Majid and Sunil

[2016] FamCA 274

FAMILY COURT OF AUSTRALIA

MAJID & SUNIL [2016] FamCA 274

FAMILY LAW – CHILDREN – Interim orders made pursuant to s 69ZR - Where the father seeks final parenting orders for gradually increasing periods of time with the children – Where the mother seeks sole parental responsibility and for the children to spend no time with the father – Where the mother seeks final parenting orders permitting her to relocate with the children to East Asia – Where the father has had no contact with the second child who was born after the parties separated – Where the mother makes allegations of family violence against the father – Where the mother alleges the father is involved in extremist activities, and has been involved in serious criminal activities – Where it is agreed that a determination is to be made in relation to the mother’s allegations to assist in making interim orders and making directions in relation to further evidence prior to determining the matter on a final basis –Where no findings can be made that the father has threatened or committed family violence or that the father has been involved in extremist activities – Where there is no unacceptable risk to the children seeing their father – Where orders are made for the father to have supervised time with the children at a Contact Centre – Where orders are made for the mother to file evidence in relation to her immigration status – Where the children’s names are placed on the Family Law Watchlist – Where orders are made preventing the removal of the children from Australia for a period of two years – Where orders are made for the appointment of a single expert and the preparation of a report.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Majid

RESPONDENT: Ms Sunil

INDEPENDENT CHILDREN’S LAWYER: Ms Carroll

FILE NUMBER: SYC 1273 of 2014

DATE DELIVERED: 27 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 - 13 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

SOLICITOR FOR THE APPLICANT: Hills Legal Group

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT: Godden Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. B born … 2012 and C born … 2014 (“the children”) spend time with the father each Friday for two hours at the Region K Children’s Contact Service (“the Contact Centre”) or on another day nominated by the service for two hours each week.

2. Each party shall:

   2.1.Contact the Contact Centre within 7 days and arrange an appointment for assessment of suitability for supervised time;

   2.2.Participate in the assessment;

   2.3.Comply with any appointments made by the Contact Centre for supervised time;

   2.4.Comply with all reasonable rules of the Contact Centre;

   2.5.Comply with all reasonable requests or directions of the staff of the Contact Centre.

3. If after the intake assessment procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in order 1, then each party has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court. 

4. The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party may re-list the matter for mention on seven (7) days written notice to the other party and to the Court.

5. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is to spend time with the children each Friday (or other day nominated by the Contact Centre) in each month for two hours at times nominated by the Contact Centre and such contact is to occur at the Contact Centre. 

6. The Contact Centre is to set times for the delivery of the children and the pickup of the children so that the parents do not come into contact with one another.

7. The mother is to deliver the children promptly at the time appointed by the Contact Centre and pick them up promptly at the time appointed by the Contact Centre and stay away from the vicinity of the Contact Centre between those times.

8. The father is restrained from coming any earlier to the Contact Centre than the time set by the Contact Centre and is to promptly leave the Contact Centre and its vicinity at the conclusion of the time set for the conclusion of the children’s time with him.

9. As soon as is practicable, the mother is to file evidence from an immigration lawyer setting out her legal status in Australia; the status of any appeal that she has brought against decisions relating to her immigration status and an opinion as to the likelihood, should the mother choose to do so, of the mother being able stay in Australia with the children.

10. Pursuant to Part 15.5 Family Law Rules 2004, the parties and the Independent Children's Lawyer are to confer and agree upon a single expert to prepare a report on matters relating to the welfare of B born … 2012 and C born … 2014. Unless the expert is of the view that it should not happen, the expert should see the mother and the children together; see the father; see and observe the children with their father; see the father together with his other children and his parents, if they remain members of his household. The report should deal with all matters the expert believes are relevant pursuant to s 60CC(2) and (3) Family Law Act 1975 (Cth) (“the Act”), including:

    10.1.The likely impact on each child in the short and long term of the parenting arrangements proposed by each parent;

    10.2.The likely impact upon the mother if orders are made that the children live with the father for gradually increasing unsupervised periods, which periods would culminate in the children living week about with each parent;

    10.3.The parenting capacity of each parent, including the capacity to provide for each child’s emotional needs;

    10.4.The parents’ attitudes towards the children and the responsibilities of parenthood.

11. The father shall, within 21 days, pay into the trust account of Legal Aid NSW the sum of $10,000 for payment by Legal Aid NSW to the expert in respect of his/her fees upon completion of his/her expert report.

12. In the event that there remains monies available subsequent to the receipt of the expert’s memorandum of fees these monies are to be returned to the father.

13. In the event that there is a shortfall the father is to pay such additional sum to meet the costs of the expert within 21 days of a request by Legal Aid NSW.

14. In the event that any of the parties request the Independent Children's Lawyer to make arrangements for the expert’s attendance at court for the purposes of cross-examination in this matter, the father shall be responsible for the expert’s costs in respect of such attendance.

15. The parties shall facilitate the preparation of the report including attending on and arranging for the children to attend upon the expert.

16. Leave be granted to the Independent Children's Lawyer to have photocopy access to material produced under subpoena for the purposes of providing the same to the expert and that the fees in respect of that photocopying be waived.

17. The court notes the Independent Children's Lawyer is under no obligation to brief the expert in accordance with these orders until there has been compliance by the father with Order 11 for the deposit of the sum of $10,000.

18. Until further order each party, Mr Majid born … 1975 and Ms Sunil born … 1982, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Act, from removing or attempting to remove or causing or permitting the removal of the said children B, born … 2012 and C, born … 2014 from the Commonwealth of Australia for a period of two years.   

19. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.

20. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1273 of 2014

Mr Majid

Applicant

And

Ms Sunil

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings relate to final parenting orders for the two children of the marriage, B, born in 2012 (currently almost 4 years old), and C, born in 2014 (currently 2 years old) (“the children”). The parents of the children are Mr Majid (“the father”) and Ms Sunil (“the mother”). The parents were married in East Asia in 2011. The parents then moved to South Asia where the first child was born. They moved to Australia in 2013. The parties separated on 20 November 2013 when the mother was pregnant with the second child. The father has not had any contact with B since separation. He has not met C.

2. The mother has made serious allegations against the father. The mother has alleged that the father has perpetrated family violence against her, his first wife and a child of the father’s first marriage. The mother has also alleged that the father has been involved in serious criminal activities. I accept that the mother believes most of what she asserts. The question is whether or not her beliefs have led her to embellish or invent evidence of the occurrence of these things.

3. It was agreed at the commencement of the three day hearing that given the nature of the issues and the time available, I should, pursuant to s 69ZR Family Law Act 1975 (Cth) (“the Act”), consider a determination of these issues on the basis that it may assist in the determination of a dispute in respect of what interim orders should be made in the children’s best interests and what directions should be made relating to the further evidence that is needed to determine the matter on a final basis.

APPLICATIONS

1. The father filed an Initiating Application on 6 March 2014 seeking that B live with him and spend time with the mother as agreed between the parties. He has now amended his application to seek orders on a final basis for gradually increasing periods of time with both children, so that ultimately from the date C reaches four years of age, both children will live week-about with each parent.

2. The mother seeks orders on a final basis that she have sole parental responsibility for the children and that the children spend no time with the father. The mother also seeks final orders that would permit her to relocate with the children to East Asia.

DOCUMENTS RELIED UPON

1. The applicant father relies on the following:

   6.1.Amended Initiating Application filed on 7 September 2015.

   6.2.Affidavit of the father filed 11 October 2015.

   6.3.Affidavit of father filed 7 September 2015.

   6.4.Affidavit of father filed 9 September 2014.

   6.5.Affidavit of Ms D filed 9 September 2014.

2. The respondent mother relies on the following:

   7.1.Response filed 23 June 2014.

   7.2.Notice of Child Abuse, Family Violence filed 23 June 2014.

   7.3.Affidavit of the mother filed 11 September 2014.

   7.4.Affidavit of the mother filed 10 August 2015.

3. The Independent Children’s Lawyer relies on documents contained in the Independent Children's Lawyer’s tender bundle (Exhibit 1). There were other exhibits and reference was made to an affidavit the mother filed on 23 June 2014.

SHORT HISTORY

1. The father was born in 1975 in South Asia and is currently 41 years old.

2. The mother was born in 1982 in East Asia and is currently 33 years old.

3. The parties married in East Asia in 2011. The parties married in a religious ceremony. At that time the father was still legally married to his first wife, Ms D. The father and Ms D have four children together.

4. The parties’ first child, B, was born in 2012 and is currently almost 4 years old.

5. On 10 February 2013 the parties, B, and the father’s other four children travelled to Australia on tourist visas. They have lived continuously in Australia since that date. Ms D came to Australia on 17 November 2013 and resided in the same home.

6. The parties separated on 20 November 2013 when the mother left the home with B. Ms D continued to reside with the father until she left Australia on 1 August 2015 leaving their four children with him.

7. The parties’ second child, C, was born after separation in 2014 and is currently 2 years old. C has never met the father.

8. The father commenced proceedings on 6 March 2014.

CREDIT

Father

1. The father gave evidence with the aid of an interpreter and his ability to communicate in English is poor. He presented as being more sophisticated and more worldly than the mother. The father had some difficulty in answering questions directly and on occasions had to be asked a question more than once.

2. The father has been convicted of a crime of dishonesty in East Asia.

3. The father was asked about [27] and [28] of his primary affidavit where he set out his criminal history. The father accepted that he prepared the affidavit with his lawyer without the assistance of an interpreter but understood that he had to tell the truth. The father was asked about the time he spent in gaol in East Asia for using counterfeit currency in December 2008. The father said he spent 1 year and 3 months in goal but said he was found innocent because he was released and then appealed the decision.

4. The father was asked why he had not told the court about his criminal history when filing his first affidavit with the court. The father said he did not know he had to put his criminal history in that document. He said he followed his lawyer’s advice.

5. The father conceded he had not told the Department of Immigration about his criminal history. His reason for not doing so was because in his view he “didn’t commit the crime”; he went to jail “in an unfair case.” The father conceded he had also ticked the boxes to answer “no” on his Application for a Protection Visa which asked whether he had been convicted of a crime or offence in any country, or whether he had had proceedings brought against him in any country and whether he had been in jail. The father said his lawyer advised him to tick “no” and explain his case during the interview. The father did not do that in his first interview with the Department but now says that he told the AAT during the review. I find the father deliberately made false statements about his criminal history to the Department.

6. The father lived in South Asia until he was about 20 years of age when he went to live in East Asia. The father gave evasive evidence in relation to questions about being involved in extremism as an adolescent. He seemed to avoid the question initially but when pressed indicated that he had no connection with extremism whilst he lived in South Asia. The father however travelled extensively to the Middle East and Asia after he became a resident in East Asia. The history of his movements was not particularly clear.

7. The father gave contradictory evidence about whether his first wife gave him permission to marry the mother. In the father’s Application for a Protection Visa, the father wrote in relation to his second marriage:

   After a few year i have married again to a [East Asian] lady with the permission of my first wife.

   In oral evidence the father said that was a correct statement.

8. That statement conflicts with:

   24.1.Paragraph [21] of the mother’s affidavit of 10 August 2015 where she says that the father showed her a letter prior to their marriage which Ms D had purportedly written, stating “I am very happy for you to marry a second wife. I would be ready to accept her into our family”. The letter was signed “[Ms D]” and dated September 2011.

   24.2.Ms D’s evidence:

   I agree that I moved to [East Asia] from [South Asia] in or around February 2013 however I kept in constant communication with my children during this time. I was granted a divorce from [the father] in [East Asia] on 29 May 2014. I divorced [the father] because I was hurt he had a second wife.

   24.3.Ms D also says that she was introduced to the mother in South Asia in or around 2011 when they were both living there. She believed at that time that the mother was [a tutor] as she taught Ms D’s four children .... Ms D was not aware at the time that the father was involved with the mother and only discovered that they were married after the mother became pregnant.

9. When asked to explain why Ms D would say that she was hurt because the father had a second wife, if she had in fact given permission for the father to have a second wife, the father said that although she permitted him to re-marry she was never certain he would. That answer was not satisfactory.

10. When pressed, the father agreed that when he introduced the mother to Ms D, he introduced her as a tutor. He also accepted the proposition that Ms D had only discovered that the mother and he were married after the mother had become pregnant. That is not consistent with the father’s statement that Ms D had given permission for them to marry. On balance, I find the father gave untrue evidence when he told me Ms D had given him permission to marry the mother.

11. The father conceded during oral evidence that he declared himself bankrupt in East Asia when he was residing there. He said he had owned no property in East Asia since becoming bankrupt. However, the father told the Department of Immigration during his interview on 28 October 2013 that he owned property in East Asia. When asked to explain the inconsistency, the father said that the house had since been sold, but his explanation was unsatisfactory.

12. When asked during cross examination about the mother’s allegations that the parties used to meet credit card brokers in Southeast Asia, the father said that the person the parties met was someone the father did business with. When asked what business the father conducted, he said he had a business where he would buy used goods in Southeast Asia and sell them in South Asia. He said he would also buy groceries from Southeast Asia to use at his grocery store in East Asia. The father clarified in his oral evidence that the reason he had a friend in East Asia who owed him $25,000 was because he said it was common practice in East Asia to take items from the grocery shop without paying. He said lots of people owed him money. I have no idea if any of what the father says about his business dealings is accurate.

Mother

1. The mother gave evidence with the assistance of an interpreter.

2. The advocate for the Independent Children's Lawyer made the following submissions in relation to the mother’s credibility:

   30.1.The mother has difficulty with written English.

   30.2.The court should allow for difficulties with interpretation.

   30.3.The mother’s affidavit material was based on a statutory declaration she prepared without the assistance of an interpreter (Exhibit 2).

   30.4.The mother’s oral evidence is more reliable than her written evidence. Her oral evidence was considered, although she had difficulty understanding some questions.

   30.5.The mother came across as naive, unsophisticated and influenced by what she heard people say or what she saw in mass media.

   30.6.The mother did not deliberately exaggerate her evidence. Her intention was not to be malicious and she was not deliberately evasive, but her answers suggest she is unsophisticated when it comes to an understanding of world issues.

1. The Independent Children's Lawyer conceded however that there has been an unfortunate volume of official records that have been generated relating to the father that paint him in a very black light and that the source of most of that information has been the mother and the mother now concedes that a lot of that information is inaccurate. I conclude that the mother deliberately exaggerated statements about the father to people in authority.

2. For example, [37] of the mother’s affidavit filed 23 June 2014 is in the following terms:

   Whilst I was in [South Asia] I witnessed a woman’s face burned with acid and had her nose and ears cut off by her husband. At the time [the father] said to me words to the effect of “She deserved it, she needs to respect the man”.

3. Initially in oral evidence the mother was asked whether or not she wanted to add or change anything that was in that paragraph. She said “It is very common in South Asia that those things happen”; “I learnt this from news and locals”. The mother was asked by me whether or not she had the conversation with her husband as set out in the second sentence of [37] and she indicated that she had not and that what was written in the second sentence was “distorted”. She also said this was a “mishap”. I have difficulty in accepting that the second sentence of [37] of the mother’s affidavit of 23 June 2014 which has the father expressing to the mother his opinion that women who are mutilated, deserved it, was not deliberately intended by the mother to create a highly prejudicial view of the attitudes that the father held towards women.

4. The mother had consistently given the same story in documents that she had prepared in her dealings with the Immigration Department in relation to her Application for a Protection Visa. The mother signed a statutory declaration on 16 January 2014. At page 8 of the statutory declaration, the mother states:

   I’m still worried about me and my daughter’s safety. My husband is [South Asian]. I experienced [South Asia] culture while in [South Asia] 2011 year. I have been seeing woman burning face with acid and cutting nose and ears by husband. Plenty of husband’s commits Domestic Violence and it is accepted in [South Asia] custom and culture.

5. The mother agreed that she was trying to convey to whoever read this document in the Immigration Department that she had seen women with burning faces from acid, cut noses and ears by husbands in South Asia and she conceded that was not true.

6. The mother was then taken to page 164 of Exhibit 1 which was her Application for a Protection Visa. At question 45 of that document, the mother is asked to respond to the question “What do you fear may happen to you if you go back to that country [East Asia]?”. The mother provides, inter alia, the following information:

   Due to me escaping the Domestic Violent Relationship with my husband I am concerned for the safety of myself and my daughter as my husband has previously threatened that if I leave and return to [East Asia] that his friends residing in [East Asia] would harm and even kill me.....

   I believe my husbands threats to arrange friends to harm me was genuine as I have witnessed women being tortured by Acid Attacks to their faces, ears and nose dismemberment and other physical assaults for leaving a relationship. I have also experienced ongoing violence of sexual and physical assaults from my husband up until I escaped the relationship.

   Although the mother did not have the assistance of an interpreter in completing this document, the mother indicated that she had sufficient ability to read the English language to know those words were written on the form in January 2014. The E Migration Service had assisted her with some grammar. The mother conceded that she understood that she was conveying to the reader of that document that she had personally witnessed women being tortured in South Asia. Again, she agreed that was untrue.

7. The mother now concedes that her knowledge of these events happening in South Asia only came to her third hand through mass media and “locals”. The mother has clearly represented in three different documents that she was an eye witness to women who had been tortured, dismembered and physically assaulted for leaving a relationship with their husbands. It is clear that that was a misrepresentation by the mother in those three documents. I am not prepared to accept that these consistent statements by the mother in these three documents are somehow able to be explained away because of language difficulties that led to “distortions” or by suggesting they all emanated from an original document which was prepared without the assistance of an interpreter.

8. There is some inconsistency between [17] of the mother’s trial affidavit and her oral evidence. In her oral evidence, the mother referred only to one credit card broker who the parties had travelled jointly together to Southeast Asia to see on approximately two occasions. In her affidavit the mother refers to credit card brokers both in China and Southeast Asia. When tested on this, the mother said that the person they saw in China was a “fraud partner and [extremist]” and not a broker. I am unable to say the father was involved in any fraudulent activities with a person from China or that the father was involved with extremists.

9. Apart from allegations involving sexual interaction with the father, there is one occasion only, in June 2012, where the mother alleges that she was physically assaulted by the father. She sets out what she says happened in [28] of her affidavit. In that affidavit she says:

   [The father] slapped me across the face twice with an open palm and began to hit me with a closed fist over my face and head.

10. In her oral evidence, the mother said that the first part of what she asserted was accurate but the second was not. She maintained that she was slapped across the face twice with an open palm but her evidence was that she was never hit with a closed fist over her face and head. She amended that to say that they had a physical altercation where they were pushing and pulling one another. I asked the mother how it could be that in a document (which was two months old) and had been fully translated to the mother by a qualified interpreter, she could have left in the affidavit an assertion that on the only occasion when the father had hit her, that the father had “hit her with a closed fist over her face and head”. Her response was that Legal Aid just had 30 minutes to one hour of time and that the interpreter had to interpret very quickly, she had her baby with her and when the baby was crying or irritable she could not give full attention to the translation. I found that an improbable and less than satisfactory explanation for incorrect sworn evidence concerning a central allegation made by the mother against the father.

11. The mother was asked questions about [38] of her trial affidavit where the mother gives a version of an assault that she says she witnessed the father perpetrate upon Ms D, his first wife. The mother was asked to repeat her version of that incident orally. The mother at no stage when recounting the incident said, as she had in her written evidence, that the blows by the father to Ms D with a closed fist were followed by Ms D falling to the floor and saying particular words to the father. When the mother was invited to remember whether or not Ms D was standing, seated or on the floor when she said these words, the mother said she thought she was standing. That is in direct contradiction to the mother’s version in her trial affidavit.

12. The mother was given an opportunity to try and reconcile the two versions and the mother provided the following explanation:

    That initially they had the argument while standing up and later [Ms D] was trying to protect and defend herself and the father was dragging her so she fell to the ground in the process and when she got up again they had another episode.

13. That explanation contains a third version of the event. The mother did not talk about the father dragging Ms D so she fell to the ground in her affidavit. In her affidavit, the mother’s version is that Ms D fell to the ground upon being beaten by the father with a closed fist.

14. The advocate for the Independent Children's Lawyer submitted that allowances have to be made in the mother’s evidence for difficulties with interpretation and reality being lost in that process. The Independent Children's Lawyer also submitted that the exaggerated evidence given by the mother was not deliberate. As I have indicated, I do not accept the submission that the mother was naïve when on multiple occasions she made very serious allegations about the father. She hoped that her statements would be sufficiently alarming so that neither the authorities nor the court would assist the father in any way. She was responsible for telling the authorities that the father had threatened her with acid to the face and mutilation to the face when he had not made those threats at all. She also said that she had actually seen acid attacks in South Asia and she had not. None of this was true.

Conclusion in relation to credit

1. I have grave concerns about the credibility of both parents. I am not prepared to accept one parent’s version over the other unless there is some clear corroborative evidence or one version is inherently more likely.

THE ALLEGATIONS MADE BY THE MOTHER

Has the father been involved in extremism?

1. The mother alleges that when she met the father in 2010 he would say to her words to the effect of “When I was a teenager in South Asia I was in the [extremist group]. You know the [extremist group]? I was involved with them, but my parents told me I should quit” and “One of my friends from the [extremist group], he hijacked a plane in [Asia]”.  The mother says that during a trip to China in October 2010 the father spoke of “[extremism]” and told her “we must fight against [Country F]. They are the true evil. We must do our duty and take part in [extremism]”. Around this time the mother says the father justified credit card fraud by saying to her “The [Country F] create this credit system and make money to support the [Country F] army who fight [Country G]. We need to make fraud to undermine their system!”

2. The mother said that this conversation took place in a period of time between when she first met the father and when they commenced a romantic relationship.

3. During oral evidence, the mother was initially asked whether or not she understood what the extremist group was and she said she did. Subsequently, when asked why she took up with the father if she knew this history, the mother said that “at the time I did not know much about [the extremist group] and some of the people living [a religious life] support [the extremist group] and some of them seem to say they are bad. So even now I am not quite sure. At the time I couldn’t say whether this group was right or good”.

4. In or around October 2012 the mother says the parties had further conversations about the extremist group. The mother says the father told her “If anyone goes against the [the extremist group], they deserve to be killed” and in relation to the assassination of women he said “Women shouldn’t dabble in politics and if they do, this is what should happen to them”.

5. After the parties’ separation, the mother gave information to the police in relation to possible extremist activity by the father in as much as she alleged to the police that the father had been sending monies to a person in South Asia who had been involved in what she referred to as extremism. The mother’s position in relation to these matters was that it was her belief that because of the father’s “cultural background” he may be capable of honour killings and female mutilation. The mother said she currently held the view that those things were possible behaviours that the father could perpetrate.

6. According to the mother, the police who interviewed her at the Suburb H refuge took her mobile phone away because the father had from time to time used her mobile phone and according to the mother had changed SIM cards in and out of the mobile phone. I infer that the police, and possibly security organisations in Australia, having been alerted to the possibility that the father was sending money to extremists overseas, have explored the electronic records maintained by the father. No action has been taken against the father. I infer that nothing has been discovered that would connect the father with sending monies to any extremist organisation or any person involved in extremism overseas.

7. There is no evidence upon which I could conclude that the father has been involved in any extremist activities.

Honour killings

1. There is a record (page 141 of Exhibit 1) in the records of the Department of Family & Community Services that somebody had given that Department information that the mother was at serious risk of possible harm and that she was escaping threats made by the father of an honour killing and that he would throw acid on her. The note also says that the father was being investigated for extremism. Further, that the father was threatening to get other people involved (in the honour killing of the mother and throwing acid on the mother). The mother said that the father had never made any comments to her about honour killings and confirmed that he had never said nor ever made threats about throwing acid on her. I give no weight to the Departmental record that the mother might be at risk of an honour killing at the hands of the father.

Sexual Intercourse Without Consent

1. In July 2012 the mother says the parties had non-consensual intercourse. She said she had protested because it had not been 40 days since she had given birth.

2. The mother says in May 2013 the father pushed her against a wall and forced her to have sexual intercourse. She said she resisted.

3. In June 2013 the mother asserts she was forced to have sexual intercourse on two occasions without consent. On one occasion she was pushed onto a bed by the father in a sexual position. On another occasion the mother had an infection. The father put cream on his penis and inserted it into the mother against her will.

4. The mother also says the parties had sexual intercourse without consent in July 2013.

5. In August 2013 the mother says the father attempted to have sexual intercourse with her in a carpark without consent but she escaped into a shopping centre.

6. In early October 2013 the mother says the father grabbed her arm, held her down and had sexual intercourse with her without consent. The next day the father pushed the mother into his parent’s room and had sexual intercourse with her without consent.

7. The mother says in early November 2013 the father had sexual intercourse with her without consent in front of B, who was about 18 months old at that time.

8. The mother says on either 18 or 19 November 2013, because the father persisted in requesting that she have intercourse with him, she reluctantly complied.

9. In relation to the allegations of sexual abuse, the mother said in oral evidence that between May 2013 and November 2013 the parties had sexual intercourse on 30 to 40 occasions and between 22 and 33 of those occasions was without consent. The mother said the father talked about sex every day. She says the father made her feel like a “sex slave”.  The mother said that the only reason the father visited her following B’s birth (when she was living in separate accommodation to the father) was to have sex. She says that the father visited her almost every day for a year. She said they had sexual intercourse almost every day and almost all the occasions were non-consensual.  I found it inherently unlikely that the father had forced intercourse on the mother each day for a period of almost a year in circumstances where the mother did not ever mention that before she said it in the witness box.

10. The father denied the mother’s evidence about forced sexual activity and suggested during oral evidence that it was the mother who was asking him to be involved with her in sex. In submissions, the advocate for the Independent Children's Lawyer placed no emphasis upon any of these allegations by the mother and I am also unable to accept the mother’s assertions in relation to forced sexual activity as being truthful.

Other family violence

1. In June 2011 the parties had a verbal argument in their apartment in East Asia. The mother told the father “…I want to end our relationship, I am very unhappy and do not want to be with you anymore”. The mother says the father stood up and walked out of the room and into the kitchen. He returned a few moments later holding a kitchen knife to his wrist saying words to the effect “Don’t leave me, [Ms Sunil], I’ll die here if you leave me! I can’t live without you [Ms Sunil], if you ever leave me I will kill myself!”. The mother says she asked the father to put the knife away but the father continued to hold the knife against his wrist and said “Promise me, promise me you won’t leave me or I’ll kill myself”.  The mother was asked questions about this incident. In her oral evidence the mother had difficulty recalling part of that evidence but eventually was able to say that apart from the knife that she took from the father she also collected two or three other knives from the kitchen. She threw all these knives out the window of their high rise apartment (she was unsure as to what level the apartment was on). When asked about whether she thought that was a very dangerous thing to do, she indicated that she took a quick decision in the circumstances on the basis that she thought that it was important for there to be no dangerous knives left in the apartment at that time. Given the pressure of the situation that the mother describes, I do not find the evidence that she threw knives out a window (even though it may have been a dangerous thing to do) as inherently unlikely.

2. The father denies this incident. His assertion is that the parties had an argument/conversation about the mother’s wish to return to her mother’s house to placate her mother. The father’s version was that in the end they reached an agreement that she would go back to her mother’s house for a few days and that happened and he then went and picked the mother up from her mother’s house. That version was not put to the mother during cross examination.

3. In late October 2011 the mother alleges the father told the mother’s mother that he would kill himself if he could not marry the mother.

4. In May 2012 the mother says the father taught his sons (of his first marriage) to correct their mother by hitting and kicking her.

5. As referred to above, in or around June of 2012 the parties had a disagreement where the mother initially asserted that the father slapped her across the face twice with an open palm and began to hit her with a closed fist over her face and head. The mother ran into her bedroom and locked the door. She telephoned the wife of the Chairperson of the East Asian Association of South Asia. During oral evidence the mother said the father did not hit her with a closed fist over her face and head. The Independent Children's Lawyer submitted that I could accept that this incident of violence happened based upon the mother’s oral evidence because during oral evidence the mother could without hesitation say which side of the face she was hit. I cannot accept the mother’s oral evidence when it is substantially at odds with two other different versions which the mother has given (discussed above).

6. As referred to above, in mid-December 2012 an incident took place where the mother says the father beat his ex-wife with a closed fist. The mother alleges Ms D said to her words including “The fights are getting worse. He beats me…He doesn’t let me do anything. I have no medical treatment unless he beats me so badly I need stitches which has happened before”.

7. It is alleged by the mother that in January 2013 the father slapped his 13 year old son across the face a couple of times. The mother gave oral evidence that was relatively consistent with her affidavit evidence, although she added the additional information that the father’s son was wearing glasses at the time and the glasses came off his face. This is consistent with the mother’s demonstrated ability to embellish her evidence to the father’s detriment.

1. The mother was asked about what happened on the day she separated from the father. The mother gives evidence that on 20 November 2013 she finally left the marriage (see [83] to [86] of her trial affidavit). On 20 November she says that she witnessed (in oral evidence she said she meant by that, overheard voices) of the father and Ms D having an argument. She decided at that time that she would leave. She said that the father knew that she was leaving the house. She did not tell him however that she was taking their daughter. She did not tell him that she had arranged for her only friend to pick her up from Suburb I railway station.

2. The father came to the friend’s property at 8.30am on the following day. The police were called. The mother was asked questions about the COPS entry for 21 November 2013 (page 101 of Exhibit 1). She agreed that she did not say anything to the police about her husband being violent towards her. She was asked if she told the police that she left the house because of the argument between the father and Ms D and she said she did not think she mentioned it but she could not remember. She agreed she did not tell the police about the father hitting Ms D. She agreed she did not tell the police about the father hitting his son and she agreed she did not tell the police on that day about the father forcing her to have sex against her will. She agreed she did not tell the police on that day about the father’s involvement in extremism and criminal activities and she did not tell the police she was scared for herself or her child. She then provided the following explanation as to why she had not explained to the police that the father’s violence was the reason why she said she had left:

   At time I was still waiting for a protection visa. I thought if I told police it would be detrimental to visa. Also if I told everything to police and [the father] knew that, this might infuriate him further, I was just avoiding him

3. However, that was not the only explanation the mother gave as to why it was that when the police first spoke to her she did not raise any issue in relation to the father’s behaviour. On a different occasion she said it was because the first wife and the children were still in the father’s home and she didn’t want to put them at risk. On another occasion she said that she had been crying since she was at her friend’s house for two to four hours and it wasn’t until she got to a refuge and was seen by the police at a later date, that she was able to tell them about the family violence that had existed in her relationship with the father.

4. The mother agreed that the letter she had written to the father a few days after the separation was in friendly terms and she explained that she had couched it in those terms because she wanted to settle the father down.

5. On Monday 25 November 2013 the police attended the women’s refuge at Suburb J where the mother was staying with the eldest child of the marriage. At that time she told the police that she had been in an abusive relationship with her husband and that he would “pressure her into having intercourse and demand she do so as it was a duty of her as a wife”. She also told the police that the father had “assaulted her in the past, when they had lived in [South Asia]”. Pausing there, as set out above, unless the mother was talking about forced sexual contact, there is only one occasion the mother alleges she was physical assaulted by the father and it did not happen in South Asia. The mother also gave information to the police that the father had previously purchased items using a fraudulent credit card and sold the items in various countries for money and had previously credited fraudulent travel documents. As a result of these assertions, detectives were asked to become involved in the investigation of the father and attended upon the mother. The COPS entries record “further enquiries were made, which resulted in no offence being disclosed which occurred in Australia”.

6. The mother was asked about page 171 of Exhibit 1 which is her Application for a Protection Visa. In answer to the question, ‘what do you fear may happen to you if you got back to that country ([East Asia])?’, the first part of her answer is “Due to me escaping the Domestic Violent Relationship with my husband I am concerned for the safety of myself and my daughter as my husband has previously threatened that if I leave and return to [East Asia] that his friends residing in [East Asia] would harm and even kill me”. The mother said that the statement that the father had threatened to do these things was incorrect. She did however say that she had in her mind that he may well do these things. She believed that there were people in East Asia in prisons that the father could use to harm her.

7. The mother was then taken to [31] of the statutory declaration the mother had signed on 16 January 2014. Paragraph 31 is in the following terms:

   My husband has contacted my family by phone in [East Asia] and threatened them for my location. This has also made it unsafe for me to return to [East Asia] as he may physical harm my family for my location in [East Asia].

8. In her oral evidence the mother said that that was incorrect and that in her conversations with her mother, her mother did not indicate that the father had threatened her mother but rather had been persistent in attempting to find out information about her whereabouts.

9. The mother was then asked about her statement in [32] where she alleged that the father had contacted and threatened a friend in Sydney for her location. Again she said that the word threatened was an inappropriately used word and that the father had simply contacted her friend in an attempt to find out information about where the mother had gone.

Conclusions about family violence

1. It was submitted by the advocate for the Independent Children’s Lawyer that on the evidence before the court, the court could not be safely satisfied to make positive findings in relation to any of the mother’s allegations (other than the time the mother says the father slapped her across the face twice and I am not even prepared to make a finding that that occurred).

2. The evidence in relation to family violence, including sexual assault, comprises only evidence from the mother and father. The mother agrees that some of what she has alleged against the father, as detailed above, is false. Other allegations by the mother (for example, twelve months of daily forced intercourse) are inherently unlikely. As for the balance of the allegations, there is no corroborative evidence and it comes down to the mother’s word against the father’s.

3. I am unable to make any findings in the mother’s favour arising out of any of the assertions made by the mother in relation to the father’s violence against her. I accept the Independent Children's Lawyer’s submission that there is no unacceptable risk to the children seeing their father arising from the allegations of family violence or extremism or jihadist behaviour.

The father’s criminal activity

1. There was a series of questions asked of the mother about [31] to [33] of the mother’s affidavit. This evidence is to the effect that the father was in a South Asian gaol for 15 days. In her oral evidence, for the first time, the mother provided the additional information that the father had told her that he had got out of the gaol because his mother had paid officials a large sum of money by way of a bribe. The father denies that he has ever been in a South Asian gaol. I am unable to give any weight to the mother’s evidence without corroborative evidence.

2. The mother was responsible for telling the authorities that the father had a criminal background. The mother alleges the father was sent to gaol. When asked about this in oral evidence the mother said she had this belief because of a “gut feeling”. There is no evidence for these allegations.

The mother’s beliefs

1. I accept that the mother genuinely holds the beliefs set out above. However, I find that the mother has deliberately embellished some of what she has told various authorities in attempts to ensure they also hold the same beliefs that she holds about the father.

2. During her interview with the family consultant, the mother expressed considerable concern about the father’s capacity as a religious fundamentalist to care for the children or attend to their needs. She used the phrase “gendered racism” when talking about the father’s view of women as inferior and subordinate to men.

3. The mother indicated that she believed that the father’s first wife developed a psychological illness prior to her leaving Australia and she criticised the father for not doing anything to obtain medical treatment for the first wife but this was in circumstances where the mother also gave evidence that she had not had any conversation at all with the first wife since the date of separation.

4. The mother is of the view that if the children have contact with the father they are at risk of being psychologically abused and neglected by the father. The mother was asked how she believes she would react if the court made an order that the children spend some time with their father. The mother responded that she would be devastated and in those circumstances all that she could do was pray for their protection.

5. At the end of the first stage of this hearing in October, I made an order that the mother file and serve a report from the mother’s treating psychologist within 14 days. That affidavit was not filed until February.

6. The order was in the following terms:

   1.    Within 14 days the mother file and serve report from mothers treating psychologist about:

   1.1.The effect on the mother’s parenting capacity of an order that would allow the children to see their father in a controlled situation at a contact centre for two hours each week in circumstances where the treating psychologist is to assume that:

   1.1.1.There has been a finding made that the father poses no unacceptable risk to the children;

   1.1.2.There has been a finding that there is no unacceptable risk that most of the serious allegations made by the mother against the father are true;

   1.1.3.The mother’s fears about the father are unreasonable even though they might be genuinely held.

   1.2.How the treating psychologist could assist the mother in coping and dealing with the father spending a couple of hours with the children in a supervised setting each week.

7. Ms J, the mother’s psychologist, had initially seen the mother in November 2014 for counselling by the Victims Services Approved Counselling Scheme for trauma related counselling associated with her assertion that she was a victim of domestic violence.

8. Ms J said that the mother had told her that if contact took place in a controlled situation at a contact centre it was “less risky” for her as the mother thought that that would ensure that the father and his extended family would not have her address. The mother was concerned that the father or “one of his contacts” could attempt to follow her after contact had occurred, although the mother agreed with Ms J that that risk could be reduced by various strategies such as ensuring both parties attend and leave the centre at different allocated times.

9. The mother told Ms J that she acknowledged that the father did not pose an unacceptable risk to the children in a controlled situation at a contact centre. The mother did however say that she was concerned that the father may “teach their daughters that his culture, the [South Asian] culture is the better way”. The mother repeated to Ms J the assertion that South Asian women have no rights; that they were always lower than the husband and that it is considered ok for a man to smack the wife and that women are told to expect that. The mother asserted that the father and his family, “do not accept Australia’s multicultural nature”.

10. The mother is also apprehensive about the father’s willingness to participate in parenting workshops/training and children’s playgroups (the mother asserting that she herself has involved herself in such beneficial therapy).

11. Ms J reports that the mother still has significant anxiety if the court were to proceed to unsupervised contact because it would be more difficult for her to ensure her own safety. The mother told her that her anxiety was based upon the father’s behaviour during the “years they were together and witnessing his manipulative and disrespectful behaviour to others”. Ms J reported that those behaviours included witnessing his psychological abuse to women and “smacking his sons across the face; this is accepted parenting in [South Asia]”. The mother also reported to Ms J that she was fearful that if the father found her “he would try to send her back to [East Asia] without her children”. She also had a fear that the father may attempt to “abduct the children and leave the country with them”. She agreed that this anxiety would be significantly reduced if the children’s names could be placed on the Family Law Watch List. 

12. Ms J said that she could assist the mother in coping and dealing with the father spending a couple of hours with the children in a supervised setting each week through ongoing counselling and support. That would include reviewing the mother’s perceptions of her own and the children’s safety when attending and leaving the centre and subsequent strategies to improve her feelings on safety.

13. The mother’s psychologist said that during counselling sessions, the mother can be encouraged to increase her social and community involvement and to develop a range of anxiety management and coping strategies.

14. Counselling will continue to focus on addressing the mother’s current symptoms. The mother has already had 11 sessions and is enthusiastic and committed to continuing to participate in counselling. Ms J describes in her affidavit the type of counselling that she has in mind for the mother.

Best Interests

1. The children are currently primarily and only attached to their mother and are dependent upon her.

2. The mother expressed to the family consultant that she thinks it is unlikely that there is any relationship, meaningful or otherwise, between B and her father due to it being so long since B saw her father and her young age. The father also expressed doubt that B would remember him or the paternal family.

3. It was submitted by the advocate for the Independent Children’s Lawyer that despite a finding that there is no unacceptable risk, it would not be in the best interests of the children to commence time with the father, even on a supervised basis. Submissions were made that the children are very young, have no existing relationship with the father and no memory of him. The advocate for the Independent Children’s Lawyer was concerned that the mother was completely unprepared for the commencement of any time. It was submitted that the court has no evidence as to how such orders would affect her. Alternatively, it was submitted that if the mother had a prima facie case to relocate to East Asia, to commence time with the father, and for that time to then be stopped, would be detrimental to the children’s best interests.

4. The seriousness and practicability of the mother’s application to relocate to East Asia is still to be explored at the final phase of the hearing. I will be assisted by some expert evidence from an immigration specialist as to the likelihood of the mother being able to remain in Australia.

5. The mother asserts that in East Asia, because the marriage would be seen as illegitimate, she would have parental rights but those rights would not exclude the ability of the father to have some time with the children.

6. The mother was asked why she was proceeding with her appeal against the disallowance of a protection visa in circumstances where it is her position that she wants to be able to return to East Asia with the children. Her answer was that she had been given advice that she might end up, or more importantly, the children might end up in a detention centre pending her deportation. The father’s view is that she is not serious about wanting to go back to East Asia. There is in fact an arrest warrant for the mother outstanding in East Asia. The mother said that if she went back to East Asia and was arrested then the children would go to her parents who are in their 60’s and with whom she has previously had friction over her conversion to the father’s religion. She said that she would not be able to practice her religion in her mother’s household.

7. I am unable at this time to make any assessment as to the seriousness and practicability of the mother’s stated intention that she wishes to relocate to East Asia with the children. I do not accept the Independent Children's Lawyer’s submission that until that matter is determined, it is in the children’s best interests for the children not to have any contact with their father whatsoever.

8. The father expressed a desire to the family consultant to meet C and to have C meet her half siblings.

9. The family consultant expresses the view that if the father has behaved abusively towards, or poses a threat to, the mother or children, then appropriate precautions would need to be taken in relation to his reintroduction to the children and time with them, if any. On the other hand, if the mother’s allegations are unsupported or are found to have been exaggerated or fabricated, then the family consultant opines that this raises concerns about her mental health and her ability to place the needs of the children above her own needs. It would also raise concerns about her capacity to support and facilitate the children building and maintaining relationships with their father, or for the mother to appreciate the positive long-term benefits of such relationships to their ongoing development.

10. As is clear from the findings set out above, there is a concern raised about the mother’s capacity to support and facilitate the children having the benefit of a meaningful relationship with their father.

11. The father currently resides in a five-bedroom home with his other four children and his parents. He says that he is the primary carer for his other children. He also works full time from home. The father said he would be willing to drive to spend time with the children. He intends to eventually also bring his four children to supervised time as well.

12. The mother has seen a psychologist about 11 times from when she commenced at her current refuge to the present date, a period of approximately over one year (she has been in the current refuge since May or June last year).

PROPOSED ORDERS

1. The Independent Children's Lawyer’s submitted that if there is some possibility at the end of the final hearing that the mother will be allowed to go back to East Asia with the children and all contact with the father is lost, then it is better to have not reintroduced B and introduced C to the father. This submission was made prior to receipt of the evidence from the mother’s psychologist.

2. I am unable to accept the recommendation by the Independent Children's Lawyer that no order should be made for the children to spend time with their father pending the completion of the hearing.

3. There is no unacceptable risk to the children arising out of the very serious allegations the mother had made against the father.

4. The evidence I have would indicate that the mother can cope with a reintroduction of B to her father and an introduction of C to her father at a contact centre and I find it is in the best interests of the children pending the completion of the hearing in this matter for that to take place and I will make appropriate orders accordingly.

5. As requested, the Independent Children's Lawyer provided information that the Region K Children’s Contact Service currently offered supervised contact for preschool aged children on Fridays only and that there is currently an estimated three month waiting list for Fridays.

1. Based upon the evidence of the mother’s psychologist, pending further order I shall make an order placing the children’s on the Watchlist.

2. The Independent Children's Lawyer proposed orders in relation to the appointment of a single expert. I mark that document Exhibit 3. The parties are to consult and agree upon an appropriate expert. If there is any difficulty in relation to the appointment of an expert, then the Independent Children's Lawyer is to relist the matter before me as soon as is practicable. The report writer should see the mother and the children together; see the father; see and observe the children with their father; see the father together with his other children and his parents, if they remain members of his household.

3. The father’s financial position is significantly superior to that of the mother’s and he should fund the costs of the preparation of the single expert report. I am satisfied he has the capacity to comply with the order sought by the Independent Children's Lawyer in that regard.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 27 April 2016.

Associate: 

Date:  27.4.2016