017 the parties submitted an application for a spousal visa.[4] The mother fell pregnant again late in 2017. X was born in 2018. The parties separated on 2 August 2018.[5]
[4] Mother’s trial affidavit filed 20 May 2021 at [51]; Father’s trial affidavit filed 27 April 2021 at [25]; Transcript 14 June 2022, p.62 lines 44-45.
[5] Father’s trial affidavit filed 27 April 2021 at [11]-[12], [20]; Mother’s trial affidavit filed 20 May 2021 at [5]-[6]; Family Report dated 16 November 2020 at [8].
The mother alleges the father engaged in persistent family violence, particularly when drinking due to alcohol abuse. She says she sought counselling and tried to work with the father to address his alcohol and anger issues, to no avail. Her case is that ultimately his violent and controlling behaviours led to their separation. The mother’s case is that the father poses an unacceptable risk of harm to the child.
The father denies the mother’s allegations of family violence. He also denies engaging in family violence with prior partners. The father alleges the mother fabricated the history of family violence to obtain a domestic violence visa to allow her to migrate to Australia in circumstances where her partner visa had been denied. His case is that her high anxiety relates to childhood trauma, and not to any conduct by him.
The major factual issues identified by the parties’ when speaking with the Family Consultant (“the expert”) on 7 August 2019 as recorded in the Child Dispute Conference Memorandum (“CDC”) were:[6]
[6] CDC Memorandum to Court pp.1-2.
…
•The mother alleges that the father was physically violent on a number of occasions pushing her, had punched her on the leg, purposefully elbowed her [injury] and would pinch her on the leg to stop her talking. She reported intimidating behaviour such as kicking things, throwing chairs and making threats to her. For example, she reports that on one occasion the father held a knife to her while she was pregnant and on another occasion she asked the father was something in the water at a marina and the father responded “it’s the remains of a pregnant wife who pissed off her husband”. The mother describes other controlling behaviour such as not allowing her to communicate with friends, not taking the mother to seek medical care for 3 days after miscarrying and keeping the mother isolated on his parents’ property. The father denies all allegations of family violence and alleges that the mother has constructed the allegations to assist her with a visa.
…
•The mother alleges that the father has a significant criminal history in relation to domestic violence, including making threats of suicide and homicide at the end of one relationship and smashing another previous partner’s windscreen. The father denies any previous police involvement with ex-partners, stating that there was one minor issue related to clothing but no charges were laid.
•The mother stated that the father had enrolled in a behaviour change course but did not attend. She also stated that he admitted family violence in a couples counselling session. The father alleges that the mother made him attend these things to construct evidence of family violence. The father stated that he has recently attended a "respectful man" course through [K Family Services] of his own volition.
•The mother raised concerns that the paternal grandmother has enabled the father to perpetrate family violence by making excuses for the father and ignoring concerns raised by the mother.
…
•The mother alleges that the father would consume up to 20 standards drinks daily. The father denies this allegation…
(As per the original)
The mother’s and father’s positions remained relatively consistent through to Trial.
In the subsequent Family Report the expert identified the key issues as: [7]
(1)Possible harm from family violence perpetrated by the father,
(2)Alcohol abuse by the father; and,
(3)The mother’s mental health.
[7] Family Report dated 16 November 2020 at [120] and [128].
These remained key issues at trial.
For reasons set out below, I find that the father was a witness of little credit who was willing to lie on oath when it suited his case and, consequently, whose testimony must be treated with great caution.
I also find that the mother was a witness of little credit who was also willing to lie on oath, and possibly to fabricate evidence, when it suited her case. Therefore, her testimony must similarly be treated with great caution.
Given the dishonesty displayed by both parties, I have been required to consider such relatively objective contemporaneously evidence as is available and to weigh the inherent probability of certain events occurring in the context of the totality of the evidence.
Having undertaken that process, as best I can, for reasons set out elsewhere, I am comfortably satisfied to the relevant evidentiary standard,[8] that the mother’s allegations of alcohol abuse and family violence by the father are substantially true. I find that the father engaged in a persistent pattern of family violence, including coercive control, against the mother throughout the relationship, and that this continued post relationship, including through the father attempting to bring about the mother’s removal from Australia so he could retain the child without contest post separation.
[8] Evidence Act 1995 (Cth) s 140(2).
I also find that it is likely the father’s alcohol abuse and family violence towards the mother were a continuation of long-standing patterns of behaviour by the father in relation to former domestic partners.
In view of his complete denial of his behaviours I find that there is limited, if any, prospect of a long-term change to his behaviours.
Accordingly, I find that the father poses an unacceptable risk of physical and psychological harm to the child of spending any time or having any communication with him.
The orders that must follow, and which I enter, are that the child live with the mother, who will have sole parental responsibility for the child, and that the child shall spend no time and have no communication with the father.
SELECTED BACKGROUND
The mother alleges a serious incident of family violence occurred in mid-2018, involving a tool. The mother complained to police and a few days later the father was arrested and charged with an offence. An interim AVO was made for the protection of the mother.[9] The parties then separated.
[9] Mother’s trial affidavit filed 20 May 2021 at [121]-[124], Annexure O.
Following this, the father did not see the child until 28 September 2018.[10]
[10] Transcript 15 June 2022, p.127 lines 11-14.
On 6 August 2018, the father wrote to Commonwealth migration authorities revoking his support for the mother’s visa application, and advising the child would be safe in his care.[11]
[11] Exhibit ICL 4.
On 16 October 2018, the father commenced these proceedings seeking orders transitioning the child to live with him based on developmental milestones and seeking expedition prior to any deportation of the mother from Australia, with alternative orders should the mother secure permanent residency.
On 22 November 2018, the mother in her Response sought orders for sole parental responsibility, live with, and no time orders, as well as orders for the removal of the child’s middle name, and for international travel. That day the Court made interim live with orders for the mother, with a restraint on international travel and associated Airport Watch List order, and ordered the father to undergo Carbohydrate Deficient Transferrin (‘CDT’) testing for alcohol use.
The father’s criminal matter first came before a Court in mid-2018 and the criminal trial at Town DD Local Court ran in late 2018, early 2019 and concluded mid-2019 with a finding of not guilty.[12]
[12] Exhibit B, MFI 5 p.58; Exhibit 4 p.65 (Transcript Town DD Local Court dated mid-2019); ICL 1, MFI 9 p.52.
On 21 June 2019, there were consent interim orders for the child to spend time with the father through a supervised contact centre and for hair follicle testing for the father.
On 7 August 2019, a Child Dispute Conference occurred, and a Memorandum was prepared. On 21 August 2019, an Independent Children’s Lawyer was appointed and further orders for the father to undergo CDT testing were made.
On 4 November 2019, following a contested interim hearing on 24 October 2019, the Court made interim orders for the child to spend unsupervised time with the father progressing to 10.00 am to 4.00 pm each Friday and Sunday thereafter, with further orders for hair follicle testing and a restraint on the father from drinking alcohol for 24 hours prior to, or during time with the child. At the time of the Family Report interviews on 30 September 2020 the child had generally been spending time that time with the father as ordered.[13]
[13] Family Report dated 16 November 2020 at [3], [9].
On 10 March 2021, the mother filed an Application to suspend unsupervised time, seeking supervision. On 8 April 2021 she withdrew that Application, citing cost issues.
On 9 April 2021, the father filed his Amended Initiating Application for, broadly, equal shared parental responsibility and the child to transition to living with him and spending time with the mother.
On 24 May 2021, further interim orders were made for the child to spend time with the father as agreed or each Friday and Saturday from 9.00 am to 5.00 pm. The orders provided for the progression to overnight time, which was scheduled to commence 23 July 2021, with the child to spend from 9.00 am Friday until 5.00 pm Saturday each week with the father. The proceedings were transferred to the then Family Court of Australia.
In late 2021, the parties were granted a Divorce.
On 8 December 2021, orders were made for this matter to be set down for a five-day final hearing commencing 14 June 2022.
On 1 April 2022, the mother withheld the child from the father in contravention of the orders of 24 May 2021. She said this was done for the child’s safety and emotional wellbeing.[14]
[14] Mother’s affidavit filed 25 May 2022 at [10]-[11].
Residences - background
The parties moved a number of times during their short relationship. At the commencement of co-habitation, they lived at the father’s house in Suburb L NSW. From early to mid-2018, after the sale of the Suburb L property, they lived with the paternal grandparents at their property in Region M, in regional NSW.
From mid-2018, the father had a lease at Town N NSW, 20 kilometres from Region M.
From early 2019 the father lived in his sister’s investment property at Town O.
From mid-2020 to date he has lived in his own property at Suburb P.[15]
[15] Father’s trial affidavit filed 27 April 2021 at [13]-[17].
Upon separation, the mother stayed in a hotel for one night and then in a refuge for nine weeks. She was provided support accommodation in City Q for a year, before obtaining private accommodation.[16] The mother expressed a fear of the father finding out where she lives,[17] and maintained at trial that she did not want to disclose her address to the court.[18]
TRIAL AND EVIDENCE
[16] Mother’s trial affidavit filed 20 May 2021 at [142].
[17] Mother’s affidavit filed 25 May 2022 at [39].
[18] Transcript 16 June 2022, p.255 lines 30-41.
First sitting 14-16 June 2022
This matter was listed for a five-day final hearing commencing 14 June 2022. All parties were legally represented, including by counsel.
The father provided a Court Book in two parts; part 1 of 216 pdf pages (MFI 1) and part 2 of 29 pdf pages (MFI 2). The father relied upon a Submission Bundle and Case Outline dated 13 June 2022 (MFI 6).
The father relied upon the following documents at final hearing:
(1)Amended Initiating Application filed 9 April 2021, noting his proposed minute of order was amended and annexed to his case outline;
(2)Notice of Risk filed 16 October 2018;
(3)Trial Affidavit filed 27 April 2021;
(4)Updating Affidavit filed 24 May 2022;
(5)Affidavit of the father’s current partner Ms C, filed 24 May 2022;
(6)Affidavit of the paternal grandmother Ms R, filed 26 April 2021;
(7)Affidavit of the paternal grandfather Mr S, filed 26 April 2021;
(8)Affidavit of a friend Mr T, filed 23 April 2021;
(9)Affidavit of a friend Ms U, filed 23 April 2021.
The mother provided a Court Book in two parts; part 1 of 401 pdf pages (MFI 3) and part 2 of 100 pdf landscape pages (MFI 4), and a further tender bundle of 344 pdf pages (MFI 5). The mother relied upon a Submissions Bundle and Case Outline, dated 10 June 2022 (MFI 7).
The mother relied upon the following documents at final hearing:
(1)Response filed 22 November 2018;
(2)Notice of Risk filed 22 November 2018;
(3)Trial Affidavit filed 20 May 2021;
(4)Updating Affidavit filed 25 May 2022;
(5)Affidavit of the mother’s treating clinical psychologist Dr B filed 24 May 2021;
(6)Affidavit of the mother’s Family Support Worker Ms V, filed 20 May 2021;
(7)Affidavit of a friend Ms W, filed 20 May 2021;
(8)Affidavit of a friend Ms Y, filed 20 May 2021.
The ICL’s Court Book was in two parts; part 1 of 141 pdf pages (MFI 9) and part 2 of 141 pdf pages (MFI 10).
The ICL relied upon the following documents at final hearing:
(1)Case Outline of the Independent Children’s Lawyer dated 20 May 2021
(2)The Child Dispute Conference Memorandum prepared by Ms Z on 7 August 2019;
(3)Family Report prepared by Ms Z on 16 November 2020,
(4)Tender bundle, to the extent to which documents were specifically tendered.
The Child Dispute Conference Memorandum and Family Report were not entered into evidence pending the outcome of inquiries that were to be made by counsel for the ICL. Consequently, they were not given exhibit markings at that time. Ultimately no issue was taken. The expert was called and adopted these reports. She was cross examined on them. They were not given exhibit markings at that time due to an oversight. The reports were treated as the expert’s oral evidence by all parties and the Court throughout the trial and in submissions. Having been not been objected to, and then adopted by the expert, I treat these reports as being the expert’s evidence in chief despite the formal absence of exhibit markings.
The father, Ms C, the paternal grandmother, the paternal grandfather, Mr T, Ms U, the mother, Ms V, Dr B, and the expert, were required for cross examination.
Ms W and Ms Y were not required for cross-examination.[19] Ms W is a friend of the mother. She resides in Country J. Her short affidavit provided examples of the father being annoyed with the mother during video calls, said the mother ceased calling her from home consistent with social isolation of the mother, and that the mother told her things about the father consistent with the mother’s case. Ms Y is an employee of a childcare centre who had known the mother and child for 12 months. Her one-page affidavit attests to the mother’s prioritising and loving the child. In the context of the proceedings, and the other available evidence, and with no disrespect to Ms W or Ms Y, I give no weight to their evidence.
[19] Transcript 14 June 2022, p.9 lines 45–46; Transcript 24 November 2022, p.450 lines 9–13.
The matter ran for three days but was adjourned part-heard due to counsel falling ill. To meet all counsels’ convenience the matter was stood over to 22 November 2022 for a further three days.
Second sitting 22–24 November 2022
The matter resumed on 22 November 2022. The mother failed to appear on the first day. She attended on 23 November 2022. She provided the court with an unsealed, unsworn affidavit deposing to the circumstances she says prevented her from attending the first day of the resumed final hearing (Exhibit M). The mother adopted that as her evidence. She said the child was ill.[20]
[20] Exhibit M, mother’s unsworn/unfiled affidavit dated 23 November 2022 at [5]–[8].
The parties relied on the following additional material:
(1)Affidavit of mother unsworn and unfiled dated 23 November 2022 (Exhibit M).[21]
(2)ICL supplementary Tender Bundle of 29 pdf pages (MFI 3) (tendered as Exhibit 3).
[21] The mother adopted the affidavit in oral evidence, and it was admitted as Exhibit M.
The matter did not conclude and was again adjourned, part-heard, until 6 March 2023 to accommodate the mutually available dates of all Counsel. Due to Judicial illness on 6 March 2023 the trial was unable to proceed and adjourned for further hearing, on 13 and 14 July 2023, when the trial concluded.
Third sitting 13-14 July 2023
The matter resumed on 13 July 2023.
The parties relied on the following additional material:
(1)An email containing the ICL’s position (MFI 15);
(2)ICL’s proposed minute (MFI 16);
(3)Proposed minute of the applicant father (MFI 17);
(4)Alternate orders sought by the mother (MFI 18).
Transcript
As the evidence was heard across three separate sittings over the course of a year, I have taken out the transcript.
THE FATHER’S ALLEGED PRE-RELATIONSHIP BEHAVIOURS
The mother’s case is that the father has a pre-relationship history of acts of family violence against domestic partners.
Ms AA –1997
The father was cross examined for the mother at length about the events of 1997 in which his former domestic partner, a Ms AA, alleged that he committed serious acts of family violence.[22]
[22] Transcript 14 June 2022, commencing p.15 line 25.
Police event record
The police event of the incident recorded that:[23]
Narrative 1 of 2, created […] 1997 22:44
ABOUT 7.30AM, SUNDAY […] 1997, THE VICTIM…….. …….. ATTEMPTED TO BREAK UP WITH THE OFFENDER, [MR MAGOMEDOV]. WHEN SHE TOLD [MR MAGOMEDOV] THAT IT WAS OVER [MR MAGOMEDOV] BEGAN TO THROW …….. CLOTHES AND PERSONAL BELONINGS ONTO THE FLOOR, HE THEN POURED MOLASSES ONTO HER CLOTHES AND THREW HER HEALTH TABLETS ONTO THE CLOTHES. [MR MAGOMEDOV] THEN BLEW HIS NOSE ON …….. CLOTHES BEFORE TAKING A POCKET KNIFE FROM A DRAW AND CUT UP A PAIR OF …….. PANTS AND HER SWIMSUIT. WHILST HE WAS CUTTING UP HER CLOTHING HESAID "I'VE GOT NO MORE REASON TO LIVE, AND NEITHER DO YOU". [MR MAGOMEDOV] THEN BEGAN TO THROW DRAWERS AROUND THE ROOM. HE HIT …….. ON THE RIGHT SIDE OF HER HEAD WITH HIS LEFT HAND. EVERYTIME [MS AA] ATTEMPTED TO SPEAK, THE OFFENDER PUSHED HER ONTO THE BED WITH BOTH HANDS, HE THEN GRABBED HER WITH BOTH HANDS AROUND THE NECK TIGHTLY AND SHOOK HER SAYING "YOU FUCKING BITCH YOU'VE WRECKED MY LIFE". HE LET GO OF …….. WHEN SHE COMMENCED TO SCREAM. THE OFFENDER GRABBED …….. LEFT BREAST AND TWISTED IT CAUSING BRUISING. HE CALLED …….. A SLUT AT THIS TIME. THE OFFENDER SMOKED A CIGARETTE, ASHING IT ONTO HER CLOTHES. THE OFFENDER THEN LEFT AND THE VICTIM PACKED HER BAGS AND LEFT. ABOUT 6.10PM [THE NEXT DAY] POLICE ATTENDED …….. …….. …….. …….. AND SPOKE TO THE OFFENDER WHO IN RELATION TO THE ASSAULT UPON …….. STATED, YES, I ADMIT TO PART OF THAT,' HE WAS CAUTIONED AND REFUSED TO ANSWER FURTHER QUESTIONS. OFFENDER WAS TAKEN TO THE …….. POLICE STATION WHERE HE WAS CHARGES WITH THE MATTER NOW BEFORE THE COURT.
(As per the original)
[23] Exhibit A.
The father’s NSW Criminal History - Bail Report,[24] confirmed he was charged at the police station in 1997 with two offences. Those charges were later dismissed.
[24] Exhibit B; Exhibit ICL1.
The allegations, including partial strangulation, striking, pushing, bruising, threats of suicide, cutting of clothing, other destruction of property and verbal abuse in this incident are at the serious end of the family violence spectrum.
Child Dispute Conference Memorandum
The event is one the matters raised by the mother at the CDC memorandum on 7 August 2019. The expert recorded:[25]
•The mother alleges that the father has a significant criminal history in relation to domestic violence, including making threats of suicide and homicide at the end of one relationship and smashing another previous partner's windscreen. The father denies any previous police involvement with ex-partners, stating that there was one minor issue related to clothing but no charges were laid.
[25] MFI 3, p.369, CDC Memorandum to Court p.2.
It also appears to be the event acknowledged by the father, in his reference to “one minor issue related to clothing”. Despite being cautioned, taken to the police station, and charged in relation to this event, the father denied any police involvement with ex-partners.
Family Report
By the time of the family report interviews on 30 September 2020, the expert had the police record. She raised the records with the father, and with the paternal grandmother. The expert set out the police event material and continued:[26]
80.… It was then recorded that charges for [the incident] were dismissed (Subpoena 1, 6, 16 & 19). At the Child Dispute Conference, the father reported to the Family Consultant that he had a previously had “one minor issue related to clothing, however no charges were laid”. When the father and paternal grandmother were asked about this specific police record, they provided a consistent narrative about what had occurred. The father reported that this was a false allegation made by his girlfriend’s mother when she had left her home and come to live with the father and his parents. He reported that she had been living in a poor environment at home and had sought refuge with the father and his family, enraging his girlfriend’s mother who had then made a malicious allegations in retribution. The father reported that he is still on good terms with the woman who this report is in relation to. The police records do not indicate the reason the charges were dismissed and do not support nor challenge the father’s narrative.
(Bold emphasis added)
[26] Family Report dated 16 November 2020 at [80].
The paternal grandmother set out in her affidavit[27] a highly detailed version of events relating to the 1997 allegations by Ms AA. Her affidavit was consistent with the version she gave to the expert. She said Ms AA was living with them because Ms AA told them “her father was beating and abusing her”, and Ms AA “was pressured into taking out an AVO by her mother because she thought they were sleeping together”.
[27] Affidavit of Ms R filed 26 April 2021 at [84]-[96].
Father’s cross examination
The events of 1997 were the first issue the father was cross examined on.[28] The father was taken to the police event record and given the opportunity to refresh his memory. He said he had seen it before. He was taken through the police record in detail. He said that he could not recall Ms AA attempting to break up with him.[29] He was asked whether he threw her clothes and personal belongings on the floor. He said he did not recall that.[30] When asked about pouring molasses on Ms AA’s clothes he said it was untrue. When pressed he said it was untrue because he could not recall that happening. When pressed further on whether he said it was untrue or he could not recall, he said he could not recall the event at all as it was “last century”.[31]
[28] Transcript 14 June 2022, commencing p.15 line 25 onward.
[29] Transcript 14 June 2022, p.19 lines 32-33.
[30] Ibid lines 39-40.
[31] Transcript 14 June 2022, p.19 line 42 to p.20 line 8.
The father maintained that he had no recollection of any event of the kind recorded by police.[32] He said that he and Ms AA may have argued, but that he had no recollection at all of them arguing.[33] He had no recollection of the police attending his home whilst Ms AA was also present.[34] He repeatedly stated that he could not remember the alleged event and that it could not have happened, although he did state on one occasion when asked about throwing drawers around a room that may, or may not, have happened.[35] In response to the allegation that he struck Ms AA on the right side of her head he said that he could not recall the event but that he had never hit a woman in his life.[36]
[32] Transcript 14 June 2022, p.20 lines 10-13.
[33] Transcript 14 June 2022, p.21 lines 9-19.
[34] Ibid lines 21-22.
[35] Transcript 14 June 2022, p.23 lines 1-8.
[36] Ibid lines 10-19.
The father had no recollection of police turning up and taking him to the police station,[37] and no recollection of being charged by police the day after the incident, however, he did recall having been to that particular police station.[38]
[37] Ibid lines 38-46.
[38] Transcript 14 June 2022, p.24 line 43 to p.25 line 5.
Eventually, after the father had been given every possible opportunity to refresh his memory by counsel for the mother, and as a matter of fairness given the history recorded by the expert as having been given by the father in the Family Report when “asked about this specific police record”, I asked the father to read paragraph [80] of the Family Report. I then asked:[39]
[39] Transcript 14 June 2022, p.57 lines 16-34.
[HIS HONOUR]: Yes. But, you see, you don’t seem to have said to her, not very long ago, that you had no recollection of the event. You seem to have a pretty definite version of what occurred, which you seem to have told to her. And I’m just wondering, if that’s the case, why have you spent the morning telling me you have absolutely no recollection of what occurred? I thought I should give you a chance to explain it to me, because it’s something that troubles me?---
[FATHER]: Yes. It looks to me, your Honour, like she has brought it up with me.
[HIS HONOUR]: Yes?---
[FATHER]: It looks like she has written this down. That’s not something that I’ve explained to her, your Honour.
[HIS HONOUR]: All right. So you – she says “the father reported” and then – but you’re saying you didn’t tell her these things?---
[FATHER]: No. I – she – she may have brought it up, but I haven’t explained it like that. No.
[HIS HONOUR]: Very well. All right. Well, thank you, sir?---
[FATHER]: No problem. Thank you.
[HIS HONOUR]: We will see what the family report writer says in due course. Ms Bateman, please continue.
In cross examination the expert was told the father’s evidence about this. The expert said:[40]
This is my handwritten note, so it might not be verbatim, but the essence of what he said. He said that that girlfriend at the time, her parents were assaulting her and that he came – that she came to live with him. He said it wasn’t her that called the police; it was her mother, and that he had been helping her out, that there was never any strangling. Her mum made the allegations. Her mum made her sign it all and got police to go to the house. He said in terms of the bottle of molasses, it must have leaked on her clothes, that the – that the mother of this woman had stormed into his mum and dad’s house and made the allegations, and that she didn’t support them, and that he’s still friends with this particular woman now.
[40] Transcript 13 July 2023, p.556 lines 17-25.
Finding
In relation to the events of 1997, there is evidence that a complaint was made by Ms AA, but there was no conviction. There was no other evidence called to contradict the father’s and paternal grandmother’s version of events in 1997 as recorded by the expert.
On 7 August 2019 at the CDC the father recalled an event “related to clothing” but said “no charges were laid” and denied any police involvement with ex-partners.
Yet, when questioned just over a year later on 30 September 2020, by reference to the police documents which had become available to the expert, the expert recorded the father and paternal grandmother giving a detailed exculpatory history.
The history recorded by the expert, if given by the father, necessarily meant that the father had a clear and detailed recollection of the circumstances surrounding the allegations and police involvement on 30 September 2020.
Yet, at trial on 14 June 2022, less than two years later, the father repeatedly denied any substantial recollection concerning any police involvement concerning Ms AA.
Further, when taken to the Family Report he denied on oath giving that history or saying those things to the expert.
The expert in oral evidence confirmed the father’s history to her. That was supported by her contemporaneous handwritten notes. The Family Report was published within two months of the interviews. The expert had no reason to fabricate an exculpatory history for the father and include it in the Family Report.
I accept the expert’s written and oral evidence, supported by her contemporaneous notes and subsequent Family Report, that the father gave her the detailed exculpatory history she set out regarding Ms AA.
In find that, when faced with the clear inconsistency between a clear recollection in September 2020 and no recollection in June 2022, the father knowingly lied on oath when he denied giving that history to the expert.
The ICL submitted in closing that these 1997 family violence allegations in respect of which the father was not convicted would be given “very little weight”. If all there was were the hearsay police records, I would accept that submission.
The submission for the father was that:[41]
… - it’s entirely unsurprising that the father might not be able to recall that in circumstances where he’s simply presented with it on cross-examination. Your Honour will have to look at the transcript, of course.
[41] Transcript 14 July 2023 p.626 lines 14-16.
If the father had consistently stated that he had no recollection of the events of 1997 there would be significant weight to that submission.
However, neither submission addressed the issue that the father had a clear recollection and good explanation for the police report when speaking with the expert in September 2020, but no recollection of the events or his detailed exculpatory explanation, in respect of which the maternal grandmother had sworn a detailed trial affidavit filed in his case, when questioned at length about the issue before me.
Nor did either the father’s or ICL’s submissions address the inconsistency between the father’s and the expert’s evidence about the history recorded by the expert, in the context of her contemporaneous notes, or why the father could not recall that exculpatory explanation two years later or did not give it in oral evidence if true.
As I raised during closing oral submissions, the father “sat and very calmly, without blinking an eye, very persuasively explained it was” so long ago he could not even recall the events occurring, but had had a clear memory and “seemed to have a very good explanation for it” when interviewed by the expert in September 2020, which I suggested might go “very strongly to credit…”.[42]
[42] Transcript 14 July 2023, p.623 lines 9-20.
Having re-read the material, and considering the gravity and significance of the finding,[43] I am comfortably satisfied that the father’s oral evidence that he did not give that explanation to the expert, and that he had little or no recollection of the allegations or events of 1997 when giving evidence at trial, was intentionally false.
[43] Evidence Act 1995 (Cth) s 140(2).
The fact that the father’s response when caught, in the obvious inconsistency between no recollection and his history to the expert was to, very calmly and apparently persuasively, lie about what he said to the expert, when he must have been aware that the lie was to be exposed when the expert was called, weighs heavily on my assessment of his credit.
The paternal grandmother’s detailed evidence set out in her affidavit in the father’s case, consistent with the history both the paternal grandmother and the father gave the expert, does not in this context add any weight to the father’s evidence. It does, however, raise doubts about the paternal grandmother’s credibility, discussed elsewhere.
This finding is one of the many factors I take into account in the finding that the father is a witness of little or no credit.
2000 – alleged smashing car windscreen
The other event raised by the mother with the expert at the Child Dispute Conference was of the father “smashing another previous partner's windscreen”.
The police records,[44] contained an allegation that following a conviction at a local court for a traffic offence, where his licence was suspended, the father had an argument over this matter while being driven from Court and “started to kick the front windscreen on the passenger side causing it to crack” then opened the door, left the car and “jumped down an embamkment [sic]” causing the complainant to call police out of concern for the father’s welfare. The complainant advised that they did not hold fears for their own safety.
[44] Exhibit C.
The father was cross examined about this police record. He accepted he lost his licence. In relation to the allegations of kicking the windscreen causing it to crack, he said he did not recall who the driver was or kicking the windscreen of a car noting “[i]t was so long ago – 22 years ago. I’m not – I can’t – I can’t remember back that far.” He could not recall any details of the event. He said he had many girlfriends but said could not recall whether he had any relationships between Ms AA and Ms Borchard.[45]
[45] Transcript 14 June 2022, p.42 line 15 to p.46 line 26.
The father’s evidence about this event was similar to his evidence about the 1997 event, in that he avoided answering questions by denying any memory of the event. While it is clear a report was made, there is no other evidence to support this hearsay account.
While only limited weight can be given to this hearsay evidence, evidence of a complaint by a further person is relevant to the overall assessment of the likelihood the father has a long standing pattern of violent conduct.
Mid-2001 – alleged telephone harassment domestic relationship
The police records state that in mid-2001 a former domestic partner of the father, who ended their relationship with him around Christmas 2000, complained of repeated calls from someone saying nothing. She changed her mobile number but continued receiving calls. A phone trace identified the father’s phone. The father was spoken to and “admitted calling the victim but states he only called as she was calling him as well”. The complainant asked for an ADVO which was listed for late 2001. In the meantime, in mid-2001, police were speaking with the complainant when the complainant received a phone call which police heard. The voice was identified by the complainant as the father’s. An application for an AVO was made and a provisional AVO was served on the father in late 2001.[46]
[46] Exhibit D.
In cross examination the father said he could not recall who he was seeing at that time, police investigating the telephone calls, or being served with an ADVO order protecting a former domestic partner.[47]
[47] Transcript 14 June 2022, p.46 line 28 to p.47 line 12.
The police report is a hearsay record. However, considering all of the evidence before me, I am satisfied that it is likely the father was tracked down through the process of a phone trace on his phone as recorded by police, that he admitted he was making the calls, although denying they were harassing, and that he was served with a provisional ADVO as recorded in the contemporaneous documents. This is another case in which police were involved in domestic relationship issues contrary to his statement to the expert at the Child Dispute Conference.
The father’s evidence that he had no memory of the event, despite being served with an ADVO, must be treated with caution given his decision to use denial of memory as a forensic technique to avoid being questioned about past family violence in relation to the 1997 event and his fabricated denial of giving an exculpatory history to the expert.
While of itself little weight could be given to this hearsay material, again I consider it relevant to an assessment of the evidence overall.
Ms BB - 2019
The father was also questioned about his former partner, Ms BB, whom he was in a relationship with for a couple of years prior to the mother. The mother alleged that she spoke with Ms BB in 2019 and that Ms BB disclosed “physical and psychological violence… He was beating me. We went to DV counselling with [GG Family Services]”.[48] The father gave evidence that his separation from Ms BB was amicable, and they went their separate ways, denying any physical and psychological violence. However, he confirmed they attended a domestic violence counselling session that was aimed at “trying to keep a couple together”.[49]
[48] Mother’s trial affidavit filed 20 May 2021 at [239].
[49] Transcript 15 June 2022 p.147 line 31 to p.148 line 24.
In the absence of any evidence from Ms BB or documentary material, only limited weight can be given to the hearsay evidence from the mother. However, the father’s attendance on a domestic violence counselling session is relevant, and of some weight in assessing, the likelihood that the father engaged in pre-relationship acts of family violence against Ms BB which made domestic violence counselling appropriate.
Alcohol use pre-relationship
The mother’s allegations of family violence were particularly tied to times when she alleges the father misused alcohol. She alleges this was a persistent feature of his behaviours during their relationship.
Police records disclose various pre-relationship interactions with police where the father appeared to be significantly affected by alcohol, and there were two convictions and disqualifications.
In early 2004 police came upon the father “well affected by intoxicating liquor” whilst in his vehicle. He said, “he was considering driving his vehicle home”. The police confiscated the father’s car keys and advised him that he could recover them from the police station when he was no longer affected by alcohol. The father agreed he had been drinking but said there was a “club lock” on he could not get off.[50]
[50] Exhibit E; Transcript 14 June 2022, p.48 lines 13-20.
In late 2004 he was driving with a mid-range PCA reading for which he was fined and disqualified for a period.[51]
[51] Exhibit F; Exhibit B, MFI 5 p.57.
In 2005 police recorded an incident, in which the father appeared to be the victim of a domestic violence offence, where the father “appeared to be heavily intoxicated, however stated that he wasn’t”.[52]
[52] Family Report dated 16 November 2020 at [91].
In 2006 the father was driving an uninsured and unregistered vehicle with low range PCA and fined and disqualified for a period.[53]
[53] Exhibit G; Exhibit B, MFI 5 p.57.
In 2007 the police reported the father was “accused of stealing [items] from service station. Police observed that both people were heavily intoxicated”.[54]
[54] Family Report dated 16 November 2020 at [91]; Exhibit G.
In 2008 police recorded that the father “at about 9.30am the POI attend […] Police station…. the POI appeared to be intoxicated”.[55]
THE FATHER’S ALLEGED FAMILY VIOLENCE AGAINST THE MOTHER?
2016-2017
[55] Family Report dated 16 November 2020 at [91].
Alleged foreign marriage scam
The father says the mother's dating profile location was Sydney. However, he was aware that she was in Country J when he commenced a 3-month long distance online relationship. He says she told him she needed to get out of Country J. He was in no doubt that she was interested in a partner living in Australia.
The father gave evidence that his communication with the mother when she was back in Country J was “at the extreme end of intense, and the frequency of communication as very high”.[56] Despite this, he arranged a romantic holiday with her in Australia.
[56] Father’s trial affidavit filed 27 April 2021 at [5].
The father’s evidence was that the mother sent him a photograph from Country J in November 2016 which was a cover of a diary with the words “[Ms Borchard’s] Diary (How to fuck [Mr Magomedov’s] brain and win his heart)”.[57] His evidence was that at the time he did not think much about it but:[58]
8. … In hindsight I can see how bizarre such wording actually was, and I now have a feeling that she may have even from the outset intended to do something detrimental to me. I don't know what mindset she was in when she sent me such photograph, and whether or not perhaps she was drunk?
[57] Father’s trial affidavit filed 27 April 2021, Annexure A.
[58] Father’s trial affidavit filed 27 April 2021 at [8].
The father said that the fictional character Bridget Jones did not entitle a diary anything about how to “fuck (someone’s) brain”. He said he “was shocked at the time, didn't see the humour in it, and at no time laughed about it”.[59]
[59] Father’s trial affidavit filed 27 April 2021 at [9].
The mother’s evidence was that during their first Queensland holiday they watched the film “Bridget Jones’s Diary”, and the father compared her to that character. She says this was a running joke for two years and that the father saved her name in his phone as “Bridget”. She said the title character changed her diary title over time in the movie. She says the picture she sent him in October 2016, of a blank diary with the title “How to Fuck [Mr Magomedov’s] Brain and Win His Heart”, was a refence to that long-running joke.[60] The mother annexed text messages between the parties referencing the character Bridget Jones, with pictures, and a reference to “bridgeting” accompanied by laughing emojis. The text messages also indicate the mother was saved in the father’s phone as “bridget” while the father was in the mother’s phone as “Love of my life”.[61]
[60] Mother’s trial affidavit filed 20 May 2021 at [27]-[28].
[61] Mother’s trial affidavit filed 20 May 2021, Annexure C.
This contemporaneous documentary evidence is consistent with the mother’s case that the Bridget Jones character was a significant running joke between the parties. I accept the mother’s evidence that the diary photo was an aspect of that running joke in circumstances where both parties were clearly intent on pursuing a romantic relationship despite being in different countries.
I find that the father’s evidence of “shock” implausible, as is his suggestion that he now considers the diary cover evidence that from the outset the mother may have intended “to do something detrimental to” him or may have been drunk.
The father said that although he invited the mother to travel from Country J to live with him on a 3-month visitor’s visa it was not his “intention to get married so early into [the] relationship”. However, the mother got pregnant, so they got married.[62]
[62] Father’s trial affidavit filed 27 April 2021 at [22].
The father was almost 40 years of age when they married. He knew the mother was from Country J and was on a visitor’s visa. He had her cohabit with him on arrival. He must have known that absent a bona fide relationship she would have to leave the country. He was aware of all this when she came, cohabited, got pregnant, miscarried, they married and got pregnant a second time. I reject the father’s evidence to the extent it is intended to support the case that he was the naïve and innocent victim of a foreign marriage scam.
Alleged family violence
The mother alleges that the family violence commenced almost immediately upon her commencing cohabitation with the father. She said that after an incident with one of his friends, which she found distressing, he took photos of her crying and showed her the next day, deleting them and apologising when she complained.[63]
[63] Mother’s trial affidavit filed 20 May 2021 at [35]-[38].
She said the father’s first verbal outburst occurred when visiting the father’s parents in Region M around Christmas. The mother alleged that the father was yelling close to her face, shouting loudly and spraying saliva onto her face, only apologising the next day.[64] She says his parents would have heard this. The father recalled visiting his parents, however, did not accept the events described by the mother.[65]
[64] Mother’s trial affidavit filed 20 May 2021 at [39]-[40].
[65] Transcript 14 June 2022, p.60 line 30 to p.61 line 5.
The mother fell pregnant in early 2017. The mother said she experienced pains in her belly at nine weeks and asked the father to see a doctor, to which he said “[y]ou’ll be fine. The doctor is too expensive”. The mother was not eligible for Medicare and did not have a licence. She said the doctor was a 40-minute walk. She said that three days later the father took her to the doctor after she bled all over their bed, and the doctor advised she had miscarried. The mother states that the father yelled at her two days later.[66]
[66] Mother’s trial affidavit filed 20 May 2021 at [48]-[50].
The father’s evidence was that the miscarriage was diagnosed in early 2017, he never stopped the mother from seeing her doctor, he wanted the baby and would not have deprived her of medical attention. He said the doctor was within walking distance.[67] In cross-examination the father denied yelling at the mother following the miscarriage.[68]
[67] Father’s trial affidavit filed 27 April 2021 at [12].
[68] Transcript 14 June 2022, p.62 lines 14-15, 38-39.
The parties married in early 2017, less than two weeks later. In mid-2017 the parties applied for a spousal visa.[69] The father relies upon the marriage and the mother’s sworn glowing declarations of the parties loving and supportive relationship to migration authorities as sworn evidence inconsistent with the mother’s allegations. The mother’s evidence was that “I was concerned about [Mr Magomedov’s] behaviour but I loved him and thought we could work through his problems”.[70]
[69] Mother’s trial affidavit filed 20 May 2021 at [51]; Father’s trial affidavit filed 27 April 2021 at [25]; Transcript 14 June 2022, p.62 lines 44-45.
[70] Mothers trial affidavit filed 20 May 2021 at [51].
In October 2017, the mother alleged the father returned home from a party, stumbling, and slurring his words. She says she was sitting on the couch talking to a friend on her phone. She alleges the father yelled “[g]ive me your fucking phone!” then snatched it from her hands and threw it at a wall, shattering it. She said the next day they drove to a phone repair shop. They were in the car in the car park, and when she tried to be affectionate towards the father and touched his leg the father yelled “[f]uck off” and punched her in the hip.[71]
[71] Mother’s trial affidavit filed 20 May 2021 at [52]-[53].
In cross examination the father denied snatching the phone from the mother’s hand, throwing it against the wall, and shattering it. He recalled attending the phone repair shop for the purpose of fixing the mother’s phone but explained that it “fell off the lounge armrest and hit the floorboard… and the screen just smashed”.[72] The father denied the mother’s other allegations.[73]
[72] Transcript 14 June 2022, p.63 lines 1-40.
[73] Transcript 14 June 2022, p.63 line 42 to p.64 line 8.
The mother alleged that one evening in 2017, when walking home from dinner, the father was aggressive, grabbed her hair, pulled it, and hissed “[s]hut the fuck up”, then started kicking boxes on the driveway, causing her to be scared and run away to a field. She said that as she had no family or friends in Australia she returned to the father.[74] The father denied all these allegations.
[74] Mother’s trial affidavit filed 20 May 2021 at [54].
The mother alleges that one evening in November 2017, on the way home from a pub, the father elbowed her deliberately, when she had previously discussed with the father that she needed an operation on that area to repair an injury.[75] In cross examination the father denied elbowing the mother.[76]
[75] Mother’s trial affidavit filed 20 May 2021 at [55].
[76] Transcript 14 June 2022, p.64 lines 10-30.
In late 2017, the mother alleges she was studying in the library and that the father phoned saying he was “in the area” and was coming to get her but started shouting at her when she arrived at the car, about three minutes later, that she had “…made [him] wait!”.
She says that later that evening the father started yelling and raising his fists. The mother became upset and turned away from the father on her phone. He then stated “[g]ive me your fucking phone. Who are you texting?, What are you hiding from me?”. The father then allegedly ripped the phone out of her hand. The father then eventually gave the phone back, and said, “I will not sleep, I will go through your stuff and find out what you are hiding” and when she asked him not to touch her, he “squeezed [her] aggressively”.[77] In cross examination the father denied the allegations.[78]
[77] Mother’s trial affidavit filed 20 May 2021 at [58]-[65].
[78] Transcript 14 June 2022, p.64 line 32 to p.67 line 34.
Two days later, the mother said she went to the CC Women’s Health Service where a counsellor suggested she contact an organisation for crisis accommodation.[79]
[79] Mother’s trial affidavit 20 May 2021 at [66].
In late 2017, the mother says the parties discovered she was pregnant again. The mother says she contacted her aunty who told to get in touch with the father’s mother.[80]
[80] Mother’s trial affidavit filed 20 May 2021 at [67].
The following day, the mother says she called the paternal grandmother and told her that she was pregnant again, that the father was always yelling, was very aggressive and that there had been physical incidents. She alleged the paternal grandmother asked why she married him then and said that he acted that way because of alcohol. [81] The mother sent the paternal grandmother a text message that said:[82]
I am sorry [Ms R], I didn’t want to upset you. But I really want our marriage to work and have a healthy baby. I love your son. We all need to talk to him. You are his mum and best friend and I also really like you. That’s why I asked you to help us [heart emoji]
[81] Mother’s trial affidavit filed 20 May 2021 at [68].
[82] Mother’s trial affidavit filed 20 May 2021, Annexure E.
The text message is consistent with the mother’s evidence.
In cross examination,[83] the paternal grandmother agreed the mother complained that the father was “always yelling at me” but did not agree the mother said the father had been “aggressive”. She agreed the mother had complained about his behaviour and asked her to talk with him about it. She denied asking why the mother married the father or saying that his behaviour was because of alcohol. She said she called and spoke with the father about his behaviours towards the mother but did not agree it was about aggression or drinking. She stated that she contacted the mother “a couple of days later” and the mother indicated that “[e]verything is fine and [Mr Magomedov] is being great”.
[83] Transcript 15 June 2022, p.179 line 1 to p.184 line 10; p.189 line 36 to p.190 line 34.
The mother’s evidence was that in November 2017, the father discovered she had changed the password on her phone and ordered her to change it back, which she did because she was frightened.[84]
[84] Mother’s trial affidavit filed 20 May 2021 at [70].
The mother said that they argued in December 2017, he yelled, she cried, and that she believed that the father enjoyed his power over her.[85]
[85] Mother’s trial affidavit filed 20 May 2021 at [71]-[72].
Dr B January 2018
The mother’s evidence is that in January 2018 she told the father “I think we should divorce, I cannot live with your anger issues”, to which the father replied “I will kill myself if you leave me, you are my life. I am so sorry”. The mother says the father had threatened self-harm on previous occasions, making comments such as “[h]eroin overdose would be the best way” and “one bullet is all it would take”. After this the mother says the father agreed to attend a counselling session which led to the joint attendance on Dr B.[86]
[86] Mother’s trial affidavit filed 20 May 2021 at [73]-[76].
In cross examination the father denied that the mother said they should divorce, that she said she could not live with his anger issues, or that he threatened to kill himself.[87]
[87] Transcript 14 June 2022, p.67 line 41 to p.71 line 37.
GP referral
In January 2018 the mother obtained a referral from her GP for counselling on a reported history of “domestic violence victim pregnant’.[88]
[88] Exhibit N p.4.
Dr B’s affidavit and report evidence
The mother read an Dr B’s affidavit filed 24 May.
It was common ground the father attended a joint counselling session with the mother and Dr B in January 2018 and that Dr B made a typographical error in her reports.[89]
[89] Transcript 14 June 2022 p.71 lines 39-40; Transcript 15 June 2022 p.115 lines 41-42.
The mother says the father agreed to attend a session with Dr B “to try and address his issues”,[90] and that he made the statements set out by Dr B in her report of 6 September 2018, soon after separation, where Dr B recorded:[91]
Both [Mr Magomedov] and [Ms Borchard] attended a joint session on the […]/01/2017 (sic). [Mr Magomedov] acknowledged his aggression in the joint session and stated that his father was aggressive towards the family and thought that he got his aggressive behaviour from his father. He justified his anger by excessive drinking. [Mr Magomedov] stated that he wanted this relationship to work as he did not want to lose [Ms Borchard] and the baby. [Mr Magomedov] voiced that they had plans to relocate to his parent's [property] in […] NSW. He also voiced that he was interested in attending an anger management course of "taking responsibility for anger" so that he could change and he [sic] a good husband and father and assured that both of them will continue with relationship counselling once they relocate. …
[90] Mother’s trial affidavit filed 20 May 2021 at [75]-[76], Annexure F; Exhibit N pp.15-19.
[91] Ibid, Mother’s trial affidavit filed 20 May 2021 at [75]-[76], Annexure F; Exhibit N p.16.
Under the heading “Recommendations” Dr B wrote:[92]
[92] MFI 5, pp.159-160; Exhibit N, pp.18-19.
The following had been recommended to both [Mr Magomedov] and [Ms Borchard] as they were going to move to away from Sydney:
•For [Mr Magomedov] to attend an anger management course.
•For Both [Mr Magomedov] and [Ms Borchard] to attend relationship counselling together.
•For [Ms Borchard] to continue with psychological intervention with focus on trauma-focused psychological treatment, to be aware of risk issues and crisis action plans and to learn constructive strategies to cope and building her self‑esteem and self-confidence.
•For [Ms Borchard] to increase her support network so that she feels protected and safe (contacts provided with the […] Church and other supportive networks)
Both [Mr Magomedov] and [Ms Borchard] acknowledged these recommendations at that time but it has come to my awareness that this was not followed through once they had moved.
…
Father’s evidence
The father said in his affidavit:[93]
51.I only went to see [Ms Borchard’s] psychologist [Dr B] as I was trying to support [Ms Borchard] as she had a few emotional breakdowns through the year. [Ms Borchard] told me she was constantly taunted with bitter memories of her childhood and events which happened to her, prior to coming to Australia. After [Ms Borchard] left, my mother told me she that she had found a box of [Country J] medication. When translated to English my mother told me that she realised it was for the treatment of anxiety. I had no knowledge of [Ms Borchard] being treated for anxiety prior to coming to Australia.
[93] Father’s affidavit filed 27 April 2021 at [51].
The father was shown and cross examined on the relevant section of Dr B’s report of 20 May 2021. He accepted that the issue of aggressive behaviour “was raised” in the session with Dr B but denied that he had acknowledged that he engaged in aggressive behaviour.[94]
[94] Transcript 15 June 2022, p.115 line 41 to p.116 line 2.
The father denied that he said to Dr B that he got his aggressive behaviours from his father. He was asked:[95]
[COUNSEL FOR MOTHER]: Okay. You say that [Dr B] [sic], then, went off on a little venture of her own and wrote something in this document that was not said by you, correct?---
[FATHER]: Correct.
[95] Transcript 15 June 2022 p.116 lines 37-38.
The father agreed that he acknowledged to Dr B he drank excessively at times. He denied that he indicated to Dr B that he justified his anger with excessive drinking or saying anything like that. He gave evidence that “I don’t get angry when I drink. I’m actually happy. So that’s out of context, yes. I said I had .... drink excessive, but I didn’t say I get angry when I drink. That’s untrue”. He denied saying anything to Dr B about being aggressive, but said he would “get upset at times, and angry, but I wouldn’t say aggressive, no”. The father said he could not recall the specifics of the conversation with Dr B but denied that he had said the things recorded because he did not get angry when he drank because “that’s not who I am”.[96]
[96] Transcript 15 June 2022 p.116 line 42 to p.118 line 33.
The father was pressed on the issue and maintained that he had not “confirmed having anger issues” and disputed Dr B’s statements that he had.[97] In relation to Dr B’s reporting that he promised to undertake the Taking Responsibility course, he accepted that he said something about undertaking that course but not that he promised to attend. He accepted that he made inquiries about attending a Taking Responsibility course,[98] and was provided with materials in respect of that course between January and July 2018.[99] He understood it was “a 10-sessions course about anger management”.[100] He was not sure if he knew about the Taking Responsibility course before seeing Dr B or if she mentioned it.[101]
[97] Transcript 15 June 2022 p.118 line 41 to p.119 line 22.
[98] Transcript 14 June 2022 p.72 lines 33-34.
[99] Transcript 15 June 2022 p.119 line 41 to p.120 line 15.
[100] Transcript 14 June 2022 p.73 lines 5-6.
[101] Transcript 14 June 2022 p.95 lines 34-37.
Dr B’s oral evidence
Dr B was called and cross examined, amongst other things, on the father’s alleged admissions. Dr B holds a qualification in clinical psychology, is a practicing registered clinical psychologist and has practiced in the field for 30 years.[102] Dr B referenced the Expert Witness Code of Conduct.[103]
[102] Affidavit of Dr B filed 24 May 2021, Annexure A Curriculum vitae of Dr B.
[103] Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW), which are not relevantly different to the Rules in this Court.
Neither Dr B nor the parties had access to Dr B’s clinical notes when she gave her oral evidence.[104]The notes were called for during her cross examination and ordered to be produced, they were subsequently produced by Dr B, and then tendered.[105] The notes are considered below.
[104] Transcript 24 November 2022 p.477 lines 20-24, 33.
[105] Exhibit N, tendered on 13 July 2023.
Dr B accepted it was possible that it was put to the father that he had aggression and that he just agreed.[106] In relation to the word “justified”, Dr B agreed she was not necessarily being critical of the father but rather looking at a timeline of when the heightened anger occurred.[107] She accepted that this was the only time she had met the father and that the mother was the sole source of the other history.
[106] Transcript 24 November 2022 p.477 lines 39-42.
[107] Transcript 24 November 2022 p.477 line 44 to p.478 line 7.
Given the father’s denial of making the recorded concessions, and the potential significance of these concessions given each parties’ case Dr B was asked what aggression the father acknowledged and said:[108]
[DR B]: Right. I think when we discussed his anger towards her – his both physical and verbal responses – he acknowledged that. He did say that he knows he was out of line. He was even in agreeance to go for counselling himself and that they were going to move away to this wonderful [property] in March, and both of them would receive couples counselling. He mentioned that maybe his – his father was an aggressive person in the family, and maybe he has got this aggression from the father, which I think I noted there. So he acknowledged that his responses were more aggressive than just plain, you know, loud shouting, and I think that’s what startled [Ms Borchard] in terms of the fear – that what brought upon the trauma and the fear.
[108] Transcript 24 November 2022 p.482 lines 28-39.
Dr B was asked if the father had agreed, for example, that he held a knife to her. She said that while she recalled the mother speaking about a knife to her, she could not say whether the father had agreed with that.[109] Dr B’s caution in giving this answer supports the reliability of her evidence, given that, as is clear from the chronology, the event involving a tool containing a knife allegedly occurred after this session.
[109] Transcript 24 November 2022 p.484 lines 16-22.
Counsel for the father cross-examined the Dr B on the final paragraph of her report which stated, “[Ms Borchard’s] priority is to protect [X] at all costs from the torture she went through”. Dr B agreed these were the mother’s words.[110]
[110] Transcript 24 November 2022 p.476 lines 16-25.
There was a suggestion in cross examination that Dr B may have acted unethically because the report refers to having notified the mother about issues of confidentiality but does not refer to notifying the father. Dr B said “at the start of every session, there is a verbal clause for these – for the confidentiality and the limits of confidentiality. And definitely, when I had [Mr Magomedov] and [Ms Borchard] in there, that would have been read to them”.[111] She was not challenged on that evidence, which I accept. Dr B accepted she should have stated in her report that both the mother and the father were given this advice, rather than only referring to the mother.[112] That is a technical oversight. Dr B was also cross examined about the fact that she had a copy of the Family Report and how this came about. She was provided with a copy. Any breach of the law in that regard was not Dr B’s responsibility.
[111] Transcript 24 November 2022 p.485 lines 12-15.
[112] Transcript 24 November 2022 p.487 lines 11-24.
Neither of these matters adversely affects my assessment of Dr B’s credibility nor the weight I give to her evidence. I am satisfied there was no unethical or unprofessional behaviour by Dr B.
Clinical notes - contemporaneous
The handwritten clinical notes for January 2019 include a history which refers to the father, including:[113]
Labourer People control him – he comes home & controls me. He enjoys power over me. Told him to go & do anger management. Strange friends – drug addicts, alcohol – he starts @ 12pm daily. He hit me two times. He threated to kill me. Moving to [Town DD] – 1 month. He decided to sell house move to [Town DD] where his parents live. “Where is your Euros” I had my savings. Phoned MH line. Anxiety 5 hrs not sleeping – Because he was shouting. Look for anger courses in [Town DD]…
(As per the original)
[113] Exhibit N p.7.
This is clearly the mother’s history. It is consistent with her evidence to me and relevant to the extent there is any suggestion of subsequent invention.
The handwritten clinical notes identify the third session as occurring on “[…]-01-18” with the annotation “Both – [Ms Borchard] wanted [Mr Magomedov] to come in to her session.” The notes also said “Looking for anger courses in [Town DD] [sic]”.[114]
[114] Exhibit N p.2.
The clinical notes for that session referred to the mother being “scared” and the father “yelling, tradesman, [trade], 60-70 hrs a week”.[115] They continued:
[115] Exhibit N p.13.
-Next week Move to [Town DD]
-Raises his voice – makes me upset
-Once he pulled my hair – raining on night
-[Ms Borchard] demands a lot – to go to beach, wants horse she wants to live @ Beach
He bought himself a [weapon] – extra [weapon]
Believes he works hard
Likes his [sport] and fishing
[Mr Magomedov] acknowledges anger
…
(Bold Emphasis added)
I give significant weight to the contemporaneous note of this admission taken during the session by Dr B.
Finding
On the mother’s case, her attendance at her GP and Dr B, as well as her complaints of family violence, are evidence both of contemporaneous complaint and of her active attempts to address the issue in order to save the relationship by having the father acknowledge and change his behaviours.
On the father’s case, the mother’s attendance on her GP and her complaints to Dr B demonstrate the mother fabricating evidence to justify seeking a domestic violence visa to leave him and stay in Australia with the child, at a point in time when the mother was no more than three months pregnant. Further, he says he did not make the concessions attributed to him by Dr B and that Dr B’s report recorded things he did not say.
Dr B’s handwritten contemporaneous notes are consistent with her report of 6 September 2018. Her report of 6 September 2018, which contains more detail, was written sufficiently contemporaneously for her to have had a clear recollection of what occurred that January. The contemporaneous note that the parties were looking for “anger courses” in Town DD and the father’s initial engagement with the Taking Responsibility course,[116] also support his having made this acknowledgement and agreement to seek assistance for his anger management.
[116] Transcript 14 June 2022, p.72 line 30 to p.73 line 21.
Dr B’s oral evidence, including her unwillingness to state specifically if certain specific events were admitted by the father when she was not sure, was balanced and persuasive. I am satisfied that Dr B’s role as the mother’s treating practitioner did not cause her to give, intentionally or unintentionally, incorrect, or inaccurate evidence.
I prefer the contemporaneous clinical notes, first written report, and oral evidence of Dr B to the evidence of the father. I find that the father made the statements attributed to him by Dr B.
I find that in the joint session with Dr B, the father acknowledged his aggression, said that his own father was aggressive and that he thought he got his aggressive behaviour from his father. Further, he attributed his anger, in terms of timing, to excessive drinking, and expressed interest in attending an anger management course, which the parties agreed to look for in Town DD, so that he could change and be a good husband and father, with the implicit acceptance that he needed assistance with anger management to change.
To the extent it was argued, I do not accept that the admissions the father made to Dr B, or his agreement to and initial enquiries about the Taking Responsibility course, were false admissions of non-existent problems made merely to pacify the mother, despite there in fact being no issues of family violence.
The father’s evidence, that Dr B falsely attributed to the father and reported something he had not said, is similar to the father’s evidence that the expert falsely attributed to him an exculpatory explanation for the events of 1997 that he did not give her. This was another example of the father’s willingness to calmly, and on the face of it persuasively, tell a lie about the conduct of a professional in the preparation of a report for this Court because the truth did not match his case and in the knowledge that that professional would be called to give evidence.
I find that the father lied on oath about what he said in the joint session in order to avoid the consequences of these concessions against interest, in the context of his case of a denial of anger issues or family violence and that the mother’s complaints are fabricated.
I give significant weight to these contemporaneous concessions by the father as evidence that the mother’s complaints of family violence were true. The father’s lies on oath about what he said in the session are further matters which affect my assessment of his credibility.
Early 2018
In early 2018, the parties moved from Suburb L to Region M to live with the paternal grandparents. The mother states that she was granted a work permit, and the father told her she needed to find a job, however, she was pregnant, the property was isolated, and she was without transport.[117] The mother said that on their anniversary the father was rude and blamed her for “demanding” a holiday in City Q.[118]
[117] Mother’s trial affidavit filed 20 May 2021 at [77]-[80].
[118] Mother’s trial affidavit filed 20 May 2021 at [81]-[82].
In early 2018, when the mother was around 25 weeks pregnant, the mother’s evidence was that they argued about the father wanting a holiday in Queensland, and the father became angry and began to yell and kick chairs on the balcony. The mother says she ran from the kitchen, the father following her through the house, and onto the street. The father then got in the car and followed her for about 10 minutes.[119] In cross examination, the father recalled a similar conversation but denied that he kicked chairs, that the mother ran away, or that he followed her in the car.[120]
[119] Mother’s trial affidavit filed 20 May 2021 at [83]-[86].
[120] Transcript 14 June 2022, p.73 line 37 to p.74 line 20.
Early 2018 – EE Hospital
In early 2018, the mother sought assistance at EE Hospital. The clinical notes,[121] as summarised by the expert said:[122]
-[…]/2018 – The mother was provide information to access the DV Helpline.
-[…]/2018 – “Hx childhood trauma – sexual and emotional. Limited contact with own parents. Had had counselling support. States mum in law supportive. Disclosed hx of DV with [Mr Magomedov] at booking in. States physical: pushing, verbal psychological. Controlling – money, feels isolated. Wishes to stay in relationship until after baby is born? He will change once baby is born. However states will leave if not changed. Coming for regular visits as accessing DV resources – legal, Centrelink, migrant worker etc.”
-[…]/2018 “Multicultural resources state she is not entitled to any financial assistance until after the baby is born. She is on a bridging visa currently. Looking at leaving the relationship once the baby is born.”
(As per the original)
[121] Exhibit P.
[122] Family Report dated 16 November 2020 at [72].
In early 2018, the mother alleged that the father would not allow her to purchase a punnet of blueberries, despite spending a significant amount of money on alcohol weekly. When they left the store, the mother alleges the father drove 20 to 30 kilometres over the speed limit, changing lanes very quickly.[123] In cross examination the father agreed there had been an argument about blueberries, because of their cost, but denied driving at excessive speeds or in a way that would have been perceived to be threatening.[124]
[123] Mother’s trial affidavit filed 20 May 2021 at [89]-[90].
[124] Transcript 14 June 2022 at p.74 line 22 to p.75 line 30.
A few days later, the mother said that the parties were going to the beach for coffee but instead the father drove erratically for three hours on a wet, muddy, bumpy road and that the father appeared to enjoy making her feel scared.[125] In cross examination the father denied this.[126] The short video tendered by the mother adds nothing to the issue.[127]
[125] Mother’s trial affidavit filed 20 May 2021 at [88].
[126] Transcript 14 June 2022 p.75 line 35 to p.81 line 22.
[127] Exhibit H.
Refuge mid-2018
It is common ground that the mother stayed at a refuge for three days in mid-2018 when she was about seven months pregnant. The surrounding circumstances were contentious.
The parties went to prepare the Suburb L property for sale. The mother’s evidence,[128] is that the parties were arguing while they were at Suburb L while getting ready to meet some friends. She said the father was drinking, using abusive language, including calling her a “cunt”, that he came up to her face and raised his hand and screamed at her, causing her to suffer pain in her stomach and difficulty breathing and causing her to flee the house. She said the father followed her out of the house but eventually stopped following her.
[128] Mother’s trial affidavit filed 20 May 2021 at [91]-[99].
The mother’s primary proposal was that she have sole parental responsibility, that the child live with her and spend no time with the father based on the father posing an unacceptable risk of harm to the child on the basis of a propensity for family violence.[244]
[244] MFI 7, Aide-Memoire 2, Mother’s Case Outline filed 10 June 2022; Transcript 14 July 2023, p.637 lines 11‑19.
The mother also provided alternative proposed orders in the event the Court determined that the father did not pose an unacceptable risk of harm to the child.[245] The alternative proposal was for the mother to have sole parental responsibility, for the child to live with the mother, and spend incremental time with the father; from 1.00 pm to 5.00 pm each alternate Saturday for six months supervised by Ms C in a public setting; each alternate weekend from 3.00 pm or the conclusion of school on Friday until 5.00 pm on Saturday, with such time to be supervised by Ms C for a further six months; and thereafter each alternate weekend from 3.00pm or the conclusion of school on Friday until 3.00pm or the conclusion of school on Monday.
[245] MFI 18.
Commencing in 2024 there is provision for special occasions. Commencing from Term 1 in 2025, during school holidays for seven nights commencing from 3.00 pm or the end of the last day of school term until 3.00 pm on the day after the seventh night.
She proposed changeovers from school or via the public shopping centre, provision for video calls, written communication except in case of emergency, orders to keep informed, for access to school or medical information and standard restraints around denigration. The mother also offered, voluntarily, an undertaking “to engage with a psychologist under a Mental Health Plan for treatment in relation to PTSD and anxiety”.
CLOSING SUBMISSIONS
ICL
The ICL’s submission was that while the parties clearly had a dysfunctional relationship, I would not find that the father poses an unacceptable risk of harm to the child, applying the relevant standard, and would not sever the relationship between the child and the father, but nor would I remove the child from the mother nor have the child live with the father.[246]
[246] Transcript 14 July 2023, p. 620 lines 15-20, p.621 lines 15-16, and p.618 lines 18-19.
The ICL submitted the parents did not have the capacity to communicate or make joint decisions and that this would cause difficulty for the child if they were required to reach a consensus and could not. Therefore, on a practical basis, aside from the issue of family violence, the ICL submitted the parent the child lives with should have sole parental responsibility.[247]
[247] Transcript 14 July 2023, p.618 lines 21-33.
The ICL submitted that the only real evidence of risk to the child was the incident shortly after the child’s birth where the father waved a tool at her while she was holding X. The ICL submitted that a review of the decision from the Town DD Local Court, which does not bind me, with respect to the assault charge and the ADVO, and of the mother’s diaries would cause the Court concern in placing weight on the mother’s version of events.[248] In those circumstances the ICL submitted there was “no real evidence of risk of harm to [X] himself”.[249]
[248] Ibid lines 40-46, p.619 lines 1-11; Family Report dated 16 November 2020 at [76].
[249] Transcript 14 July 2023, p.619 lines 13-14.
The ICL submitted that the relationship between the child and the father is good, with a meaningful, warm and secure attachment and connection appropriate for the child’s age, noting the supervision reports and the expert’s evidence.[250]
[250] Ibid lines 16-29.
The ICL submitted that the Russell v Close [1993] FamCA 62 case was not a basis for the no‑time order, although noting it was the basis on which the mother ceased time between the child and the father in March and April of 2022 when the mother said the child reported the father was smashing his toys and was expressing fear.[251]
[251] Ibid lines 35-42.
The ICL submitted there were problems with the mother’s evidence which would lead the Court to have problems accepting her credibility, and that while I could be satisfied that the relationship between the parents was poor, I could not be satisfied the father poses an unacceptable risk. The ICL referred variously to issues with: the engagement of Dr B, noting the SMS messages between the mother and father about him going to counselling if he wanted to relationship to continue; the mother’s diary entries that appeared to be at cross purposes; and evidence by the mother in her statutory declaration about the state of the relationship to obtain a visa apparently contrary to the evidence she has given in these proceedings and told others.[252]
[252] Transcript 14 July 2023, p.620 lines 22-40.
It was submitted the father has no significant criminal history giving rise to concerns moving forward, that there is no evidence of family violence between the father and Ms C indicating he is not a “perpetual perpetrator of family violence”, and that there is no basis to find that Ms C or her associates pose any unacceptable risk of harm.[253]
[253] Transcript 14 July 2023, p.620 line 43 to p.621 line 40.
The ICL submitted there was no need to have a process of re-introduction and that the child could tolerate, as the expert said, two periods of two nights away from the mother and, by 2024, three nights in single tranches.[254]
[254] Transcript 14 July 2023, p.621 lines 20-27; p.623 line 40.
The ICL submitted they had “grave concerns about the mother’s capacity to comply with court orders” noting the interim orders have not been discharged but the mother has not consistently complied with them. Despite that, the ICL proposed orders that the child live with the mother despite the real risk of future litigation.[255]
[255] Transcript 14 July 2023, p.622 lines 7-11, 19-21.
The ICL submitted that the evidence of the father’s parents was credible and was not seriously challenged. The ICL said the Court would not accept that the paternal grandfather was himself a perpetrator of family violence.[256]
[256] Transcript 14 July 2023, p.622 line 40 to p.623 line 5.
The ICL noted that the mother’s undertaking to undertake treatment in her notation was not binding, and that in any event as she says she will cope with three nights a fortnight, or seven day blocks it would not be deleterious to her parenting capacity to manage her mental health. The ICL also noted the mother’s proposal in the alternative involved the parents in substantial contact, for example at school functions, which suggested she believed she could manage her anxieties.[257]
[257] Transcript 14 July 2023, p.624 lines 3-8, 14-17.
Father’s submissions
The father adopted the ICL’s submissions on risk, and on the mother’s credibility,[258] and on accepting the expert on the lack of need for a staged approach in circumstances where there has been extensive supervised time to date.[259]
[258] Transcript 14 July 2023, p.625 lines 37-40.
[259] Transcript 14 July 2023, p.630 lines 27-32.
It was submitted that there was no “objective evidence” to support the mother’s belief and case that the father is a predator, dangerous and cannot be trusted.[260] He accepted that if, contrary to his case, there is factual finding of unacceptable risk then the mother’s primary orders follow.
[260] Transcript 14 July 2023, p.627 lines 7-10.
It was submitted that in considering credit, the transcript of the local court proceedings, the findings in relation to which do not bind me, would cause me to find that the mother’s credibility was shaken noting different versions given under oath at different times.[261]
[261] Transcript 14 July 2023, p.626 lines 20-30.
The father also pointed to the mother’s complaints about the supervision service of not noticing or reporting certain things and her accusation of being lied to, as evidence that the mother made complaints because the evidence that the child was enjoying time with the father did not fit her preconceived narrative about who the father was.[262]
[262] Transcript 14 July 2023, p.626 line 45 to p.627 line 5.
The father submitted that, contrary to the ICL’s submission, the evidence in the text message communications between the parties,[263] showed they were able to engage in “perfectly civil communication” but that the mother chooses, whether due to anxiety or otherwise, not to.[264] It was submitted that the mother worked to avoid good communication as part of her “unrelenting campaign to shut the father out”.[265]
[263] Father’s affidavit filed 27 April 2021 at [192], Annexure BB; Father’s affidavit filed 24 May 2022 at [25]-[27], Annexure C.
[264] Transcript 14 July 2023, p.627 lines 30-39, p.628 lines 5-8.
[265] Transcript 14 July 2023, p.628 lines 25-26.
On the issue of communication, taking one example, on 29 November 2019 the mother asked for information about an apparent bite mark on the child. The father replied saying he could not assist with any information and “Please consult a doctor if you are concerned”. The mother responded unhappily saying, amongst other things, “Would be good if you could supervise him better” and later “You both obviously don’t care.”
I note that while some of the communication is civil, much of it is dismissive by the father and frustrated by the mother. In my view even these text messages, selected in the father’s case on good communication and effective co-parenting, tend to support the ICL’s submission that the parties are unable to communicate or co-parent. In any event, the totality of the evidence makes their inability to communicate or co-parent abundantly clear.
The father also submitted that the mother not only chose not to communicate civilly but “chooses not to cope and chooses not to follow the advice of [Dr B]” and that, as Dr B agreed, if the mother followed her advice the mother would not experience the difficulty that she does.[266] That submission raises issues about the impact of mental health impairments on a person’s capacity to comply with advice for the treatment of mental health impairments.
[266] Transcript 14 July 2023, p.627 lines 35-45.
The father submitted that the allocation of parental responsibility was almost more important that the live with order. The submission was that if the mother is given sole parental responsibility she will weaponise it against the father at every opportunity. In that context the father submitted that orders needed to be crafted in such a way that the mother could not simply ignore them without consequences, and in effect repeat of her behaviours of non-compliance with orders.[267]
[267] Transcript 14 July 2023, p.629 lines 21-24, p.630 lines 5-17.
In that context the father submitted that if the child lives with the mother, I should make a conditional order, although acknowledged the difficulties in crafting an effective and appropriate order.[268]
[268] Transcript 14 July 2023, p.631 lines 15-18.
The father submitted that the expert’s evidence on the risks to the child of the loss of the paternal and paternal family relationship, and the risks in the mother’s household make the father an important counterbalance, and also the expert’s evidence on the importance of the sibling relationship, and that Ms C did not wish to be alone with the mother.[269]
[269] Transcript 14 July 2023, p.633 lines 10-20.
Mother’s Submissions
The mother’s case outline at the commencement of the trial submitted:[270]
1. The Mother makes an argument in line with Russell & Close [1993] FamCA 62 and B & B (1993) FLC 92-357.
2. The Mother’s evidence is that due to the Father’s physical, psychological and emotional abuse during the relationship she now suffers extreme anxiety at the thought of [X] spending time with the Father and the harm that may flow to [X] from such time. Should such time continue, the Mother’s mental health, physical health and parenting capacity are likely to be adversely impacted.
[270] Mother’s Case Outline filed 10 June 2022 p.8.
In closing submissions counsel for the mother expressly abandoned the full Russell & Close argument in relation to the primary application and relied on the proposition that the evidence established that the father poses an unacceptable risk of harm of physical and psychological violence due to his history of family violence. Reliance was placed on the mother’s mental health as relevant to the determination of any time regime, in the event her primary case of unacceptable risk was not accepted.[271]
[271] Transcript 14 July 2023, p.617 lines 1-20.
The primary submission for the mother was that the Court would accept the mother’s case on family violence, alcohol use and associated aggression.[272] Sole parental responsibility would follow as would a no-time or no communication order. In the alternative, it was submitted even if there was time with the father, the child should live with the mother and given the parents inability to communicate and co-parent, noting the Family Report at paragraphs [55], [60] and [130], as well as the overall evidence, sole parental responsibility should be allocated to the mother.[273]
[272] Transcript 14 July 2023, p.637 lines 11-19.
[273] Transcript 14 July 2023, p.637 line 35 to p.638 line 10.
Counsel for the mother relied in particular upon: the mother’s evidence, Dr B’s notes of the father acknowledgements of aggression in the context of alcohol use, and what were submitted to be the father’s lies about that concession and the later similar concession, the material from GG Family Services and EE Hospital, hospital records, text and Facebook messages around the events in mid-2018, and also the similarity with the allegations recorded as being made by prior partners, which the mother did not have access to when making her contemporaneous complaints, as the basis for the finding of unacceptable risk.[274] Reliance was also placed on the evidence of alcohol abuse as well as the father’s concession to Dr B linking alcohol use to his aggressive behaviours.[275]
[274] Transcript 14 July 2023, p.641 lines 15-32; p.642 lines 40 to p.645 line 26.
[275] Transcript 14 July 2023, p.648 line 29 to p.649 line 2.
The submission was also made that the paternal grandmother’s evidence was infected by her recounting of a version of the events of 1997 which the father did not repeat or adopt in the witness box.
In relation to the mother’s diary, it was submitted that a finding that it was prepared all at one time “wouldn’t be helpful” but “just doesn’t outweigh the volume of other material that is contemporary or contemporaneous…”.[276]
[276] Transcript 14 July 2023, p.649 lines 15-26.
In relation to Ms C’s evidence of no family violence it was acknowledged that this evidence could not be discounted, but it was noted they don’t live together and the mother submitted that this evidence from a new partner would not be sufficient comfort of a change of behaviour if the mother’s case on a long history of family violence was accepted.[277]
[277] Transcript 14 July 2023, p.650 lines 9-38.
It was submitted that the mother’s mental health was as diagnosed by Dr B. Further, it was submitted that the mother’s behaviours throughout the proceedings, including her non‑compliance with orders, were consistent with Dr B’s diagnosis in the context of the mother’s case that the court would accept her history of the father’s family violence.[278] It was submitted that, even though it was not said the psychological impact on the mother would justify a no‑time order absent unacceptable risk, that it is still a relevant factor to take into account in formulating orders in the child’s best interests.
[278] Transcript 14 July 2023, p.651 lines 24-26.
BEST INTERESTS OF THE CHILD
The paramount consideration is the child’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations, in order of weight, are firstly the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and secondly the benefits to the child of having a meaningful relationship with both parents.
Having reviewed and weighed all the evidence, I find that the father engaged in a persistent pattern of family violence against the mother, particularly in the context of alcohol use, and that this pattern of behaviour continued post-separation, substantially as alleged by the mother.
I find that the father’s behaviours included consistent denigration, verbal abuse, intimidation, destruction of property, threats of physical harm, threats of self-harm, low level physical contact and a pervasive pattern of coercive and controlling behaviour. This continued post relationship, with an attempt to deport the mother while retaining the child in Australia. I find that this was exacerbated by the father’s use of alcohol.
I give particular weight to the father’s concessions to Dr B. These concessions against interest are consistent with, and strong evidence in support of, the mother’s evidence and case of family violence. That is further supported by the mother’s contemporaneous and consistent complaints to her GP, Dr B, EE Hospital, FF Hospital, and Ms V, as well as the father’s concession to GG Family Services.
I consider the mother’s decision to go to a shelter whilst pregnant, entirely financially dependent on the father, without a right to stay in Australia, and socially isolated in a foreign country more consistent with the presence of family violence than with the execution of a long‑term scam. The communications between the mother, the father, and Mr T and Ms U at that time supports the mother’s version of events. I find that the mother’s declarations to migration authorities were consistent with her desire to stay in Australia with the father, and a hope that the father would change when the child was born. A not uncommon response to domestic violence by a vulnerable victim, regardless of migration or visa status.
I give no weight to the mother’s diary, and because of my grave concerns about the diary I give limited weight to the mother’s evidence, except to the extent her sworn evidence is consistent with the contemporaneous evidence. I make the finding of family violence on the weight of the overall evidence despite, and not because of, the mother’s diary and testimony.
The similarity between the mother’s complaints and the hearsay record of complaints of different former partners recorded in police records satisfies me that the father’s behaviours towards the mother were likely the continuation of long-term alcohol abuse and family violence behaviours he had engaged in with multiple people across an extended period of time.
The evidence of the father’s issues with alcohol before the relationship, his concessions about it to Dr B during the relationship, and his ongoing issues with alcohol post relationship, in concert with his denials of any issue, all satisfy me that alcohol misuse is established as a significant part of the father’s behavioural pattern and a significant contributor to his engaging in family violence behaviours. Further, that being unacknowledged and unaddressed, alcohol misuse and associated uninhibited and violent behaviours remain a significant risk issue.
I find that while the mother clearly selected the father as a partner because he lived in Australia, and because she wished to migrate to Australia, and that she suffered from childhood trauma as disclosed to EE Hospital which has contributed to her anxious personality, and probably made her particularly psychologically sensitive to the effects of the father’s family violence, that the father’s behaviours were not misinterpreted, nor misunderstood, nor overstated by her because they were seen through a prism of prior trauma. I find that the mother’s anxiety and psychological impairments are as diagnosed by Dr B, were likely pre-existing to some extent, but have been exacerbated by the father’s family violence behaviours.
I find that the mother’s decision to leave the relationship shortly after the child’s birth, despite the difficult socially isolated and financially dependent position she was in, was based on her lived experience of the father’s family violence and her genuine desire to ensure the child was not exposed to these behaviours and that risk, and to remove herself from this dangerous situation.
While I give weight to the fact that there is no evidence the father’s family behaviours have re‑emerged in his relationship with Ms C, the father’s complete denial of these family violence behaviours, or of his issue with alcohol use, and his refusal to accept any responsibility for his past behaviours, means that he is not likely to have made, or be willing or likely to make, long term changes to his behaviours.
I find that there is a high risk that the father will continue to misuse alcohol and to engage in the same family violence behaviours in future that he engaged in with the mother and prior to that relationship.
Consequently, I find that if the child spends unsupervised time with or has unsupervised communication with the father in future, the child is likely to be exposed to the father’s physically and verbally violent and threatening and psychologically harmful behaviours, including through coercion and control, as will the mother who will be required to deal with the father if the child spends time or communicates with the father.
If exposed to the father’s behaviours the child will be at significant risk of both physical and long-term psychological harm from being subjected and exposed to abuse and family violence, including long term coercive and controlling behaviours.
I find that the mother’s mental health will continue to be impaired by the requirement to maintain contact with the father, and that though she would cope with this, it is likely to have a negative overall impact on her parenting capacity.
While the mother has identified mental health impairments, and is socially isolated in Australia, there is no unacceptable risk to the child in her care. Further, her mental health is likely to be improved by not worrying about the safety of the child with the father, although her anxiety would be best dealt with through ongoing engagement with Dr B. I find that the mother has adequate capacity to provide for the needs of the child, including his emotional and intellectual needs. The mother has demonstrated a consistent focus on the child’s safety.
There will be a significant loss to the child in a no-time and no-communication order. The child clearly has a close and loving relationship with the father, and the risk of long term negative psychological impacts from the loss of the relationship with the father, and access to the social supports of the broader paternal family, are substantial. That risk of loss, however, is to be balanced with the need to protect the child from the risk of being exposed to family violence and the harm that likely brings.
The father, by reason of his propensity for family violence, is unable to provide for the child’s emotional needs and need for a safe environment. The father’s unwillingness to admit or address his alcohol and family violence issues demonstrates an attitude to the child, and to the responsibilities of parenthood, that prioritises his own desire to act as he will over the child’s needs for a safe environment.
The child has a good relationship with the father but is too young to express a reliable positive view nor to have any conception of the relevant safety issues.
The mother and child have a good relationship as do the father and the child, within the context of the child’s age and the circumstances in which he has spent time with the father.
Both parents have taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and to communicate with the child, to the extent possible within the context of the high-conflict circumstances in which the relationship exists. Each parent has fulfilled their obligations to maintain the child.
The complete termination of the relationship between the child and the father, at this age and given their existing good relationship, is likely to be a significant and emotionally damaging long term loss to the child. It is likely to affect the child throughout his life. He may blame himself for the loss. He may question why his mother acted to terminate the relationship. He will lose the balance a second parent and father provides. The extent of the likely psychological loss caused by this change of circumstances and the long-term psychological risks would be difficult to overstate. It is something to be contemplated only where no safe option for a relationship with the father exists. Unfortunately, by reason of the father’s conduct and refusal to accept responsibility for that conduct and change, that is the position the Court faces.
Further, deprivation of the paternal relationship will deprive the child of a potential relationship with his half-sister D, which is a most significant loss, and will also cause the loss of the access to a local support network the paternal family may provide, which is particularly significant given the mother’s and child’s familial social isolation in Australia.
There is no practical difficulty in the child spending time with and communicating with the father. There are no issues regarding the maturity, sex, lifestyle and background, including lifestyle, culture and traditions, of the child or either of the child’s parents, nor any other characteristics of the child, that are relevant and not considered elsewhere.
The order I make is the order least likely to lead to the institution of further proceedings in relation to the child. The history of the matter shows that the mother, reasonably, holds significant fears for the child’s safety in the father’s care. The father is likely to act in a manner which seeks to control and intimidate the mother. That conflict between them makes ongoing litigation likely on any orders other than those I make.
Considering the principles articulated in Isles & Nelissen [2022] FedCFamC1A 97, I find the likelihood of the harm being suffered by the child high risks and the magnitude of the likely potential physical and particularly psychological injury to the child if he spends any unsupervised time with the father, or has any unsupervised communication with the father, to like grave.
The only way to ameliorate that risk would be through indefinite supervision. No party suggested that such long-term supervision was a viable option. I do not consider indefinite supervision a viable option.
Accordingly, weighing all of the matters considered, I find that these risks are unacceptable.
In these circumstances, the child’s best interests require orders as proposed by the mother, that the child have no time with and no communication with the father.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility is rebutted by the findings of family violence. Given the finding that the father poses an unacceptable risk to the child, and that the child should spend no time and have no communication with the father, it follows that the child’s best interests require that the mother exercise sole parental responsibility.
ORDERS
I am satisfied that it is in the best interests of the child that the mother have sole parental responsibility, that the child live with the mother, and that the child spend no time with and have no communication with the father. The mother seeks a passport order which I will make.
Dr B should be allowed a copy of these reasons to assist in her treatment of the mother, which will assist the child, as should any other treater for the mother or child.
Any school or similar institution the child attends, or medical practice, should be allowed to be given a copy of the orders, but not the reasons. This is so that the restriction on the father spending time with the child is known to those whose care the child is in from time to time.
COSTS, INCLUDING INDEPENDENT CHILDREN’S LAWYERS COSTS
If any party seeks to make an application in respect of costs they may file an Application in accordance with the rules, otherwise each party shall bear their own costs.
Section 117 sets out the relevant factors especially at (2A) and (4) and (5). I note the observations of Justice Kirby in CDJ v VAJ (1998) 197 CLR 172, particularly the observations to the effect that generally one would expect that parents, rather than the community, should be equally responsible for the costs of a child’s representative where they are able to do so.
I certify that the preceding three hundred and eighty-seven (387) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 30 July 2024
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