MOHSEN & COLLINGS
[2017] FamCA 29
•25 January 2017
FAMILY COURT OF AUSTRALIA
| MOHSEN & COLLINGS | [2017] FamCA 29 |
| FAMILY LAW – CHILDREN – Where the mother has made allegations of domestic violence against the father and continues to be fearful of the father – Where the mother does not want the father to spend any time with the child – Where the father has denied all allegations and sought orders that the child spend time with him –Where the father has not seen the child for over two years – Where findings have been made in respect of some allegations of domestic violence – Where the mother’s parenting capacity and relationship with the child would be affected if the child was to spend supervised time with the father – Orders made for the child to live with the mother and spend no time with the father. FAMILY LAW – EVIDENCE – Where the maker of a statement has died – Consideration of the exception to the hearsay rule where the maker is not available – Where the statement has high probative value – The statement is admitted into evidence. |
| Evidence Act 1995 (Cth) ss 63, 135 Family Law Act 1975 (Cth) s 60CC(2)(b) |
| Ainsworth v Burden [2005] NSWCA 174 |
| APPLICANT: | Mr Mohsen |
| RESPONDENT: | Ms Collings |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children's Lawyer |
| FILE NUMBER: | PAC | 3006 | of | 2013 |
| DATE DELIVERED: | 25 January 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 9, 10, 11, 12 and 13 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lo Schiavo |
| SOLICITOR FOR THE APPLICANT: | Avant Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Mahony |
| SOLICITOR FOR THE RESPONDENT: | David H Cohen & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
Orders
IT IS ORDERED
That the mother have sole parental responsibility for the child B born … 2011.
That the child live with the mother.
That the father have no contact with the child.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohsen & Collings has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3006 of 2013
| Mr Mohsen |
Applicant
And
| Ms Collings |
Respondent
REASONS FOR JUDGMENT
Mr Mohsen (“the father”) and Ms Collings (“the mother”) met and formed a relationship in October 2002. They began to live together in early 2009, were married in 2010 and finally separated on 16 July 2013.
The parties have one child, the subject of these proceedings, B (“the child”), born in 2011 who is now five years old. The child has not seen his father since the parties separated in circumstances which are the subject of these proceedings.
It is the mother's case that the father has consistently and persistently been the perpetrator of family violence towards her and towards the child. Each and every allegation of violence was put to the father and denied by him.
HISTORY
The father was in a relationship with Ms K and a child, E, was born of that relationship in 1997.
The father and the mother met in 2002. They maintained separate residences although they spent an increasing amount of time together.
The child E came to live with his father in March 2005 when he was seven years old.
When the father and the mother commenced living together in 2009, E was a part of their household.
It is an agreed fact that the relationship between E and the mother, initially good, deteriorated by the time E reached his teenage years to such an extent that there was physical violence between them. The mother and the father each have a different version of those events. The father alleges that the mother instigated acts of violence against E. The mother alleges that E was the perpetrator of violence against her.
The mother left the relationship with the child B on 10 November 2012 and went to a refuge. She later returned to live with the father. The circumstances in which she returned will be examined later in these reasons.
On 24 April 2013, the father travelled to America for two months. The mother remained in the home with the child and E.
The mother and father finally separated on 16 July 2013 when the mother, with the assistance of the police, left the home and went to a refuge. She has remained in supported accommodation since that time and the child has not seen his father.
Immediately after the parents separated, there were proceedings in the Federal Circuit Court in relation to the father’s attempts to enlist public opinion in his quest to see the child, which included posts on social media, the involvement of a fathers’ group, a rally and placing numerous posters with the child’s picture in public places. In the latter endeavour, the father was assisted by the members of the fathers’ group and their sympathisers. Orders were made restraining the father from further publicising matters relating to the child and the mother alleged that the father ignored those Orders and continued to place posters of the child and to invite comment on social media and incite other people to write letters to the presiding judge expressing their disapproval of the Orders.
The father in cross-examination said that he had not disobeyed the Order of the Federal Circuit Court and that it was the members of the fathers’ group who continued to put up the posters. However, he also conceded that he did not tell them of the Orders or ask them to stop. The father said, in cross-examination, that he was not the instigator of the Facebook post inviting followers to write to the presiding judge expressing their disapproval of his Orders, but he accepted that the details for contact, including the name of the judge and the father’s address, must have come from him.
Also after separation, the child was hospitalised. When the father found out that the child was in hospital, he went to the hospital to see the child. The police were called and the father was told that, because there was an Apprehended Domestic Violence Order (“ADVO”) in place for the protection of the mother, and she refused to leave the child’s side, he would not be permitted to see the child.
On 23 September 2013 the father was convicted of assaulting the mother in an incident that occurred on 23 February 2013. He appealed against that conviction but the appeal was dismissed.
The father was charged with seven criminal offences. In summary, the charges alleged that he:
· Had sexual intercourse with the mother without her consent between 1 November 2009 and 22 December 2009 and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;
· Had sexual intercourse with the mother between 1 August 2010 and 31 January 2011 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;
· Assaulted the mother on 5 September 2011 occasioning actual bodily harm;
· Had sexual intercourse with the mother on 8 March 2012 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;
· Assaulted the mother on 11 May 2012;
· Assaulted the mother between 1 July 2012 and 31 July 2012 and inflicted actual bodily harm;
· Assaulted the mother on or about 13 February 2013 occasioning actual bodily harm to her.
The family law proceedings were listed for hearing in July 2015 but were adjourned until the completion of the criminal proceedings.
That matter came to trial in the District Court before a jury in June 2016 and the father was acquitted.
THE COMPETING APPLICATIONS
The father, at the commencement of the trial, sought orders that he have sole parental responsibility for the child, and that the child live with him and spend time with the mother. At the commencement of submissions, counsel for the father amended the father’s application to seek an order that the parents have equal shared parental responsibility, that the child live with the mother, and that the child spend time with the father for a three month period from Saturday morning until 1 pm on Sunday in the first week of each two week period, and on Sunday for two hours in the second week. After three months, the father proposed that the time be extended so that the child spent time with him each alternate weekend from after school Friday until before school Monday and overnight on Wednesday in the alternate week.
The father proposed a period of re-introduction during which the child would spend time with the father each Saturday for four consecutive weeks.
The mother seeks an order that she have sole parental responsibility for the child, that the child live with her and that he spend no time with the father and have no contact with him.
THE EVIDENCE
The Court was assisted by a single expert, Dr C, a child and family psychiatrist who conducted interviews with the family late in 2014 and prepared a report. Dr C was cross-examined.
An Independent Children’s Lawyer (“ICL”) was appointed for the child.
The father relied on affidavits by himself, his mother, a close friend Ms F, and Ms H who was a young friend of the mother when the parties lived together. Ms H went to school with E. Both Ms F and Ms H were family friends of the paternal family before they met the mother. The father’s witnesses were cross-examined.
The father tendered the transcript of the District Court proceedings including the cross-examination of Dr G and Dr J.
The mother relied on an affidavit by herself and an affidavit of a support worker, Ms N. Ms N’s affidavit related only to an incident involving unknown third parties that occurred outside of the Family Court of Australia on one occasion that the mother attended in 2014. She was cross-examined.
Annexed to the mother’s affidavit were a number of reports and witness statements by third parties. The authors of the statements were Mr L (the mother’s step-father); Ms M (the former wife of the father’s brother); Ms K (the father’s former partner); Dr J (the mother’s general practitioner); Dr G (an ear, nose and throat specialist); Ms W (a refuge worker); Ms T (an audiologist); Ms U (a refuge worker); and Ms S (a social worker).
Objection was taken to the receipt of those statements and reports into evidence unless the authors were made available for cross-examination. Leave was granted to issue subpoenas to Ms M and Ms K.
Two of the authors, Dr J (the mother’s general practitioner) and Dr G had been cross-examined in the District Court proceedings and the transcripts of their cross-examinations were in evidence. They were not required for cross-examination.
Ms W, Ms K, Ms T, Ms U and Ms S were not made available for cross-examination and their statements were not read.
Mr L died before the commencement of the hearing. Counsel for the mother sought to rely on his statement by virtue of the provisions of s 63 of the Evidence Act 1995 (Cth) (“Evidence Act”) which are set out below:
EVIDENCE ACT 1995 - SECT 63
Exception: civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Counsel for the father objected to the admission of the statement on a number of bases:
· Firstly, the document is in the form of a police statement and is not an affidavit;
· Secondly, the statement was witnessed by Mr L’s wife;
· Thirdly, counsel relied on the provisions of s 135 of the Evidence Act.
In relation to the first two bases for objection, I note that the provisions of s 63 refer only to a “representation” and contain no requirements as to form. Neither is there any requirement that a written representation be witnessed in any particular manner, or at all.
The provisions of s 135 are set out below:
EVIDENCE ACT 1995 - SECT 135
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
It was not submitted that the statement had no probative value and such a submission could not have been available in relation to Mr L’s observations of the mother’s physical appearance and the conversation between them. Nor was it submitted that the evidence was misleading or confusing or would lead to undue waste of time. Primarily, the submission on behalf of the father was that the evidence was prejudicial to him and that the prejudice outweighed the probative value of the evidence.
In order to understand the argument, it is necessary to have regard to the contents of the statement. The relevant parts are reproduced below:
5. After a few months of their marriage, [the mother] began showing up to our home with different bruises and markings on her body.
I said “Who did this?”
She said, “[The father] did it.”
I said, “You’ve got to do something about it, let me call the police. Let me organise something for this.”
She said, “No I can’t.”
6. If I offered to call the police it would send her into a state of crying and hysterics. [The mother] told me that if [the father] caught word that she had told someone about the marks on her body, he would beat her up and lock her in the house for as long as it took for the bruises and marks to fade …
…
8. In early January 2011 [the mother] told me that she was pregnant with their son, [the child]. Between early January 2011 and October 2011 I had a conversation with [the mother] over the phone. [The mother] informed me that [the father] had threatened to kill her by throwing her down the marble staircase and make it look like an accident.
9. Since [the mother] became pregnant she would show up at our home with her belly covered all over in blotchy bruises. There was not one occasion where she would turn up without bruises. Each time, I would observe bad bruising to her arms, particularly the upper arm/shoulder area and her face. Her eye or eyes would often have fading bruises or one would be slightly closed and swollen. [The mother] told me that [the father] would only let her leave to visit our home once the bruises and swelling were not so fresh and prominent.
10. Between early January 2011 and October 2011 [the mother] visited our home and showed me more bruising on her belly. … She showed me bad bruising up and down her arms. I noticed bruises around her neck that looked distinctly like they were caused by fingers. It looked like the marks were as a result of someone putting their hands around her neck. She showed me a large horizontal scratch on her lower back.
I said, “What happened?”
She said, “[The father] did this. The baby hasn’t moved in two days. I’m afraid I’m going to lose it.”
11. [The mother] told me that these injuries were from when [the father] had beaten her up, knocked her to the ground and beat her repeatedly in her pregnant belly.
…
19. Between October 2011 and December 2012 [my wife] and I visited [the mother] and [the father’s] home … Each time I saw [the mother], whether it be in her home or ours, she would have the same bruising and swelling to her face and arms. She would do her best to avoid talking about them. We visited their home about 10 to 12 times in total.
In Ainsworth v Burden [2005] NSWCA 174 at [99] per Hunt AJA (Handley and McColl JJA agreeing), the Court of Appeal held that:
The judge has wrongly interpreted what is comprehended by the expression “unfairly prejudicial” in s 135. It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent’s case. The phrase “unfairly prejudicial” or the cognate phrase “unfair prejudice” is used not only in s 135 but also in s 136 and s 137, and the meaning to be given to each of those phrases must be the same — whether or not a weighing exercise is contemplated … The prejudice to which each of the sections refers is not that the evidence merely tends to establish the case of the party tendering it; it means prejudice which is unfair to the other party because there is a real risk that the evidence will be misused by the jury in some unfair way … (citations omitted)
These are civil proceedings before a judge alone. Counsel for the father will have an opportunity to make submissions about the weight to be given to the statement of Mr L, given that he is not available for cross-examination. It is difficult to speculate how the “real risk” to which Hunt AJA referred in Ainsworth v Burden could apply in a judge alone trial.
The learned author of ‘Uniform Evidence Law’ 12th Edition, Stephen Odgers, at pages 1158 – 1159 suggests that the relevant considerations are:
· The issue(s) to which the evidence relates;
· The probative value of the (un-cross-examined) evidence;
· The importance of the evidence (bearing in mind the existence or non‑existence of other evidence on the issue(s) to which the evidence relates);
· The possible significance of cross-examination;
· Any other dangers of unfair prejudice which may be exacerbated by the lack of opportunity to cross-examine;
· Whether or not any procedural disadvantages may be ameliorated or removed by some other action than evidentiary exclusion (for example, by adjournment of the proceedings);
· The ability of the tribunal of fact … to take into account the absence of cross-examination (and, where applicable, the inability to observe the making of the representation) when determining the weight to be given to the evidence.
Addressing the criteria set out above seriatim:
· Mr L’s statement goes to the issue of family violence which is central to the determination of the matter.
· Those portions of the statement which have been set out above are clear and probative.
· There is little other evidence available in relation to the period to which the statement refers.
· The husband has denied that any physical or psychological violence ever occurred. Therefore any cross-examination in relation to the statement could not be on the basis that there is a rational alternate explanation for the things that were observed by Mr L. The only cross-examination is likely to be that he is mistaken or untruthful.
· I accept that there will always be a degree of prejudice where the maker of a representation is not available for cross-examination but clearly the provisions of s 63 of the Evidence Act contemplate that such evidence may be allowed. The inability to test the evidence cannot, alone, be sufficient to invoke the provisions of s 135.
· There is no possibility of ameliorating the prejudice which follows from the inability to cross-examine but that, too, must have been contemplated in s 63.
· Judges are accustomed to weighing evidence and it is unlikely that the fact that Mr L’s demeanour cannot be observed would have an effect on the weight to be attributed to his statement.
Accordingly, Mr L’s statement will be admitted into evidence.
THE ALLEGATIONS OF FAMILY VIOLENCE
The mother bears the onus of proof in relation to her allegations.
At the commencement of the trial, counsel for the father made an application for an order that the rules of evidence would apply to the evidence in relation to family violence. That application was refused. The time for that application to have been made was at the time when the Directions were made for the preparation of affidavits so that those preparing the affidavits on behalf of the mother were aware that the rules of evidence would apply.
However, the allegations which are made by the mother are serious and the implications of accepting her allegations are far reaching in terms of the welfare of their child. The standard of proof is the balance of probabilities but, having regard to the nature of the allegations, the provisions of s 140 of the Evidence Act apply and the court must take into account, in the determination of whether the case has been proved on the balance of probabilities, the nature of the allegations and the gravity of the matters alleged.
As is so often the case where family violence is alleged, most, but not all, the incidents which are asserted took place in private and the only persons present were the mother and the father. In those circumstances it falls to examine each specified allegation in the context of the contemporaneous records kept by the police, medical practitioners, hospitals and the like and the evidence of contemporaneous complaints.
The father denied each and every allegation that was put to him, including the events on 23 February 2013 which led to his being convicted of assaulting the mother, in respect of which conviction his appeal was dismissed. In those circumstances, the father’s denials must be treated with some caution. The father’s denials of any violent incidents between him and the mother do not address the fact that a medical practitioner, Dr J, saw injuries on the mother’s body on a number of occasions. Nor do his denials address the issue of the mother’s contemporaneous complaints. There was no attempt in the father’s case to explain how the mother’s injuries occurred.
The father also denied that there had been heated and loud arguments between himself and the mother. It was his evidence that, if the mother raised her voice, he would absent himself to prevent any argument. The father’s evidence does not explain the evidence of the telephone call on 23 February 2013 when police heard the father yelling at the mother.
However, it is not the case that, if the father’s denials are not accepted, the mother’s allegations are proven. It is still necessary to examine her allegations and consider the evidence in relation to each complaint.
It is the mother’s case that from about 2003 she was subject to verbal abuse from the father which escalated.
The mother alleged that in about 2007 the father's verbal abuse escalated to the point where on a night out he locked her inside his car, abusing her and screaming at her. The mother alleges that the father screamed at her in rage saying that he did not like her hairstyle, her nail polish colour or anything about her and he described her as “an ugly piece of shit”. The mother alleged that she was extremely afraid of the father and wanted to get out of the car but he locked the doors and kept her in the car for an hour.
The mother further alleged that in about 2007 the father started to take photos of her when she was crying saying to her “I am going to make you look bad, I want to show everyone how ugly and crazy you are with the new pictures I have taken.”
The mother alleged there was a further incident in 2007 when they were driving to meet friends for dinner. The father restrained her in the car. When she tried to use the lever to open the car door, the father put his hand over her mouth telling her to calm down. She alleges that the father started to forcefully kiss her and told her that she was not going anywhere until she understood what he expected of his woman. She alleged that the father then told her to stop crying, he wiped her eyes and said “We're going to go in now. My friend is waiting to have pizza”. The mother alleges that she was in fear of the father who was holding her hands so tightly that it hurt. She alleges the father said to her “pretend to be happy and sit down”. This incident was alleged to have taken place outside a pizza shop in Suburb V.
The mother alleges that on a holiday in South East Asia the father held her down and punched her and dragged her by the hair. That holiday took place at the end of 2008.
The mother did not make any complaint to anyone in relation to these events.
At that time the mother and the father were not living together and each had separate accommodation.
Thus, it is the mother's case that from 2003 until the beginning of 2009, when they were not living together, the father was consistently verbally abusive towards her and that from 2007 his abuse escalated to include physical abuse. Despite that pattern of behaviour, according to her evidence, she commenced living with him in early 2009.
However, as Dr C explained in her oral evidence, neither the absence of complaint nor the fact that the mother moved in with the father despite her allegations of abuse can be accepted as evidence that the abuse did not occur.
The mother alleged that in late 2009 the father kneed her face as she was kneeling on the ground in the spare bedroom and hit her head and face. She alleged that the father was in an uncontrollable rage, that he grabbed her hair and dragged her along the carpet in the spare room and then kneed her and called her names.
The mother alleged that in about April 2010 the father's son E cornered her on the staircase and tried to push her, calling her an "Aussie slut". She proceeded to walk down the stairs and the father’s son forcefully kicked her hard on her chest, punched her with his closed fist and aggressively pulled her hair.
Records produced by the mother's general practitioner note that on 20 April 2010 she attended for a consultation. The reason for the visit is noted as (as per original):
Skin infection … Acne … chest wall injury – kicked by step-son 1w ago chest L breast area – persistent pl pain, worse with cough … refuses exam.
Points to 4th rib mcl-aal
The doctor requested an x-ray but there is no evidence of the result.
I accept that the father’s son assaulted the mother as she alleged but the father was not present.
The father and the mother married in 2010 in a religious ceremony which was not registered according to Australian law.
Mr L observed the mother to have bruises within a few months of the marriage and was told by her that the bruises had been caused by the father.
The mother deposed that:
In or about January 2011, I discovered I was pregnant with [the child]. However, the physical violence and [the father’s] brutal behaviour towards me and my unborn child escalated. [The father’s son] also became increasingly abusive towards me including emotionally and physically. My safety became increasingly at risk and I was challenged daily.
The mother deposed:
In or about 2011, throughout the course of my pregnancy, [the father] also threatened me and my unborn baby several times by trying to push me down the stairs, grabbing my hair and pulling my hair follicles out.
She further deposed (as per original):
In or about 2011, [the father’s] physical abuse escalated including him ramming, pushing, poking, shoving, pushing hard, kicking, trying to cause me to miss my step on the stair case, slip over by purposely putting water on the floor in the hallway and the stairs and mocking me when I slipped pregnant/heavily pregnant, attack me by pulling into my hair, pushing me and shoving me, causing me to miss my step and then mock my pain and my unborn child when he said to me ‘I hope the baby dies’.
Mr L stated that the mother told him that the father threatened to kill her by throwing her down the stairs and making it look like an accident.
The mother relied upon a certificate of expert evidence prepared by Dr J on 20 August 2015 for the purpose of the criminal proceedings. Dr J deposed that the mother consulted him on 14 February 2011, 18 March 2011, 7 April 2011, 23 May 2011, 28 June 2011, 1 July 2011 and 7 September 2011 “relating to the progression of her pregnancy”. Dr J’s records indicate that between February 2011 and January 2012 the mother saw Dr J on 24 occasions.
The mother first attended at V Medical Centre in relation to her suspected pregnancy in February 2011.
On 18 February 2011 Dr J noted, in relation to the mother, “very depressed, needs referral” and created a mental health assessment plan and referral to Mr O, a psychologist. In the mental health care plan, Dr J cited the mother’s diagnosis as “mixed anxiety and depression”.
In the first session with Mr O on 18 February 2011, he noted that the mother told him that she had been highly distressed for some time and was afraid of miscarriage because of the abusive relationship with the father. She said that she felt disappointed about being neglected during the pregnancy and unsupported. The mother told Mr O that she felt she was treated like “rubbish” and that her step-son treated her in the same way as his father did. The mother told Mr O that there were cameras installed inside the house “just in case of robbery”, “for security”, but she had concerns they were being used to spy on her. The mother told Mr O that she had been abused and bashed in front of the father’s son and was afraid to say anything about the abuse. The mother told Mr O that she had fears for her safety and needed to move out of the house but could not do so. She said she felt trapped and did not know what to do. Mr O noted that the mother described the father as having been “charming at first and now even hitting her and abusing her in front of step son”.
On 22 February 2011 Mr O, the psychologist to whom the mother had been referred, wrote a letter to Dr J wherein he stated:
I met the patient on February 18th, 2011. She presented with concerns regarding a situation of domestic violence. At this point in time, [the mother] is pregnant and worried about her situation at home with fears about the future and potential miscarriage due to stress.
The mother failed to attend the next appointment on 25 February 2011 and on 28 November 2012 she contacted Mr O and asked for a copy of his file to be sent to her.
The mother deposed that in about May 2011, when she was four months pregnant, she was in the car with the father at about 11 pm. She deposed that he slowed down and threatened her saying words to the effect “I don't fucking care about the baby. I hope it fucking dies”. The mother said that she was frightened and when the car stopped she got out and ran down the street and the father drove away. The mother telephoned a friend, Ms R, and asked her to stay with her on the phone until she found help. The mother then was able to hail a taxi and return to the home but the father had locked the bedroom door. Ms R did not give evidence.
The mother deposed (as per original):
During the course of my pregnancy with [the child], there were a number of vicious and brutal assaults on me by [the father] when he tried to injure me when [the child] was in my stomach. [The father], despite of my pleas for him to stop and trying to leave him … continued to kick me in the stomach, on my left breast and my back where he pulled follicles of my hair which he brutally dragged out of my head as well as hitting my head with his fists. He also struck my neck, my body as well as continuing to assault me causing lacerations across my back which bled. He also kicked heavily injuring my fingers, hands, bruising my face, eyes, ears and head. There was also bruising on my right arm. I had to seek treatment from Dr [J] at [V] Medical Centre, for bruising on my pregnant stomach, legs and arms and to check if my baby was not injured.
On the visit on 23 May 2011, Dr J examined the mother after she complained of a painful burn on her index finger which she said had been caused by the father.
In a triage document prepared by New South Wales Health on 8 June 2011 the record notes, “living with partner she describes as being negative and can be verbally abusive. 13 yr son (his) lives with them, also verbally abusive.” Also on 8 June 2011 the record notes “looking at leaving her partner before the baby is born but feels she needs to put plans together first.”
On 18 July 2011, Dr J noted that the mother was “worried about baby”. He advised strict bed rest and spoke to the father.
The mother alleged that in about September 2011 when she was eight months pregnant the father frequently said to her “if you do not do as I say, I will kick your stomach in and make you lose it”.
The mother alleged that on 4 September 2011 the father punched her on her left breast, leaving heavy bruising.
The mother alleged that during her pregnancy the father constantly made threats to kick her stomach so that she would miscarry. Mr L stated that he saw bruising on the mother’s belly. The mother told Mr L that the father had caused the bruising by kicking her.
The mother alleged that an incident took place late on the night of 5 September 2011 when she determined to leave the father and commenced to pack. The mother deposed:
While I was bent over the pile of coat hangers and clothes on the floor, [the father] kicked me in the lower back. [He] then grabbed me by the hair and shove (sic) my head back and forth into the pile of coat hangers. The coast (sic) hangers caught inside of my lip, mouth and throat causing the inside of my mouth and lip to bleed. [The father] said to me words to the effect ‘Are you going to stop, shut the fuck up.’ I pleaded with him saying ‘Stop, please stop.’
The hooks of the coat hangers caught on my mouth as he shoved my head back and forth into the pile of coat hangers. My mouth was bleeding and my lip was lacerated on the inside. I said to [the father] repeatedly as he was kicking my back and body, ‘Please don't, please don't hurt my baby’. He said to me ‘if you don't shut up I'll make you lose it’.
In cross-examination, the mother said that the coat hangers were wire hangers.
One of the neighbours contacted 000 reporting screaming. The record of the 000 call was in evidence. The caller said to the police “… all I can hear is her screaming and yelling out please stop”.
Records produced by the New South Wales Police indicate that police attended at the home on that occasion. Police noted that the mother was due to have a baby in five weeks. The record notes that police were told that a verbal argument commenced because the mother was upset that the father did not appear to support her in the management of the home and also because the mother felt the father put the needs of his son E above her needs. It was not the mother who called the police and she told the police that she did not wish them to take any action. She advised the police that she held no fears for her safety and signed the police notebook to that effect. The record noted that the police observed no sign of injury to the mother.
The mother deposed that when the police attended she was too frightened to tell them that the husband had assaulted her and she signed a police note book stating that she did not want any action to be taken.
Tendered in the father’s case was an extract from a police notebook signed by the mother on 5 September 2011 where the mother is noted to have stated “I don’t hold any fears for my safety. I had a verbal argument with my stepson. I don’t need any police action.”
On 7 September 2011, the mother presented to Dr J. She told Dr J that the injury had been caused by the father and had occurred two nights before. Dr J stated:
I examined [the mother] after she presented with an injury to the left hand. She informed me that this injury was inflicted by her husband and had occurred two nights prior to this consultation. The examination revealed bruising of the fourth and fifth left hand fingers with accompanying swelling on the dorsal surface. I observed bruising on the medial left side of the palm. [The mother] also presented with bruising (6cm x 1cm) on her lower back and a deep laceration of 4cm in length. She had a hematoma at the base of her scalp on the right hand side. At the time of this consultation [the mother] was 36 weeks pregnant.
The mother’s injuries as observed by Dr J are largely consistent with her account of the incident, although Dr J did not observe lacerations to the mother’s mouth. In the District Court proceedings, Dr J said that the deep laceration on the mother’s back had been caused by a sharp object. It was not put to Dr J that the hook of a wire coat hanger could be such a sharp object, but I accept this could be so.
I accept that the father assaulted the mother on 5 September 2011 as she alleged.
The mother deposed that in early March 2012, as she and the father were getting ready to go to an engagement party, she was feeling unwell. She deposed:
[The father] … suddenly lost patience with me and pushed me onto the bed. He again started jumping on the bed and began stomping with his feet and punching me in a severe rage stomping onto my ankles, legs, back, pelvis, body. He then grabbed me by my hair and dragged me off the bed and onto the floor. I was sobbing and bellowing.
The mother deposed that the father shouted to his son to come and get the child and after the child had been taken from the room, the father continued to assault her. The mother deposed that the father’s son watched the father assault her. She deposed that she did not call the police in relation to this incident.
The mother deposed that in or about 8 March 2012 the father returned home and she told him that she no longer wanted to be in a relationship with him. The father became angry and an argument ensued. The mother deposed:
[The father] pushed me to the ground and used his knee to strike me in the head. [The father] covered my nose and mouth with one of his hands. [He] said to me words to the effect ‘Are you gonna fucking shut your mouth? Listen to me.’ He then kicked me in the head and ears.
The mother deposed that the father then pushed her into a water dispenser causing the machine to break and cutting her nose, lip and face. He grabbed her by the arm and threw her into the wall and struck her multiple times with his arm or his foot to her ears, eyes and head. She deposed that she was kicked in the back of the neck and pushed to the ground where the father grabbed hold of her hair. He struck her face and pushed her head back and forth against the wall tiles pulling out several sections of her hair. He then sexually assaulted her.
The mother deposed that on about 12 March 2012 the father assaulted her by kneeing her and bashing her in the head and forcing her down onto the tiles. She deposed:
[The father] then tried to bash my teeth in and crush my face with his hands. He pulled and dragged my hair continuously and a lot of it fell out at the time because I saw chunks of it on the floor. Later when I showed him the hair, he would say, ‘look at what you did to yourself Bitch’.
He covered my nose and mouth with his hands so I could not breathe or see and he kept on punching me to the point where I almost couldn't breathe and passed out.
On 23 March 2012, Dr J examined the mother after she told him that she had been assaulted two weeks before on 8 March 2012. Dr J noted that the examination revealed bilateral periorbital hematoma, that the bruising in her left eye was more severe than that in her right eye, and her lips were swollen. Dr J noted a vertical laceration on the mother’s left cheek, with bruising of her upper lip, a long curved laceration on the left dorsal surface and swollen lips. Dr J noted, “has written a complete description of what he has done”. I infer from Dr J’s note that the mother had told Dr J that the father was responsible for the injuries. Dr J, in the District Court, said that the injuries he observed were consistent with the mother’s complaint of an assault two weeks before.
I accept that the father assaulted the mother on or about 8 March 2012 causing injuries to her eyes and face.
Records produced by the Hospital indicate that a psychosocial assessment of the mother was conducted on 24 May 2012. Under the heading “Recent Stresses” the record notes:
Relationship worries – lives with partner and his son verbal abusive not helpful at home, son is also very rude and non-hepfu (sic). Been together 8yrs. Discussed counselling – he would refuse to go.
Against the heading “Physical Abuse” the record notes “no”. Against the heading “Frightened by partner” the record notes “no”. Against the heading “Response to DV questions” the record notes “DV identified – info refused”.
The mother deposed that in July 2012 an incident occurred when “[the father] was pulling and dragging me by my hair following which my head was being rammed by [the father] back and forth into a granite staircase”. The mother deposed that her sister-in-law (the former wife of the father’s brother), Ms M, was present during that incident.
Ms M made a statement to the police on 5 November 2013. She stated, relevantly:
…when we pulled up outside the house I could hear [the mother] screaming, ‘Stop! Stop!’ I rang the doorbell and [the mother] answered the door. [She] was crying, shaking and her hair was all over the place. [She] kept trying to speak and tell us that [the father] would not let her leave or take her belongings. She kept crying and shaking and had to keep stopping while she was talking.
[The father] came down the stairs which were just inside the front door to where we were all standing. [The father] moved towards [the mother’s] hand to grab it but I grabbed his arm to move it away. [The father] was too strong for me and shoved me away causing me to stumble and lose balance. I grabbed onto the stairs which saved me from falling. [The father] grabbed [the mother] by the hair with one hand, pulled her to the ground and dragged her about four (4) metres to the base of the stairs where he started hitting her head repeatedly onto the stairs. I could hear [the child] crying from somewhere upstairs. … [the paternal grandmother] yelled to [the father] ‘Stop it! Stop it!’.
[The father] eventually stopped after hitting [the mother’s] head three or four times on the steps. I saw … items that I recognised as [the mother’s] thrown everywhere and out the front of the house. [The paternal grandmother] said to [the father], ‘Let her finish packing’. [The mother] tried to pick up things and pack them but [the father] would grab it of (sic) her and throw it on the ground or out the front door. [The father] yelled at [the mother] that if she left the house he would take [the child] and she would never see him again.
Ms M was cross-examined before me. Counsel for the father put to Ms M that she had not seen the father punch the mother. She agreed. Ms M was not otherwise challenged in relation to the paragraphs of her statement which are reproduced above.
Ms M said that when she arrived at the house, she said harsh words to the mother. She said that they are not friends and have not maintained their acquaintance. She was not prepared to give evidence in these proceedings unless she was subpoenaed.
On 15 July 2012 at 1:01 am, Ms M sent a text message to the mother which read (as per original):
I get the feeling ur upset with me from yesterday but I didnt mean to raise my voice u just didnt get what I was trying to say to u.. either way goodluck with what u choose to do and I think its best I dont involve myself in anyones problems but if u do need anything I can help u with let me know xxxx
On 15 July 2012 at 1:58 am, the mother sent a text message to Ms M which read, inter alia (as per original):
When you are getting threatened and tourmented even though you are staying away from that person and he keeps comming at you its hard to be in a good frame of mind … I was not going near [the father] or causing him trouble it was him that kept it up even when I ignored him he started to throw my stuff down the stairs and other things so I cant and no one CAN be on there own to handle any of that i have never wanted to involve anyone but he has got way to bad in the past few months and its wasnt possible to handle or tolerate what he was doing to me so thats why I felt no choice to ask for help. Im sorry if there was any crossed wire’s on our behalfs and especially mine but I would never want you to be angry or upset or me to of made you feel like that.
Mrs A (“the paternal grandmother”) swore an affidavit and was cross-examined in relation to this incident. She denied that any assault had occurred and maintained that the mother fabricated the incident and that Ms M lied to support the mother. Why Ms M would lie to support the mother was not explained. The paternal grandmother gave evidence in the District Court and denied that any assault had occurred.
The paternal grandmother does not speak English well enough to read her affidavit. There was no certificate of an interpreter attached to the affidavit. It is not clear that any interpreter was present. The paternal grandmother deposed that her daughter interpreted for her when the affidavit was prepared. Before me, she gave her evidence with the assistance of an interpreter. Her evidence was confusing, perhaps because of her difficulty speaking through the interpreter.
She agreed that she went with Ms M to the house after receiving a phone call from the mother. She said that there was an altercation between the mother and Ms M which she observed but they spoke English. The paternal grandmother said that the mother had been fighting with the father’s son. She said that for the whole of the time she was in the house the father’s son was upstairs watching television. She did not say that she was present when the fight between the mother and the father’s son occurred, nor did she say how she was aware that it occurred.
The paternal grandmother said that when she arrived, the father was upstairs. In answer to a question from counsel for the mother, the paternal grandmother said “she was yelling and fighting with my son”. She then said “I wasn’t there if they had a fight”. She said that the father came downstairs but he didn’t do anything.
Counsel for the mother suggested to the paternal grandmother that she was being untruthful to protect her son. She did not agree. I accept, however, that the paternal grandmother had a strong motive to support her son’s version of the event.
There are two sharply conflicting versions of the incident. The mother’s version and that of Ms M are consistent. Ms M’s evidence was largely unchallenged. It was not put to Ms M that the father did not hit the mother’s head on the stairs.
Ms M was not a friend of the mother or a willing witness. I accept her evidence.
I accept that the father assaulted the mother on that occasion, in the presence of Ms M, and his mother witnessed the assault.
The mother first saw Dr G on 28 August 2012. Dr G prepared a report dated 16 March 2015 in which he stated:
This is to confirm that I have been seeing [the mother] since 28 August 2012.
She related that about a year and a half prior to the initial visit she was physically traumatised across the left ear and face particularly around the nose and the eye. Since that time she complains of bilateral tinnitus worse on the left.
Dr G concluded:
The complaints of the head and neck area including the tinnitus and the trouble breathing through her nose together with her aches are a direct result of the physical trauma which happened recurrently that she sustained in her home situation until she left in July 2013.
In cross-examination in the District Court, Dr G, asked whether the mother had given any further details about the assaults by the father, stated:
Just that she had been hit and punched over the left ear and on one occasion punched over the left side of the face, nose and eye.
Dr G stated that a deflection of the nasal septum, such as he observed in the mother, could be due to trauma such as a punch. He stated that the mother had related no trouble in her breathing until after she had been hit a year and a half earlier. Dr G stated that the mother related the trauma to the beginning of 2011 when she said she was slapped for the first time and a number of times over the following few months.
Records produced by the police state that on 10 November 2012 the mother called 000 and the police attended at the home. The mother told the police that over the past few days she had slowly been removing her property from the home. The mother said that at about 1:00 am on 10 November 2012 she went upstairs to check on the child who was asleep in his cot. The father shouted at her “Leave him in there, don’t fucking touch him”. The mother ignored that comment and picked up the child. The father then approached the mother and refused to allow her to leave the room with the child. He grabbed the child out of the mother’s arms and the mother let go of the child for fear that he might be hurt in the struggle. The mother walked into the spare room and turned on the television. The father approached her and said “You will never get [the child] back until I get what I want from you. Watch what’s going to happen to you”. As he said this the mother left the room and the father yelled after her “Watch what’s going to happen to you, no one can save you. We’ll see, we’ll see”. The mother then walked out of the house and dialled 000. Whilst the mother was on the phone to 000, the mother heard the father coming towards her. She threw her phone into the garden so that the father would not get hold of the phone. He grabbed her by her upper arm pulled her up by her hair and shouted “Who are you calling? Who are you calling? The police are going to come now. We can talk”. The mother said that she did not reply. The father let her go and walked back to the house. The record notes that during this conversation the phone call to 000 was still operative and the operator could hear the father. The police spoke to the mother and obtained a formal statement. The father was placed under arrest for common assault. The record notes that there was no evidence of injury to the mother.
The police were called on that occasion and a contemporaneous complaint was made. The father provided no explanation for the police being called. I accept the mother’s version of the event. I accept that he yelled at her and threatened her.
The mother left the home and went to a women’s refuge.
On 10 November 2012, the refuge staff noted:
Client was referred by the DV line. Her friend dropped her off at [the] police station. Brought client and son into refuge and conducted intake. She was very upset, was crying throughout whole intake. She was physically attacked by her partner last night. She has a sore back and neck form (sic) the assault … He had thrown away her bag with all of her I.D. in it last night so she doesn’t have any money or cards … She seems very traumatised and highly anxious …
On 11 November 2012, refuge staff noted that the mother was very upset and was crying. They noted, “Is scared that her partner will find her and take her son away from her”.
On 12 November 2012 refuge staff noted that the mother was very upset, appeared very confused and highly agitated. The mother spoke to the in-house counsellor. The mother told staff that the father had been texting her, asking her to go home.
On 13 November 2012 the refuge workers noted:
The client was extremely upset and scared this morning. She appears to be very traumatised from her experiences. She spoke to me a bit about her relationship with [the father] … She is very very scared. She also disclosed that [the father’s son] is now as bad as his father and intimidates her. He verbally abuses her and threatens her. He calls her names and he is there when his father physically assaults her. He is made to record her when she is upset and is getting verbally abused. She has photos on her phone of her face of past assaults. The police have been to her house a number of times but she was too scared to say anything. This is the first time she has done anything about it and she is terrified. She is of the opinion if she had of (sic) stayed there she would die. She feels that she is going to get a big payback for what she has done from taking her son and leaving but she could not take the abuse any longer. He has isolated her from her family and friends, they no longer speak to her and her mother does not support her because she does not condone the relationship. … Client’s demeanour is of high anxiety. She cannot focus on any question or anything. She speaks quickly and often goes off on a different direction or subject when you are speaking to her. She appears to be very traumatised. She is also extremely afraid of her son being taken away and keeps repeating that [the father] will get someone else to do his dirty work for him as he never does it himself.
On 14 November 2012 refuge staff noted that they accompanied the mother to the Local Court. Staff noted:
She is extremely anxious and scared as she does not want to see her ex. … On the way to court she indicated that he had txt again and then the phone rang and she showed me the name, it was his. I asked her again to keep her phone switched off and change her number and sim. It is putting not just herself but all other children and clients in danger at refuge is (sic) her ex traces her by her phone. This was at approx 9.00 am. We went into safe room and support worker took details and we asked for a recovery order as client has no clothes for herself and child. She made out a list so it could be handed to magistrate. [The mother] was very very upset outside courtroom as she was scared. When she went in [the father] said to magistrate that he loved her and was going to move out of the house and let her stay with her son and his 15yr old was going to stay with his mum. He also said that he had organised meditaition (sic) and counselling each hthrough (sic) family law.
The refuge worker accompanied the mother to the police station and police downloaded the messages from the father to the mother from the mother’s phone.
On 15 November 2012, refuge staff noted that they telephoned Suburb V police to make arrangements for the mother to recover her belongings from the home. The refuge worker and the mother arranged to meet two police officers at the home, when they got there the father’s son was there. The refuge worker noted:
… [[the father’s son]] started to call people on his phone, the police kept telling him not to or they would take his phone off him. He continued to do this, he also followed us around the house and was very aggressive towards the female officer. She kept telling him to keep his distance as he was trying to stand over her. … None of the babies (sic) or [the mother’s] things were there. He had got rid of them (despite him saying in court the day before that they were there). She got some things and kept going back into the house to look for more things. I had seen the boy go off in the direction of his relatives and also another police car had come as the officer had called for a couple more police. After asking client to come away she asked if she could get mail and proceeded to go back into the house, when she came out there were more family members arriving and things started to get heated. I got the client t (sic) the car and drove around for a while as the client was very distressed. We then went back to refuge.
On 16 November 2012 refuge staff noted that the mother had spent time on the phone trying to source documents and had made enquiries and provided documents to Centrelink in relation to parenting payments. Staff noted that as at 15 November 2012, the mother had paid two weeks’ rent.
On 16 November 2012 refuge staff noted that a worker had accompanied the mother to the bank and shops. The record states:
Client very paranoid and anxious the whole time, did not like me to call her by name when we were outside the refuge or use the word ‘refuge’. Told me about some of the DV [domestic violence] she had been through and her fears for future family law court proceedings.
On 19 November 2012, refuge staff noted that the mother’s step-father was in hospital and the mother intended to stay with her mother in Suburb X.
On 21 November 2012, refuge staff noted that the mother was still living with her mother.
On 24 November 2012, the mother had a conversation with refuge staff about making an application to Legal Aid and a statement to police. The mother returned to the refuge that night.
On 27 November 2012, refuge staff recorded that the mother attended upon her medical practitioner in order to get evidence in relation to her disclosures of domestic violence.
On 29 November 2012, the mother spoke to support workers at the refuge saying that she would like to go and live with her mother in Suburb X while her step-father was in hospital. Refuge staff helped the mother pack and drove her and the child to Suburb X.
Documents produced by the Women’s Refuge indicate that on 7 December 2012 the refuge wrote a letter of support for the mother for use in obtaining housing and other services.
In December 2012 the mother returned to live with the father. Their versions of what happened differ. The father says she went willingly. The mother says that the father put the child in the car and she had no choice but to go with him.
The mother was staying with her mother in Suburb X at the time. It was conceded in the mother’s case that the only way that the father could have known where she was is that she told him in a telephone call. Why she would tell him where she was is not explained, but reference will be made later in these reasons to the evidence of Dr C about such behaviour.
I am unable to determine which version of that event should be accepted.
Records produced by the New South Wales Police state that on 23 February 2013 the mother telephoned the police. The police records state:
During the phone call to police, [the father] could be heard in the background yelling ‘What are you doing? Who the fuck are you calling?’ before [the mother] was heard screaming ‘Go away, let me go.’ The phone call was terminated.
Police attended at the scene and were greeted at the door by the father who stated “We are having some issues which are going to sort out”. The police noted that the mother was distraught and visibly crying. The mother told police that she feared for her safety and for the safety of the child and that the father had threatened to take the child away from her. The mother said that during the afternoon of 23 February 2013, the mother and the father were involved in a verbal argument. At about 7:45 pm the mother was upstairs attempting to prepare the child for a bath and while the child was in her arms the father attempted to take him from her. The mother told police that the father was extremely aggressive and yelled at her “Look you’re going to make me break him in half”. The mother feared that the child would be injured and released the child to the father.
At some time during the argument the mother said that the father said something to her like “Don’t you talk to me like that” and proceeded to push her in her face with an open palm. She stumbled backwards with the child in her arms and yelled at the father, “You just hit me while I was holding [the child]”. The father replied “You walked into it”. The police were told that the father was leaving to fly out to America the following day and was expected to be away for a couple of months. The mother told the police that she did not want them to pursue the assault matter any further and did not wish to supply the police with a statement, however, she asked that the police apply for a domestic violence order on her behalf to prevent further incidents of violence. The father was spoken to at the scene by the police and stated that at no time did he assault the mother and that she “fell into him”. The police did not take the matter any further but noted in the record that they had genuine fears for the mother’s safety.
On 19 June 2013 Dr J noted that the mother needed a referral to a psychologist.
On 26 June 2013 Dr J noted in relation to the mother:
Has been under tremendous strain due to emotional and physical abuse by her partner. This has been carrying on for some time now hence the reason for referral to a psychologist. Has also been assaulted by the partner’s son while pregnant.
On 26 June 2013, Dr J completed a mental health care plan for the mother. Again the diagnosis was “mixed anxiety and depression” and Dr J noted a past history of physical and emotional abuse by her husband for the past three years. Dr J stated in the mental health care plan that the mother suffered major depression and acute anxiety.
On 16 July 2013, with the assistance of the police, the mother left the home with the child and went to a refuge.
On 23 September 2013 an Apprehended Violence Order was made for the protection of the mother. The father appealed against that order. The appeal was heard on 29 April 2014 and dismissed.
On 12 October 2013, Mr O sent a report to Dr J in the following terms:
I am writing this brief summary as requested by Dr [J] to complement his report to [the mother]. I met the patient for one session followed by two brief phone calls. As discussed with [the mother], she feared attending following sessions due to the threat posed to her by her partner.
I met [the mother] on February 18th, 2011. She presented with concerns regarding situational stress due to what she described as domestic violence. [The mother] also presented with symptoms of anxiety and depression.
Mr O noted that the mother fell within the extremely severe range of depression and the extremely severe range of anxiety. He concluded:
[The mother] was highly distressed at the time of the initial interview as she described the abuse in the form of verbal put downs, physical abuse and excessive control by her partner of six years. The patient also felt trapped as she was 7 weeks pregnant at the time of our first meeting and did not know what to do although there was no doubt in her mind about wanting the child. … [The mother] described situations where survalience (sic) cameras monitored her movements at home, her partner’s son would also be abusive with her and therefore [the mother’s] sense of safety was challenged on a daily basis.
Mr O’s notes were produced on subpoena together with a helpful typed summary which he prepared.
In relation to a consultation on 10 December 2013, Dr J stated:
I examined [the mother] after she consulted me complaining of chronic headaches, photophobia, a “bruising-like” sensation to the left eye/ear/face, particularly towards the right eye. She stated that this was due to consistent ongoing violence perpetrated by her ex-husband and son. [The mother] stated that in this relationship she was continually (sic) in the back of the head, pushed down and her neck twisted and punched. My examination of [the mother] revealed slight tenderness of the TM joints and marked tenderness of the left eye. She confirmed that she is experiencing deterioration of vision in her left eye. I found her right eye to have visual acuity of 6/9 and the left eye of 6/60 which is a marked reduction. The left eye showed marked tenderness.
[The mother’s] neck and back were examined during this consultation as she complained of pain to her neck and lower back. My examination revealed tenderness of the facet joint. The cervical spine and straight leg testing of the lumbar spine showed bilateral decrease on the right and left side to only 60 degrees instead of 90 degrees which is normal, indicating some damage to the lumbar spine (disc contusion). [The mother] also complained of hip pain. I referred [the mother] for an MRI on her brain, cervical spine and lumbar spine. I later learnt that these results were normal.
In his statement prepared for the District Court proceedings, Dr J concluded:
Based wholly or substantially on the above knowledge, I am of the opinion that [the mother] has been subjected to physical, mental, emotional and sexual abuse at the hands of her ex-husband and her step-son. This has led to her severe depression and anxiety, necessitating referrals to a psychiatrist and psychologist. Her son [B] is now three years old, and she was always fearful of her ex-husband taking the child away from her, forcing her to seek the help of refuge workers.
I have not made specific findings in relation to a number of the mother’s allegations of family violence. Neither have I found that they did not occur. In assessing the evidence in relation to the mother’s allegations, I have had regard to the evidence of Dr C which is set out later in these reasons about the manner in which victims of family violence typically behave.
I have also had regard to Dr C’s evidence about the child’s presentation immediately after separation and the likely explanations for that presentation.
I accept that the mother may have exaggerated incidents through retelling and revisiting the events, as Dr C explained. However, I accept that the father was verbally and physically abusive to her. In particular I accept that:
· He physically assaulted her on 5 September 2011, 8 March 2012, 14 July 2012 and 23 February 2013;
· When the mother was pregnant with the child the father assaulted her causing bruising to her arms and belly;
· He assaulted her by kicking her and pulling her hair;
· He threatened to take the child from her;
· The mother remains afraid of the father;
· The mother’s fear of the father is caused by her experience of family violence perpetrated by him.
THE EVIDENCE OF DR C
Dr C, a Child and Family Psychiatrist, interviewed the father and the mother in September and October 2014 and prepared a report dated 25 October 2014. Dr C in her report stated:
[The child] presented as a healthy, active, handsome almost three year old boy, who was not heard to use a lot of language. As is age appropriate, his self-regulation is still evolving. During the assessment he demonstrated how, when overwhelmed by internal negative feelings (tiredness, frustration, a new situation, his mother’s anxiety), he whole bodily acts out (through tantrums, head banging, biting).
[The child’s] relationship with his mother is clearly very significant to him. He was observed at this assessment to test her, but also to allow her to comfort him, and enjoyed their playful engagements. In the refuges, [the mother] has been noted to be responsive and caring towards him, setting limits appropriately.
Historically, following the parental separation, [the child] had been observed to be “traumatised…extremely out of control”, reacting aggressively towards his mother and other children, with these aggressive behaviours significantly reduced in 2014 [Dr C was here referring to a report of the refuge coordinator]. Aged 21 months, in August 2013 he was briefly hospitalised ‘with behavioural problems’ (discharge summary, … Hospital) consisting of temper tantrums, head banging and breath holding.
[The child] was seen to become more distressed when his mother’s anxiety worsened. He has been observed by his mother’s support person to be unusually vigilant about visually tracking her movements, while his mother described him having long term clingy behaviour toward her, with an ongoing need to check on her whereabouts in their home.
These descriptions of [the child]’s behaviours are consistent with a very anxious, even traumatised, young child. The nature of the trauma he has experienced and the onset of the behaviours are disputed by his parents.
Dr C went on to outline the competing positions of the parents. The mother alleged that the child had been distressed before the parental separation because of his exposure to his father’s violence directed towards the mother. The father alleged that the child had not been behaviourally disturbed before the separation but became disturbed after he lost contact with his father and his brother. Dr C concluded:
The more likely aetiology for [the child’s] marked and concerning history of distress can best be deduced by an evaluation of the collateral sources of information each parent has to support his/her very differing version of events which have occurred in this family.
Dr C stated, in relation to the father:
[The father] presented at this assessment without any evidence of a major psychiatric disorder or an obvious personality disorder. However, there were suggestions of [the father] having entitled attitudes (living on welfare benefits), narcissistic perceptions and not being entirely forthcoming with all relevant details (such as why he was in the US in early 2013 for two months, leaving his very young son in the care of his distressed wife; his financial matters).
Serious characterological psychopathology in [the father] needs to be questioned because of [the mother’s] graphic allegations he has perpetrated marked family violence towards her (and others, including his son [E]). She described in him chronic, ongoing behaviours which are characteristic of abusive men …
Her photographs were alleged to depict injuries she sustained from multiple assaults (including to her pregnant abdomen), allegedly by [the father], while the 2013 recorded telephone message he left for [E] certainly was of an aggressive nature.
Denying [the mother’s] allegations he has abused her, [the father] opined her allegations and actions are the result of her manipulation by two other women he clearly attributes malice to, in particular from [E’s] ‘evil’ mother [Ms K] who had ‘not got over’ him. He believed [Ms K’s] written advice to [the mother] supported this alleged conspiracy against him, while [the mother’s] emails to him, during his stay in the US in 2013, demonstrated their positive (previously ‘perfect’) relationship.
In relation to the father, Dr C stated:
However, if [the father] is found by the Court to be the batterer alleged by [B’s] and [E’s] mothers, then he cannot have a parenting role with [the child B] until he takes responsibility for his behaviour and undertakes psychological work to understand and change this behaviour.
In relation to the mother, Dr C stated:
[The mother] presented with significant anxiety, which was exacerbated during references to the alleged family violence perpetrated on her and [the child]. Her counsellor and caseworkers confirmed her fears and anxiety have been present long term. Her presentation was consistent with her reports of being fearful on (sic) [the father].
During her interview, [the mother] was very anxious to be believed, repeatedly checking on what documents had been received by me and bringing in a lot of other material (mostly not sighted) she regarded as evidence, verifying her allegations.
Some of the ‘messages’ and ‘chats’ between [the mother] and [the father] in 2012 and 2013 (reproduced by [the father] and included in his affidavit) document some of her complaints about him and [his son], for example on 19 March 2013 she wrote ‘for things to get better you need to change and you need to respect what I also want and I will not be made to feel like shit for anyone’.
As previously mentioned, [the mother] described patterns of behaviour in him which characterise a ‘batterer’. She reported he was controlling: he dominated decision making, household responsibilities, sexual relations, finances, her outside social contacts (amongst other matters), he was entitled and disrespectful, feeling justified to use physical violence and intimidation when he considered it necessary; he had an expectation his needs were to be met and [the mother] centre her attention on him. She indicated he had been possessive, manipulative and sexually abusive.
Dr C made reference to material which had been considered by her which included an affidavit of Ms K, police records relating to E’s moving to live with his father, a hearing screen test which was conducted on 20 June 2012 by Ms T, records produced by Dr J, the mother’s counselling notes in relation to counselling in February 2013, the police application for an Apprehended Domestic Violence Order in April 2013, the notes of Mr O the mother’s psychologist in 2013 and his assessment of her in 2011, the Domestic Violence Service subpoenaed file, and a letter from Dr G dated 28 August 2012 where the mother described to Dr G assaults by the father.
Dr C concluded:
There were no findings from this assessment and mental state examination which would suggest [the mother] has fabricated her allegations that she has been subject to marked abuse from [the father].
Should Orders for [the child] to spend time with his father be made, [the mother’s] significant anxiety will exacerbate. Possibly her parenting and [the child’s] behaviour will deteriorate.
Dr C concluded:
Given [the father’s] denial, a finding by the Court of marked domestic violence perpetrated by [the father] will be necessary to protect [the child] and his mother from future harm by [the father].
Should such a finding be made, [the father] will have lost his right to parent [the child]. There should be no contact between [the child] and his father, until [the child] is old enough to make this decision for himself. Contact for the purpose of identification is likely to be a significant stressor for [the mother’s] mental health.
The extended paternal family’s apparently unreserved support of [the father] suggests [the child] spending time with other family members would place him in the middle of ongoing conflict and possible threat to [the mother].
If the Court does not find [the mother’s] allegations credible, then [the child’s] time with his father should be supervised in a contact centre initially and occur at a frequency to enable [the child’s] familiarity with his father and brother, on a 3-4 weekly basis. This might allow [the mother] to manage her anxiety and therefore be appropriately available to parent [the child].
Dr C was cross-examined.
In relation to the child’s presentation when he and the mother arrived at the refuge in 2013, as described in the notes of the refuge, Dr C noted that he was in a highly distressed state.
In cross-examination, Dr C said that the child’s behaviours could have been due to a number of factors, or a combination of factors, including the mother’s mental health, his chaotic and disorganised attachment to his mother, and possibly having experienced trauma as a result of domestic violence in his home.
Dr C rejected the suggestion by the father that the child’s presentation could be attributed solely to missing his father. She said that the child may well have had a chaotic and disorganised attachment to his mother as a result of her experience of violence which distracted her from her parenting of him.
Dr C said she had noted a change in the child’s behaviours which were clearly documented in the subpoena material from his pre-school. She said that he appeared to have become more settled, regulated and able to manage himself and his relationships well, in contrast to her observations of him in 2014.
In relation to her recommendation that the child live with his mother, Dr C said that she maintained that recommendation even if the Court came to the conclusion that the mother’s allegations of family violence were not made out.
She said that a change in the child’s living arrangements would challenge his resilience and the developmental gains he has made. He would have to adjust to life without his mother who is his primary attachment figure and would grieve for her. Dr C said that a grieving child could only be comforted by someone who is well known to the child and trusted by him, and the father does not meet those criteria.
Dr C said that she had significant concerns that the child would regress to the highly aroused and traumatised state in which he presented to the refuge in 2013 if he were removed from his mother’s care.
When asked whether she had seen any evidence that the mother was fabricating her anxiety, Dr C said that the mother’s presentation was consistent with someone who was highly anxious and that her presentation, along with other evidence relied on, appeared to her to be consistent with someone who has been traumatised.
Dr C was shown a record of Dr J, the mother’s general practitioner, where she reported to him in August 2016 that she continues to be in fear of her life and the child’s life. Dr C accepted that Dr J’s note indicates a consistency in the mother’s fears since she saw her in 2014.
In the course of writing her report, Dr C spoke to people that the mother had contact with after separation, who she said confirmed that the mother’s anxiety levels were very high and could become very high when she “felt threatened or remembered information”. Dr C said that this was evident from the transcript of the District Court proceedings where the mother was cross-examined. She said that transcript gave her concerns about how the mother’s anxiety can become extreme at times and she can decompensate when she feels overwhelmed.
Dr C was asked about the mother’s parenting capacity if the child were to live with the mother and spend time with the father, and what the impact on the child might be. She said, drawing on the transcript she had read of the mother’s evidence in the District Court proceedings, that she was concerned that the mother would find the child’s spending time with his father so disturbing for her that it would cause her to be in an aroused and decompensated state, and that the mother’s parenting would thereby suffer. Dr C said that given the intensity of the mother’s reactions and her perception that her and the child’s life is at risk, she believed that the mother could decompensate in such a circumstance.
Dr C accepted that if the child’s spending supervised time with his father made the mother so anxious that she exposed the child to her decompensated behaviour, this would cause a negative outcome to his relationship with his father. She also accepted that this would impair the mother’s relationship with the child.
However, Dr C acknowledged that, if the mother were able to remain well supported and manage the notion of the child seeing the father in a secure environment like a contact centre, that such contact would be beneficial for the child. She said that the situation would need to be such that it would be capable of managing the mother’s anxiety of being followed or of the child being followed home from the contact centre.
Dr C said that the mother’s behaviour when being cross-examined in the District Court proceedings does not support a hypothesis that she now has the capacity to manage her stress.
Dr C further said, when asked what would be expected of a relationship being developed between the child and the father in a supervised setting, that although the child would be able to engage with the father and make a connection with him, it would be limited and there would likely be no emotional attachment.
Dr C also gave evidence that, if the child were to be re-introduced to the father for the purposes of spending time with him, that it would be best for that not to occur at the same time as starting school. Dr C recommended a period of six months for the child to settle in at school before beginning a re‑introduction to his father. She also recommended that a re‑introduction to his father be facilitated by therapy, and said that the mother would need to be involved and supportive of such therapy by providing factual and sensitive information about the father to be relayed to the child.
I put a number of questions to Dr C of her opinion as to the veracity of the mother’s allegations given the factual circumstances of this case. I asked Dr C about whether any conclusions could be drawn about the veracity of domestic violence allegations where the alleged victim has failed to report incidents of violence to medical professionals or police. She said there should not be an assumption that allegations are false due to a lack of reporting.
Dr C was asked whether any conclusion could be drawn from the version of events given by Ms F and Ms H, who both said that the mother had not reported any incidents of violence to them. Dr C said she was unsure, but that it may be explained by their connection to the paternal family.
Dr C similarly said that no conclusion could be drawn from the mother telling only her step-father of the physical assaults; the mother’s denial of physical abuse in her antenatal examination; the mother commencing to live with the father in 2009 after alleging that emotional abuse occurred since 2003 and physical abuse since 2007; and the affectionate text messages she sent to the father during periods that she alleges he was physically and emotionally abusive to her.
Dr C indicated that when a victim of domestic violence is controlled by coercive and abusive means, it is not uncommon that they continue returning to the abuser. She said that such a level of coercion can explain why the mother commenced living with the father in 2009, and presumably, why the mother returned to the home with the father in December 2012 after having been at the refuge. Dr C conceded, when cross-examined by counsel for the father, that it is possible the mother returned to live with the father because the allegations are not true.
In relation to the mother having first made a complaint when she discovered she was pregnant, Dr C said that was likely to be consistent with the allegations being true.
In relation to the above factual scenarios put to Dr C, she said none of these scenarios are inconsistent with the occurrence of severe domestic violence. Dr C said that none of those matters put to her of themselves or in combination would lead to a conclusion that the mother’s allegations should not be accepted.
WHAT ORDERS SHOULD BE MADE?
The findings I have made in relation to the acts of violence perpetrated by the father upon the mother are such that the provisions of s 60CC(2)(b) of the Family Law Act (1975) (Cth) are brought into consideration. The law requires that the need to protect the child from being exposed to family violence takes precedence over the benefit to the child of having a meaningful relationship with his father.
Dr C, in her report, expressed her opinion that:
…a finding by the Court of marked domestic violence perpetrated by [the father] will be necessary to protect [the child] and his mother from future harm…
Should such a finding me made, [the father] will have lost his right to parent [the child]…
That is not, however, the law and the decision which is required here is to be based on a balancing of the competing primary considerations.
Although it was not the father’s case that if he were to have any contact with the child that contact should take place in a supervised contact centre, that was the tenor of the cross-examination of Dr C and of the submissions made on behalf of the father.
On behalf of the father, it was submitted that if orders were made for the father to spend time with the child in a supervised contact centre there would be no need for the mother to be involved and any fears she might have would be alleviated by professional supervision.
I do not accept that submission.
Dr C agreed in cross-examination that the best outcome for the child would be for him to have supervised time with his father so that, when he is old enough to make his own decisions about his relationship with his father, he will have some foundation on which to build that relationship.
However, Dr C was clear that it is necessary to consider the effect on the mother of such an arrangement and, in particular to consider the effect on the child if the mother’s parenting is destabilised.
Dr C was very concerned about the mother’s ability to cope if any order were made that involved the father and the child spending time together. Her concerns were based on her own observations of the mother and her reading of the transcript of the mother’s cross-examination in the District Court where Dr C observed the mother to decompensate and become highly disorganised. She also had regard to Dr J’s note in August 2016 to the effect that the mother continues to be in fear for her life and the child’s life. Dr C predicted that the mother was likely to decompensate if the father was re-introduced to the child’s life.
Dr C said that her concerns about the mother’s ability to cope would be exacerbated if she behaved in these proceedings in a manner similar to her behaviour in the District Court proceedings.
Dr C was not present in Court during the mother’s cross-examination.
When, before me, the mother was asked to contemplate the possibility that the child might spend time with his father in a contact centre, the mother became hysterical, and uncontrollable. Whilst it is difficult to compare the mother’s observed reaction in Court, before me, to her behaviour during cross-examination as revealed by the District Court transcript, the transcript did not reveal the mother’s reaction there to be as extreme as it was in these proceedings. It is reasonable to conclude that her extreme reaction was triggered by her being asked to consider the child spending time with his father. I accept that her reaction was genuine.
It is likely that, if any order were made which had the effect of re-introducing the father into the child’s life, the mother’s parenting would be adversely affected.
I accept the evidence of Dr C that, if the mother is unable to give the child secure and consistent parenting, their relationship will be impaired and the child will become anxious and lose his trust in her.
There are no available safeguards which would allay the mother’s fears for her and the child’s safety.
The child has no relationship with his father. His relationship with his mother is essential to his continued wellbeing and must be protected.
It is not possible for the child to have a meaningful relationship with both of his parents.
In coming to that decision, in addition to the matters already set out above, I have considered the following matters.
There is no evidence of the child’s views.
I accept Dr C’s evidence that the child has a secure attachment to his mother and that he has no relationship with his father. There is no evidence that the child has any relationship with any member of the father’s extended family.
I accept that the father has made every effort to spend time with the child and participate in his life since the parents separated.
There is no evidence that the father has made any contribution to the child’s financial support since separation.
The likely detrimental effect of a change in parenting arrangements for the child as proposed by the father has already been explored.
The practical difficulty of effecting the arrangements proposed by the father is clear. There is no evidence that any agency is able to provide long term on-going supervision. There is no evidence that supervision would allay the mother’s fears and ameliorate the likely detriment to her ability to parent the child.
I accept the evidence of Dr C that the father’s ability to parent the child, and to provide for his psychological needs, is cast in doubt by his violent behaviour towards the mother.
I accept that the father loves the child and wants to have the child in his life but it is his attitude towards the responsibilities of parenthood that causes concern. One of the most significant responsibilities of parenting is the need to respect the child’s other parent and to treat that parent with dignity. The father has not done so.
PARENTAL RESPONSIBILITY
Although the father conceded in cross-examination that it would not be possible for him and the mother to consult and each participate in decisions for the child, and he conceded that the parent with whom the child lived with should have sole parental responsibility for the child, in submissions counsel for the father told the Court that the father now sought an order for equal shared parental responsibility.
Counsel was asked to explain the father’s position, having regard to his evidence, but no explanation was given, other than those were the father’s instructions.
The mother’s attitude towards any contact with the father, however remote, is such that to require her to communicate with him would destabilise her parenting ability and this would have a consequential effect on the child’s progress and stability as has been explained earlier in these reasons.
It is not appropriate that the parents have equal shared parental responsibility.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 January 2017.
Associate:
Date: 25/1/2017
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