Monganga v Mofalesi & Mofalesi Monganga
[2007] NTMC 32
•21 June 2007
CITATION: Monganga v Mofalesi & Mofalesi Monganga [2007] NTMC 032
PARTIES: NADINE MONGANGA
v
LUCIEN MARDOCEE MOFALESI
AND
GEORGETTE MOFALESI MONGANGA
TITLE OF COURT: Domestic Violence
JURISDICTION: Court of Summary Jurisdiction
FILE NO(s): 20604786 & 20604946
DELIVERED ON: 21 June 2007
DELIVERED AT: DARWIN
HEARING DATE(s): 7 April 2006, 24 July 2006, 25 July 2006, 28 September 2006, 24 November 2006, 1 March 2007, 16 April 2007 & 23 April 2007
JUDGMENT OF: DAVID LOADMAN SM
CATCHWORDS:
Domestic Violence – Proof of Facts Alleged to Constitute Domestic Violence to “Briginshaw” Standard of Proof in Regard to Balance of Probability – Need in any Circumstance to Prove to such Standard likelihood of Future Similar Conduct
REPRESENTATION:
Counsel:
Applicant: Ms A McLaren
Defendant: Mr M Hunter
Solicitors:
Applicant:
Defendant:
Judgment category classification: B
Judgment ID number: [2007] NTMC
Number of paragraphs: 116
IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20604786 & 20604946
BETWEEN:
NADINE MONGANGA
Appellant
AND:
LUCIEN MARDOCEE MOFALESI
First Respondent
AND:
GEORGETTE MOFALESI MONGANGA
Second Respondent
REASONS FOR DECISION
(Delivered 21 June 2007)
Mr DAVID LOADMAN
1. Requirements for the granting of a domestic violence order are that firstly the applicant and respondents must have been in a domestic relationship. Since from a very young age until her 18th birthday the applicant was raised as a child (DOB 08/05/87) of the respondents, that aspect of aspect of the matter is satisfied.
2. The court must however be satisfied on a balance of probabilities to the standard required and known as “Briginshaw test”. In general terms that requires a higher or more strict a standard of proof than the general standard applicable to an ordinary civil matter. So the defendant must have assaulted or caused personal injury or damaged property of a person in a domestic relationship AND is, unless restrained, likely again to repeat one or more of those activities (section 4(1)(a)): or the defendant must have threatened to carry out one or more of the above acts AND, unless restrained, likely again to repeat such behaviour (section 4(1)(b)):. or, finally the defendant must have behaved to such a person in a provocative or offensive manner and such behaviour must be likely as to lead to a breach of the peace including such behaviour as may cause the applicant or another person reasonable fear of violence or harassment AND the defendant unless restrained must be likely to repeat such behaviour (section 4(1)(c)).
3. There is no definition of “assault” and in the circumstances this court finds that such activity is behaviour which accords with the provisions of sections 187 and or 188 of the Criminal Code NT.
4. Personal injury is such an injury as is the subject of the law of tort and includes both physical and psychiatric injury. Provocative or offensive behaviour, violence and harassment bear their ordinary meanings.
5. The basis of the applicant’s case is to be gleaned from three affidavits sworn by her, supplemented by her oral evidence. The affidavits in question are dated the 14 February 2006, 8 March 2006 and an affidavit where the jurat is not completed, but bears a receipt stamp from the courts registry office, of 6 April 2006, which is the date by which such affidavit will be identified in this decision.
6. The complaints are:- in the affidavit 14 February 2006.
“4. Ever since I can recall I have been treated poorly by Defendants however recently this treatment has gotten worse. I am fearful of my life.
5. For the past 18 months Lucien has become increasingly abusive towards me.
6. On two separate occasions both Lucien and Georgette have tried to strangle me. In or about October 2005 Georgette grabbed me around the neck and was strangling me. After the incident I had scratches and marks on my neck which my friends saw. A couple of weeks later Lucien also tried to strangle me. He also grabbed me around the neck. Afterwards I could not talk properly and I was coughing up blood. I was unable to seek any medical help. [ no explanation is given as to why such inability existed nor was any explanation given as to why the police were not approached.] It is also apposite to point out that the location, the extent of the physical attack and the other details which in a quasi criminal matter such as this require specification is simply not provided.
7. They have both slapped me on the face on numerous occasions. On one occasion Lucien punched me in the face which caused my nose to bleed and chipped my tooth. [There is no evidence of any dental attention and no such injury was pointed out to this Court]
8. The defendant had become increasingly abusive towards me. Lucien calls me names and says I am a ‘prostitute’. He has threatened to kill me on a number of occasions. He has said words to the effect that ‘he will kill me’ or that he will ‘have someone to kill me’.
9. On 13 December 2006 Lucien took me to the Democratic Republic of Congo. He took all my documents including my passport and my identification and my telephone sim card and drivers (sic) licence (sic) and abandoned me there. I was only able to return to Australia on 12 February 2006, whereby I have sought refuge and assistance in a shelter. I wish to complete my schooling in Darwin however I am fearful of the defendants and scared for my life”.
7. It is noteworthy that very little detail of most of the alleged incidents is supplied and certainly no dates in relation to most of the conduct complained of are set out in the affidavit of 14 February 2006.
8. The affidavit of 8 March 2006:-
“4. Approximately 3 years ago and whilst we were still in Nairobi Lucien began making sexual advances towards me. He would touch my body including my breasts and he would try to take my clothes off. I did not like this and asked him to stop. I would try and push him away, but he would ignore my protests. This would occur when Georgette was not at home, which was a number of times each week”. (No dates, times or other appropriate factual details or specifics are provided.)
It is noteworthy that none of these preceding allegations appear in the affidavit of 14 February. Noticeably the contents of paragraph 7 of the 14 February allegations are the same as those set out in paragraph 5 of the 8 March affidavit.
Paragraph 8; ‘he was going to be the first person who did so’ (sleep with me)
Paragraph 9; In or around the end of 2004 I contacted Frederica Gaskell who works at Anglicare. I told Frederica about Lucien’s constant sexual advances towards me. (The underlining is the Courts underlining.) Again it is not specified as to the dates, places, times or manner of the alleged sexual advances and the allegation of constancy is simply incapable either of proof or answer.
Paragraph 11; In or about March of 2005 there was one occasion when Lucien was touching me and I asked him to stop. I became so angry at him because of what he was doing to me that I shouted at him and told him if he did it again I was going to report him to the police. Lucien became very angry. He threatened me and said that if I went to the police he would kill me. It was at this time that I stated (sic) to become very afraid of Lucien.
Paragraph 12; Lucien has since threatened to ‘kill me’ or to ‘have someone kill me’ on numerous occasions. He even stated that if I was to move interstate he would find someone to ‘kill me’”.
Paragraph 17; it is noteworthy to observe the repetition of the alleged incidents comprising domestic violence and invite criticism about that fact, there being no good purpose served by repeating allegations contained in one affidavit in a second.
9. The third affidavit of the applicant is “dated” 6 April 2006. It responds to an affidavit sworn by the second respondent and the court’s observations will be confined to those aspects of the response which are alleged to comprise the acts of domestic violence sought to be advanced as the basis upon which an order should be made. It is interesting to observe that in paragraph 25 the applicant does not raise the allegation of an assault by the first respondent in October 2005 at all.
10. Little focus will be directed to all of the extensive matters concerning the so called abandonment in Africa, for reason ultimately a no case submission was upheld in relation to that matter.
11. A classic example of the prolixity and irrational drafting of this affidavit is the response to paragraph 68 of the second respondents’ said affidavit. The second respondent says that she received a telephone call from the applicant’s mother who told her the applicant would not be coming back to Australia. In paragraph 69 of the affidavit of 6 April 2006 the second conversation is traversed where the first respondent tried to persuade the applicant’s mother not to allow the applicant to stay in the Democratic Republic of Congo and to compel her to return and expanded upon in paragraph 70. All of these allegations are denied without any logical premise being advanced for the denial. It isn’t clearly possible for the applicant to have been present with her mother at every moment of the day and the refutation of these discussions occurs in this courts’ perception utterly illogically and only because they certainly do not advance the proposition of being abandoned as alleged.
12. The applicant then refers to the affidavits sworn by Fatuma Muhudin and denies the occasions when that person recounts conversations with the applicant which were to the effect that the applicant says she was going to Africa and going there to see her mum and dad, which is conveniently denied by the applicant, but which obviously adversely reflects on her credit. This Court accepts without question that the applicant was the author of such intimations.
13. The Applicant then refers to the affidavit sworn by Alioni Alison Marcello of 17 March 2006. This deponent is a magistrate and he testifies to a meeting in his chambers at which the applicant’s mother, the applicant and the first respondent were present; that the latter two spoke English fluently and the applicant’s mother was aided by an accredited court interpreter who effected the necessary interpreting in respect of communication with the applicant’s mother. He observed that there was no tension apparent and the demeanor of all parties was in his perception relaxed; he denies the existence of any pressure or duress by the first respondent towards the applicant and states that these are the only Congolese people he has ever met who returned to visit Uganda, as a consequence of which he says his memory is very clear.
14. Without going through her allegations in detail, the applicant refutes every aspect of her affidavit of 12 January 2006 was ever executed freely and of course she would have to do that because the affidavit concerned confirms the version of events of the first respondent. She even goes so far as to say that she saw the first respondent pay the deponent an amount of $20,000 then he subsequently expresses Ugandan shilling. The court rejects out of hand the assertions as to the corruption of or the bribing of Mr Marcello, but doesn’t go into the matter in further detail for the reason of the no case submission in respect of the abandonment being upheld.
15. The applicant then responds to the first respondent’s affidavit sworn 30 March 2006 and again only those matters which relate to either credit or the circumstances said to comprise domestic violence will be visited by the court. Further and in any event many of the paragraphs of this affidavit were struck out prior to its admission.
16. Yet another example of the prolixity and illogicality of the drafting of this affidavit is to be found in the reference to paragraph 22, a reference about a meeting with one Frederica Gaskell, at which the applicant was not present, but about which she makes comment and obviously is absolutely ill equipped to do, so the consequence simply being a further wasting of the court’s time and focus. It is also pertinent to note that the complaint addressed allegedly by Frederica Gaskell and set out in her affidavit of 7 March 2006 is a complaint discretely confined to (paragraph 5) an allegation that in July 2004 the applicant disclosed to Gaskell that Lucien had said “nobody will sleep with her and that he will be the first”. This conflicts with the applicant’s oral evidence
17. In response to paragraph 28 the applicant says in part “False, because he did force me to have sex with him …”. In fact at no stage anywhere in her evidence is there any allegation which supports the contention that the first respondent forced the applicant to have sex with him.
18. The response to paragraph 30 of the first respondent’s affidavit is simply non responsive.
19. Although it is obviously not the province of the court because of the no case submission being upheld a liberty is taken. The court is fully aware that one only requirse yellow fever vaccination if going to Africa as opposed to Europe and the suggestion that this health official also was in someway corrupt or corrupted is yet in the Court’s finding another example of “gilding the lily” by the applicant.
20. The response to paragraph 43 is interesting because the allegation is that the first respondent questioned the applicant as to whether Samira had been told about her trip to Africa. She doesn’t say that she didn’t tell Samira because there was no such knowledge existing in her mind she merely says that she didn’t tell her anything because she didn’t have her telephone number.
21. To summarise, the incidents of domestic violence said to comprise the alleged incidents which establish that fact (in the court’s language and not in the language of the applicant), are:-
I. the alleged abandonment by the first respondent of the applicant in the Republic of Conga or Uganda in December 2006;
II. an alleged constant pattern of harassment and sexual overtures from 2001 onwards obviously necessarily having to be terminated by the separation from the first respondent in December 2006;
III. an allegation that in August 2005 the first respondent attempted to smother the applicant with a pillow;
IV. an alleged joint attempt by the first and second respondents trying to strangle the applicant in September 2005 with such degree of force that she coughed blood for a week;
V. an allegation that in October 2005 the second respondent grabbed the applicant around the neck leaving marks which were shown to Samira Seidu;
VI. alleged rape or attempt to rape the applicant in Kampala (Uganda) and Arua (Uganda).
VII. The alleged attempt at touching the applicant in March 2005 which resulted in allegedly threatening to report the incident to the police.
VIII. Following upon the above incident it is alleged that the first respondent threatened the applicant with death if she reported the matter to police and “Lucien has since threatened to kill me or to have someone to kill me on numerous occasions.
IX. He even stated that if I was to move interstate he would find someone to kill me”. [It is to be observed that there is no direct evidence in any of these allegations as to the place or the date where such threats were allegedly made. They all comprise in VII, VIII and IX above allegations of such generality as to be intrinsically vague and totally insufficient for the purposes of proving an act amounting to domestic violence as defined in the Act].
22. Although it bears on nothing, it is worth recording that at the outset of the matter on 24 July 2006 and thereafter on numerous occasions Mr Hunter on behalf of both respondents was prepared to cause them to consent to an order without any admission providing the allegations, many of which are accurately described by him as heinous, were withdrawn. On every occasion such an issue arose the applicant’s solicitor, allegedly on instructions, declined to entertain the expeditious, but practical and effective disposition of the matter in that way.
23. The extensive allegations in relation to the alleged abandonment in Africa will simply not be traversed in any detail because of the upholding of the no case submission. There seemed to be some confusion in his mind of the applicant’s solicitor about that, That will be put that issue to bed at the outset. The Court raised on numerous occasions its perception that such a course of events could not fall within the definition of violence under the Domestic Violence Act and could not therefore ground any order under that Act by this court. The applicant’s solicitor persisted in the contention that such incidents amounted to violence under the Act and entitled the applicant to relief. The transcript is somewhat confusingly numbered, but in the event the formal finding of the court is recorded in the transcript of the proceedings held on 28 September 2006 at transcript page 78 and the finding is in the following terms:-
“In relation to the matter before me, the case was opened in relation to those allegations which are sought to be the basis upon which this court ought to grant an order under the Domestic Violence Act.
The instances of behaviour which are said to attract the invocation of the Act are first of all that which I call abandonment, and I do not believe there is any difficulty in comprehending what is being talked about. It is all of the evidence which relates to the alleged formulation of a plot and the carrying out of that alleged plot, by taking Nadine to the Democratic Republic of Congo via Uganda, and all of the evidence, which in terms of categorising the evidence, probably amounts to about three-quarters of it, concerns that issue discretely. Within the time frame of course there are other allegations made which raise different alleged opportunity to apply the Act.But on (sic) relation to that whole issue of the so-called abandonment, I uphold the submission of Mr Hunter. There is no prima facie case which allows the application of any section of the Domestic Violence Act. The nominated section of the Domestic Violence Act, that is the section nominated by counsel for the applicant, is section 4(1)(a) in relation to the abandonment. In that it is said that the particular course of conduct, that is its planning and putting it into effect, caused a personal injury said to amount to, as I understand the submission, to something consonant with psychological trauma. There is no medical evidence about that, of course, and in my finding there is no capacity to apply that section to that course of abandonment which has been in the principal complaint before this court [both because intrinsically it does not amount to an assault, nor an injury or if in concept it may have amounted to an injury, no injury at all is established of a psychological or physical nature there being no medical or psychological or psychiatric evidence adduced to establish that an injury occurred as a consequence to the alleged conduct].
Even if that was wrong, if that alone was to found the basis upon which the court was to grant an order, it would have be shown that he was going to abandon her in Africa again. There is no evidence in relation to that aspect of the matter, insofar as it needs to be enlivened, in the light of my comments in respect of the fact that it can not engender the application of that section”.
24. It is to be noted that in relation to all of the said remaining grounds of entitlement for an order under the Domestic Violence Act, whatever form they take, and even assuming that the court was to find (which as will become apparent in due course it does not) that such incident or incidents occurred, there is not in one single instance any indication that there is any likelihood of the incident or anything like it recurring in the future. The constant raising of this issue by the court with the applicant’s solicitor simply bore no fruit. The response from the applicant’s solicitor was constantly that the burden of proving future likelihood was easily explained because the Court would have to accept that the non-occurrence of any alleged domestic violence after December 2006 was due entirely to the fact that the current proceedings were in train.
25. The fact of the matter is there has not on any version of the evidence ever been even contact by either of the respondents with the applicant at any stage since she separated for want of a better word from the first respondent in Africa in December 2006. There is no evidence of any threat being made by either of the respondents to any third party to communicate, harass or perpetrate violence towards the applicant, but the frequent references by the court to the absence of any such evidence were never embraced and dealt with in any professional or appropriate way by the solicitor for the applicant whose conduct in this matter falls within the inappropriate conduct of the practitioners’ recited in the matter of “Griffiths” the citation of which does not for current purposes matter, where His Honour Mr Justice Brooking of the Victorian Supreme Court remarked upon a reprehensible and undesirable course of conduct by Counsel, to paraphrase him, such conduct comprised embracing the raising of every conceivable argument no matter how specious, the ventilation of every single conceivable fact or point no matter how insubstantial or inconsequential, the chasing down every burrow of every rabbit no matter how utterly irrelevant or unimportant and as in this case, the obdurate and persistent references to matters ruled by the court as not being relevant. Notwithstanding a fairly recent admonition of the court as currently constituted by the Chief Justice, asserting it was inappropriate for criticism of professional incompetence this Court rejects the contention it was inappropriate. This Court’s conduct is not subject, in the exercise of its judicial power, to direction by the Chief Justice or anyone else and where the conduct of the case by Counsel is woeful or otherwise inappropriate or unprofessional this Court has and will continue to criticise if it is so inclined.
26. Against the background of the allegations made by the applicant towards either the first or the second respondent or both of them, it should be pointed out that there is a single significantly important piece of evidence in this courts’ finding, which is the first of many matters casting aspersions on the credibility of the applicant. The court refers to the fact that notwithstanding the extremely serious nature of the allegations made, particularly those of assault and constant sexual harassment and intimidation, the issue of the Xmas card, exhibit R1 is highly relevant. The applicant first said in cross examination that a Christmas card which was undeniably given by her to the respondents was given to them in December 2005. She then sought to resile from that and at TR (19) then asserted 2004 was the year. In either event given the severity of the allegations that are made it reads as follows:
“To my family,
Hey! Guys, every time of my life I’ve never been blessed by having a family like you and nobody have never given me love as you had and continuing to do for me.
So I wish you all the best through your Xmass and the coming New Year
With
Nadine” (Quotation is in accordance with the manuscript on the card)
27. It is extremely unlikely or at least highly improbable that such gratuitous and complimentary comment would have been made by a person who was sincerely contending the existence of those matters which have been set out above comprising the basis upon which she seeks a domestic violence order.
28. At TR(31) the applicant was cross examined in relation to firstly an allegation (which is illogical) that in the New Year (2007) “Christmas Day at 12pm” the first respondent tried to have sex with the applicant which she then “corrected” to Christmas Day. The time being at large
29. At TR (32) the evidence was that exhibit R7 a photograph was taken on the 22nd December 2005 some time after the first respondent had allegedly tried to rape the applicant in Kampala. Notwithstanding the applicant’s Counsel’s frequent submissions and assertions in relation to this and all the other exhibited photographs to the effect that the demeanour or mien of the applicant properly perceived as portrayed in the photographs was that she was in fact not happy at all, that is simply not born out in the Courts perception in relation to this or in deed any of the other photographs tendered. The posture and apparent demeanour of the applicant is simply not concomitant with a young female who has survived an attempt, allegedly a violent attempt, at rape on two or more occasions in a matter of days or on another construction of the evidence somebody who was forced to have sex with the first respondent.
30. So also it is so in the photograph R8 allegedly taken after an attempt at forcing the applicant to have sexual relations with the first respondent on which ever one of the three time frames the Court may choose to focus upon. It is manifest nonsense to suggest that photograph either reflects any form of tension or hostility or otherwise. It does nothing other than convey to this Court a state of felicity.
31. Allegedly on the occasion when alleged forceful sex was suggested to the applicant by the first respondent, the force used was such that she allegedly cut her leg on the side of the bed. You would have thought in such instances she might have been completely uncooperative in having voluntary family photographs taken.
32. None of the other allegations said to comprise domestic violence was the subject of any revelationary evidence either in examination in chief or cross examination so what is stated about them in the affidavits by the applicant stands as her only “evidence”.
33. Samira Seideu gave evidence in relation to the alleged grabbing around the neck of the applicant by the second respondent in October 2005. In cross examination (transcript 26) she referred to a scratch which showed white. It was pointed out to her that in her affidavit she described the phenomenon as a bruise and blamed the solicitor who drafted the document for misrepresenting her observation. The Court rejects her evidence, for reason of this conflict. Given the explanation of the distinction between a bruise and a scratch she can best be described as evasive, but in the event certainly not convincing.
34. Francis Saaka gave evidence. It was not supported by the applicant that at a meeting in November on a Sunday in 2005 his daughter Samira whose evidence about this has been rejected of course, described “a mark of assault around her (the applicants) neck” and the new “evidence” from him is that indeed as a consequence of the first respondent’s behaviour the applicant was planning to commit suicide (certainly not the subject of any evidence by the applicant). It is alleged that at this meeting the first respondent admitted an assault, but the nature of the assault, the date of the assault is not given and the evidence is completely useless as far as this Court is concerned. Even when pressed by the Court Mr Saaka would not respond to the question aimed at trying to clarify the most peculiar phrase “marks of assault” which simply confused his evidence and impinged on his utility.
35. Fredericka Gaskell then gave evidence and significantly in examination in chief in reference to the notes taken by her she confirmed that on the 29 January 2006 she was adamant that the applicant had told her “they were going on holidays to the DRC to see her mother and other relatives via Brussels”. She specifically refuted the suggestion that it was the first respondent who told her that. Contrary to her affidavit she also alleged TR (107) that in 2004 at Darwin High School (referring to the applicant) “her uncle has suggested some sexual advances to her”. She conceded the first respondent at a meeting arranged by her denied ever making sexual advances with the applicant, but that he did concede that he had made the statement that he would be the first person to sleep with her, but in relation to that admission said that he was merely joking. It goes without saying that that is a joke in poor taste if it could be called a joke at all, but it hardly amounts to domestic violence as defined, at least in this Courts perception that is so and in any event is denied.
36. Mr Hunter then raised the obvious conflict in evidence between the assertions that Nadine had told her that she was going to visit her mother in Africa and the succeeding evidence. In paragraph 12 of her affidavit she maintained “she told me she had not realised they were going to Africa”. Even when faced with the need to make a concession as a matter of irrefutable logic she refused to do so. Clearly there is a contradiction and her refusal does her no credit. Again in relation to the affidavit the statement made about being the first person to sleep with her is completely inconsistent with an allegation by the applicant that the applicant said to Gaskell sexual advances had been made by the first respondent. It is the Court’s finding that Ms Gaskell is an unreliable witness and her evidence is rejected.
37. Although the evidence of Prendergast is related to the so called abandonment issue which was the subject of a successful no case submission her conduct is so extraordinary and so improper and out of order that to refrain from saying so would be an encouragement of other public servants to behave in a similarly inappropriate manner. For that reason the Court will comment on certain manners concerning her involvement in relation to the so called abandonment issue. Firstly it is quite clear that she was instructed by her superiors as an officer of DIMA to “stay out of the matter”. That is from a departmental point of view there was no authorisation or entitlement for her to intervene as an officer of DIMA on the department’s behalf.
38. It is also trite that she out of her own pocket made a contribution to assist the applicant in circumstances which she had made no contact with either the first or second respondent and done nothing to investigate whether the assertions made by the applicant had validity or not. That in itself is simply extraordinary and is a matter which in the Court’s view should be the subject of some departmental scrutiny. Perhaps it was for that reason that Mr Lee appeared as it were to endeavour to brush under the carpet inappropriate conduct by a departmental officer in relation to a matter raised with the department that was then taken hold of by the individual and pursued privately contrary to departmental instruction and exacerbated by the unauthorised engaging of Australian Consular personnel in Kenya who were instructed to and did pursue the private frolic of Ms Prendergast outside of her authority as an officer of DIMA.
39. As if that was not enough, knowing that the first respondent possessed a valid air ticket which would enable the applicant to travel back to Australia and a valid travel document to which not only was he not entitled, but in relation to which he had been desperately trying to surrender, no request was made of him for either document the obtaining of which would have been the most expedient and least expensive course of action not engaged upon because the applicant “would rather we didn’t”. The applicant’s wishes were such because she did not wish the first respondent to know that she was or did intend to return to Australia. How nonsensical. He did indeed know within a nano second of her return that she had returned and the reason given by her is obviously specious. Of course, not withstanding the absolute prohibition on DIMA being involved all of the relevant communications emanate from DIMA and the instructions given to the overseas consular representatives of Australia emanate from DIMA and if there is nothing more to be said about this outrageous conduct which is an absolute abuse of departmental power it is lamentable in the extreme.
40. At TR (55) the revelation not supported at any stage by evidence from the applicant is that the applicant said to Prendergast “he said I could return with him if I had sex with him”. The Court does not believe Ms Prendergast and no evidence of a similar nature is forthcoming from the applicant. It is simply another indication of a wholly inappropriate and biased perception, but more importantly smacking of recent invention for the purposes of trying to cover the inappropriate tracks embarked upon by Ms Prendergast.
41. Apart from the no case submission succeeding in relation to the so called abandonment with a great deal of reluctance and with no conviction as to absolute propriety, the Court ruled that the other allegations said to comprise an entitlement to a domestic violence order were established to a prima facie standard. The Court did so with much misgiving because it perceived (and accurately so) that the proceedings were thereby to become further protracted as indeed they did, subsequently involving hearings on the 24 November, 1 March, 16 April and 23 April 2007 all of which in sum total did not and logically could never have advanced the applicant’s case unless as the Court observed to the applicant’s solicitor, the respondents “shot themselves in the foot”. Such admonition did not in the slightest deter the applicant’s solicitor from pursuing what objectively could never amount to anything more than “the straw sought by the drowning man”.
42. On 24 November 2006 leave was given to the Barrister for the respondent to recall the applicant. The second respondent Georgette Monganga thereafter gave evidence and essentially confirmed the allegations set out in her affidavit which she swore on the 30th day of March 2006. Some passages of that affidavit were struck out. At TR (22) she denies other being present with the first respondent or on any occasion that she was alone, that she grabbed the applicant by the neck. Further that, and this of course is highly relevant in relation to the likelihood of any domestic violence being likely to continue in the future, she said she had seen the applicant several times including every Sunday at Church and various other places in and around Darwin and its suburbs. At no stage had she ever approached the applicant and talked to her, greeted her or attempted contact via a third party or at all or even engage eye contact with her.
43. Cross examination then commenced apparently with the motive of firstly establishing a lack of appropriate familiarity with the English language by the second respondent. The Courts conclusion after this aspect of cross examination concluded was that the second respondent was possessed of adequate knowledge of English and that she understood what she had deposed to in her affidavit and that her knowledge of the English language was sufficient for the purpose of her adequately giving evidence and understanding the evidence contained in her affidavit. She conceded the obvious that beating a child until the arm was fractured was an act of violence. Of such she said however that she did not see and had no direct knowledge of whether the first respondent had beaten his son Israel in such a manner. This of course is related to probably at least the tenth attempt by the applicant’s solicitor to try and introduce any violence towards the child Israel by the first respondent as in some way probative evidence in support of the contention that a domestic violence order ought to be granted for that reason (TR41 of 24/11/06). As has been previously observed this is specious in the extreme, utterly irrelevant and the constant refusal to observe that ruling is inexcusable.
44. At TR 41 above there is also recited a denial by the second respondent of the first respondent grabbing the applicant around her neck in September 2005 and trying to strangle her.
45. TR (42) reveals a denial of any strangulation occurring at the instance of the second respondent in October 2005 and she denies that she in October 2005 observed any scratch marks on the neck of the applicant.
46. For what it is worth TR (53) she denied telling “Tracey” that the applicant was going to Belgium on holiday and TR (54) the Christmas card which has already been referred to was given to the family by the applicant in Christmas 2005. Notwithstanding this assertion counsel for the applicant persisted in trying to elicit an admission that is was 2004 which failed.
47. At TR (56) the second respondent admitted that in 2001 in Nairobi the applicant had complained to her that the first respondent was making sexual advances towards her and that following upon the applicant visiting Lucien’s bedroom (allowing for some mix up with gender) that incident caused her to leave the house for two days. The matter was never pursued so all the Court knows is that there was a complaint, whether it was justified or otherwise has not been established. It was denied by the first respondent.
48. At TR (66) (again) the second respondent gave evidence that she had seen the applicant often at Church and at the Casuarina bus exchange and not on any single occasion had she ever approached the applicant.
49. At TR (71) the second respondent denied the applicant had ever made a complaint that whilst in Australia the first respondent made sexual advances to her at any time.
50. Fatima Muhudin adopted the contents of her affidavit of the 1 April, which to summarise contained allegations that for some time the applicant had been planning a trip to Africa for which she was saving, but most significantly that in December 2005 when the applicant and the first respondent were departing from Australia at the Airport in the proximity to the secure passenger area the applicant had said to her “you know I’m going to Africa to see my mum and dad”. She continued to explain, that since she had assumed the respondents were the biological parents of the applicant, that she thought she had misunderstood the position, but subsequently had verification from the second respondent. That of course, again reflects adversely on the credit of the applicant.
51. In cross examination at TR (78) the second respondent denied the applicant had ever said anything to her about the first respondent making sexual advances to her and (another preposterous submission from the applicant’s solicitor) “even when she’s crying she looks happy, doesn’t she?” (she is the applicant).
52. After some editing of the affidavit the edited affidavit sworn by the first respondent on the 30 March 2006 was adopted as the evidence in chief of the first respondent.
53. The Christmas card (exhibit R1) the first respondent said was shown to him by the second respondent shortly before he and the applicant left for Africa, in December 2005.
54. In general terms the first respondent said upon returning to Australia he kept the return ticket for the applicant alive by doing whatever was necessary in that regard. He also gave evidence in relation to matters concerning the crossing of the applicant into the Democratic Republic of Congo from Uganda and because of the issue relating to the no case submission the Court finds no great benefit is to be derived from traversing all of this evidence. Suffice it to say that it is this Court’s finding that at all material times the applicant was in possession of whatever documentation it was necessary to have or have executed in relation to her entry and her departure from the Democratic Republic of Congo. That she travelled to that place voluntarily to be with her mother and that the circumstances testified to in the affidavit sworn by the Magistrate Marcello on the 17 March are correct. Further that the contents of the statutory declaration of the applicant of January 2006 were not in any way obtained by duress or undue influence or in any circumstances which would impugn those allegations and the Court accepts those allegations as being true and correct expositions of the state of affairs of the state of mind that existed at the time the applicant swore them.
55. The matter was then adjourned to the 1st March 2007 on which the date was fixed for hearing to continue as it did on the 16 April 2007 and finished on the 23 April 2007. The transcript in relation to those last two days is thankfully consecutively numbered from 1 to 187 and references to that transcript will simply be “TR” and the number. At TR (4) the first respondent denies there was ever a plan to go to Europe and stated that he would not have been able to afford that exercise which was supported by bank statements tendered.
56. In relation to the stay at the hotel at Kampala the first respondent identified the originals of LM3 to his said affidavit which went into evidence as R28. These documents corroborate the change of two rooms for both the applicant and the first respondent to a single room, in which the first respondent’s evidence was there were separate beds, the move being occasioned by financial hardship implicitly denying any veracity in the allegation that he tried to have sex with the applicant in this hotel in either room.
57. At TR (10) the first respondent denies that any contact had ever been made by him with the applicant since separation in December 2005 and that he had never sought to make any contact with the applicant, despite his being aware that she had been trying to contact him through third parties.
58. At TR (13) there is reference to a series of photographs taken at diverse locations (except for R3) in Uganda where the applicant’s mother, the first respondent, the applicant and several other family members gathered on diverse occasions. In general terms in all of these photographs those being photographed exhibit contentment, relaxation and happiness notwithstanding the absolutely incomprehensible and persistent attempts by the applicant’s solicitor to contend that that which in this Court’s observation is inescapably obvious was in fact the antithesis of the situation postulated by her namely tension, misery and fear.
59. At TR (18) the first respondent denies being involved in bribing Magistrate Marcello and denies any knowledge of anyone else doing so. He recounts there were no fees paid to anyone including the Magistrate and of course, as has already been the subject of recitation in this decision, the Magistrate himself has sworn an affidavit of 17 March which the Court has already observed the contents of which it accepts unequivocally. Pedantically The Magistrate does not explicitly deal with an allegation that he accepted a bribe, perhaps because to have put commission of such a criminal act to a Judicial Officer may well have resulted in a total lack of cooperation if not more.
60. At TR (21) a further example of the bizarre conduct of the applicant’s solicitor is demonstrated. She asked at the outset of the first respondent’s cross examination whether he was convicted of certain traffic offences. When questioned by the Court as to the purpose of the question the answer proffered by Counsel was that it related to the first respondent’s credit. This of course is manifest nonsense. In exasperation for reason of expediency she was allowed to continue with the “furphy”.
61. At TR (26) the first respondent admitted that his defence of the application was motivated by a desire not to prejudice his application to become an Australian Citizen.
62. At TR (34) the first respondent gives evidence of taking to Prendergast at the DIMA office and showing her the relevant ticket, that is the applicant’s return ticket or tickets back to Australia, which he had omitted to set out in his affidavit of 30 March. The first respondent said he had surrendered the applicant’s Ttitre de Voyage on the 13 February 2006, confirming also TR (37) that it was the applicant that wanted to stay in the Congo of her own free will, a circumstance with which he was not happy and resisted stating the obvious, that in any event it was not within his power to exclude her return to Australia that being a matter entirely for her and the immigration authorities.
63. There was much cross examination about the 22 December 2005 or the apparent date, being single entry visas and the like but at TR (43) the first respondent denied, as it were having that endorsement forged on the Titre de Voyage when the document was in his possession. Those documents ostensibly given to the applicant when absent in the Congo were surely travel documents issued to the applicant by the Congolese authorities which she used to enter and leave the Democratic Republic of Congo and he said they were handed to him by the applicant as they inevitably and irrefutably must have been. Bearing in mind this whole issue can only be related to issues of credit in light of the Court’s findings in relation to the no case submission no further focus will be made on same..
64. At TR (52) and (53) a further example of absolutely outrageous conduct on the part of the applicant’s solicitor is revealed. There is an attempt to suggest (bearing in mind it has never been an allegation by the applicant at all with respect to which an order is sought) that the posture of the first respondent, in what is obvious to the Court as an innocent photograph, is a portrayal or depiction or corroboration of the fact that the first respondent was guilty of making sexual advances to the applicant. As the Court remarked on the occasion of this “revelation” by the applicant’s counsel such a suggestion and direction of such a question is to be classified as preposterous and unprofessional.
65. At TR (54) the allegation of sexual advances by the first respondent in Kenya between 2000 and 2003 was addressed which was an issue overlooked by the Court, but following up on a reference to the applicant’s affidavit of the 8 March 2006 appropriately returned to at TR (55) the answer is “I never made any sexual advance to Nadine anywhere in the world and further denied ever touching her body or trying to take her clothes off at all.”
66. Further the first respondent denied that during that (or any other) period he had ever behaved in a violent manner specifically a physically violent manner towards the applicant. With lightening agility, but in defiance of either common sense or logic the applicant’s solicitor leaped from Kenya to the alleged occasion where the first respondent allegedly punched the applicant in her face causing her nose to bleed and chipping her tooth. He denied ever doing so.
67. Then again completely unrelated, irrelevant, non probative issues concerning an alleged assault on one Jane Kennedy were introduced by the applicant’s solicitor and then back with the speed of light to Kenya 2001 where the first respondent denied the allegation of sexual harassment to the applicant and leaving of the home by the second respondent or the occasion of the applicant entering his room in respect to some birthday party. At TR (56) he was asked whether having arrived in Australia in 2003 he continued to make inappropriate sexual ovotives to the applicant and he denied that was ever the case.
68. The first defendant denied being in Fredericka Gaskell’s office (TR (57)) on the 19 November 2004 and denied ever saying that he would be the first man to sleep with the applicant. He conceded that he had attended at Fredericka Gaskell’s office in June 2004, but that he had never discussed on that occasion any issue concerning the applicant or his alleged sexual advances or comments and then for the umpteenth time, notwithstanding the prohibition pronounced with monotonous frequency. the applicant’s solicitor again returned to the issue of an alleged beating of his son by the first respondent.
69. It then emerged that apparently fractionally relevant issue in respect of credit was contained in a record of interview in respect of some criminal charges. It emerged by revelation through Mr Hunter that in fact these charges were withdrawn and furthermore that one Julie Franz, a solicitor in the employ of the Northern Territory Legal Aid Commission had successfully objected to the incorrect recording of those utterances by the first respondent and they were “pro non scripto”. Given both of those matters there is yet another example entirely inappropriate and unprofessional conduct on the part of the applicant’s solicitor. Given the fact that the charges were withdrawn and much more importantly that it had been conceded the transcript incorrectly recorded that which was put, it was absolutely out of order to endeavour to impugn the credit of the first respondent by putting those matters to him at all.
70. TR (63) the first respondent denied that in March 2005 he touched Nadine and it follows denied that she had asked him to stop. And a further answer “Nadine was my daughter up to 12 January 2006 and I never touched her”.
71. At TR (63) the first respondent denies that he had ever threatened to kill the applicant and repeats the denial that he had threatened to kill her if she went interstate, that appears at TR (64).
72. Then there emerges another absolutely preposterous and unprofessional contention suggesting that which was never suggested by the applicant or any other witness, that in accordance with Congolese custom the first respondent had taken the applicant into his care as his child (at 1 or 2 years of age) with the intention of making her one of his mistresses in due course. As he correctly responded such a suggestion was ridiculous, but much more than that it is entirely inappropriate and unprofessional if not misconduct.
73. Then obviously intending to refer to the applicant, it was put by the applicant’s solicitor to the first respondent that in August 2005 he entered the room where the applicant was sleeping and he tried to smother the applicant with the second respondent’s pillow, but then the applicant moved and he then as a consequence walked quickly away from the room. He denied ever trying to smother her anywhere and denied the threat of ever doing such a thing. Of course it follows as a matter of unavoidable logic that if the entry to her room occurred when she was asleep she would not be able to make any observation unless she woke up, a detail which is conveniently overlooked, and without regaining consciousness clearly being totally unable to make the alleged observation. It is such an outrageous statement if can properly be called an observation at all. Furthermore this matter of extreme importance and seriousness does not grace itself with any allegation as to what “trying to smother the applicant entailed”, but of course if she was asleep no doubt she could not say.
74. The first respondent next denied that in September 2005 he had grabbed Nadine around the neck and tried to strangle her and quite correctly says that a black person having been scratched would not be left with a white scratch. Further that she (obviously in light of the denial) was not coughing blood, but although objectively it was impossible for him to properly comment on the stupid proposition that the applicant was too scared to seek medical help he pointed out that he couldn’t have stopped her from going to the hospital. It wasn’t within his power.
75. At TR (65) the applicant’s solicitor put to the first respondent “And you told her why is it that you make yourself available for all the men in Darwin to fuck you but you don’t make yourself available to me, or words to that effect?” (Never part of the applicant’s case) to which the first respondent denied ever using the word “fuck” or swearing at all and denied telling the second respondent about a conversation between the applicant and Troy Watson overheard by him allegedly on the telephone.
76. At TR (65) the first respondent denied that either he and/or the second respondent had told the applicant to pack her bags and leave (never part of the applicant’s case) and that philosophically he would never keep away or chase out of his house a child of his which he regarded the applicant as being. At TR (68) the first respondent denied that any one other than the applicant and he were destined to travel and denied some conspiracy to maintain silence existed within the family.
77. At TR (69) the stay in December 2005 in the hotel in Kampala is visited and he conceded that which was already the subject of earlier evidence, namely that from the 17th to the 20th December 2005 they shared room 205 in which he testified there were two separate beds and denied that allegation “And you forced Nadine to have sex with during those days, did you not?” Again there is no evidence by the applicant that there was ever an occasion during that time when forced sex was achieved although the allegation is made (but also denied) that there was an attempt to do so. This is a further example of entirely inappropriate conduct on the part of the applicant’s solicitor.
78. Notwithstanding his repeated evidence about single beds applicant’s Counsel suggested that he shared a double bed and forced himself upon her and this notwithstanding the answers which conventionally bind a legal practitioner. Notwithstanding that conventionally a cross-examiner is bound by the answers, such as the answer in the previous paragraph, the matter is exacerbated by a further assertion that there was apparently alleged to be a further and entirely separate occasion (not supported by any evidence by the applicant) at attempted rape and that on this second occasion it was only a scream by the applicant which prevented the first respondent raping the applicant which scream curtailed the advance “because it was heard in the street”. To support the contention that any scream was heard in the street would require such evidence let alone the illogicality of the applicant being able to perceive such is the reason for the cessation of the alleged attempt to forcefully have sex with her. This evidence is in any event rejected by the Court.
79. At TR (70) a perfectly sensible explanation was forthcoming from the first respondent, which need not have been given because the answers previously given were binding on Counsel. Quite convincingly it is pointed out that prior to the 17th to the 20th December 2005 the price indication on the relevant document paid for the rooms is indicative of the fact that they were separate rooms as opposed to the price for the single room on separate documentation.
80. There is then a suggestion by the applicant’s solicitor in TR(71) that at the Hotel Pacific in Arua the applicant shared a double room with him which he denied saying that at that particular location whenever the applicant was present with the rest of the assembly she had her own room. He denied emphatically that at the Pacific Hotel in Arua “the applicant was standing on the head side of the bed and you were crawling towards her”, that she “jumped from the head side to the leg side (whatever that is intended to convey) of that bed the leg broke and she cut her shin and still bears the scar of that incident”. To digress such scars were never displayed by the applicant to the Court. Such “evidence” is rejected.
81. The first respondent emphatically denied such events ever occurring and contended they were to tarnish him and destroy his reputation. At TR (74) and following there is a perfectly feasible explanation given as to the need for the execution of the statutory declarations referred to in this decision and the Court accepts the explanation.
82. At TR (78) the first respondent denied the possession of the applicant’s diary, her sim card, her drivers licence and all forms of personal identification contending, and the Court accepts this evidence, that the applicant gave him the travel documents and the ticket and that is all he had.
83. At TR (66) the first defendant denied (which has as already found as so by this Court) being involved in anything nefarious concerning the statutory declarations which have been referred to in the decision and contended that the execution before Magistrate Marcello of the relevant statutory declarations was absolutely above board and that there was a Court Interpreter available all of which is testified to in the affidavit by Magistrate Marcello previously referred to which as the Court has indicated already is unequivocally accepts.
84. At TR (84) the first defendant denied that the applicant had tried to persuade him to take him with her when he was intending to leave Uganda and denied that he had ever told her that unless she had sex with him she couldn’t come back to Australia. He also said understandably these allegations are very vexatious. The applicant’s solicitor eventually conceded that specific allegation had never been part of her client’s case, although there was some reference) which the Court certainly doesn’t accept as evidence of its occurrence) of such an allegation in paragraph 37 of the affidavit of Prendergast.
85. Having indicated that the cross examination had been completed at the end of the day proceedings of the 16th April 2007 the proceedings began on the 23rd April 2007 with a request to be allowed to “put a few more questions” which in keeping with the perception that expediency was more important than pedantry the Court permitted.
86. At TR (96) although the document the subject of the commentary was not submitted into evidence, the oral evidence was, and it was unchallenged, that prior to departing from Australia the information given to Centrelink that the applicant was leaving Australia was the genesis of the document concerned, which was a letter from Centrelink 31 January 2006. Again destructive of the applicant’s credit.
87. At TR (99) the first respondent gave evidence that he attempted to hand over to one Thornton at the Darwin Airport the relevant air ticket or tickets and Titre de Voyage at TR (107) in early 2006. He said that at the time he left the applicant at her instance in Africa her biological mother Victorine was in a very good financial position.
88. Although it is a restatement of what was set out in the opening by the applicant’s solicitor the Court will detail sequentially the allegations which were alleged to have sufficed for the purposes of a domestic violence order and indeed they will be visited one by one. The first reality is of course that the so called abandonment in Africa has been disposed of and is a dead issue.
89. In those circumstances the first relevant allegation concerns the years between 2000 and 2003 when the family were located in Kenya. There may be a constitutional or jurisdictional issue, but for the purposes of deciding this matter the Court assumes, those issues if they arise, do not preclude the Court from entertaining the allegation which is:-
That the first respondent began making sexual advances to the applicant comprising of touching her body including her breasts and would attempt to take her clothes off. She says further that she did not like these advances and requested that they cease and would try to push the first respondent away, but he would ignore that protest or stop this behaviour it is alleged would occur whenever the second respondent was not at home which was a number of times each week.
90. It follows that to discharge the burden of proof on a balance of probabilities there must be some degree of specificity. The Court does not know on what date, at what place or indeed in what particular discreet circumstances the alleged events occurred or on what on each occasion they discretely comprise. In the event the first respondent emphatically denies such incidents and there is nothing which persuades the Court that his denial does not suffice for the purposes of completely rebutting the allegation. Further it is not necessary to go that far. It must follow and it is this Court’s finding that the relevant standard of proof has not been attained and that the allegations are so vague and general in nature that the so called evidence does not even to begin to attract even the possibility that such non-specific events occurred.
91. The second basis to attract an order is alleged to comprise occasions when the first respondent behaved in a physically violent manner towards the applicant. Again there is no specificity as to date or place or manner or extent of the alleged violent behaviour. For that reason alone as is the case with the first ground above those allegations must fail. There is by way of exception one specific occasion which at least enables the Court to identify the allegation, namely that on a single occasion in Kenya the first respondent punched the applicant in the face which caused her nose to bleed and chipped her tooth. That is again emphatically denied by the first respondent. His denial is sufficient to thwart the applicant establishing the necessary degree of proof. Even if the evidence did nothing more than attract an exercise of having to decide on “oath upon oath”, there is nothing in this Court’s finding to conclude that the version of the Applicant should be preferred to the denial of the first respondent.
92. There is then a further allegation that the first respondent stopped harassing viz, “harassing me (whether this is supposed to be sexual or other harassment it is not clear) for a short time before he started again”. Again the allegation is so vague and devoid of specificity that it clearly must fail for the same reasons advanced to the allegations set out in the preceding paragraphs.
93. It is then submitted that based upon paragraph 7 of an unidentified affidavit, but by dint of the Court’s own researches it takes it to be the affidavit of the 8 March 2006, that in or around February 2004 the applicant contacted Helpline “to talk about what was happening” Well, the Court poses the rhetorical question. What does that mean? What is the allegation and even if the allegation was capable of construction or comprehension what evidence is there to establish that anything at all occurred. In so far as that is said to be a ground upon which to pursue an order under the Domestic Violence Act, it is entirely specious.
94. In so far as there are allegations about anger concerning communications where male friends are concerned the Court is entirely disinterested. However it is then alleged that the first respondent stated to the applicant “nobody was going to sleep with me and that he was going to be the first person who did so”. There are some further allegations which are irrelevant for the purposes of this application. Undoubtedly if the statement was proved to have been made it would amount to behaviour which is undoubtedly provocative and offensive, but there are two other limbs to be satisfied. Firstly that behaviour must be such as to be likely to lead to a breach of the peace and of course there is a further issue which the Court will ultimately return to en globo that has to be satisfied, namely “And the defendant unless restrained is likely to repeat such behaviour”.
95. The Court finds that the applicant at the very least failed to attain the necessary standard of proof where again it is a situation of oath upon oath and there is no reason to prefer the applicant’s version to that of the first respondent. The first respondent has established to the satisfaction of this Court a conviction as to Christian beliefs and as to beliefs of chastity which are probably outmoded in today’s society, but such that would lead to a most unlikely state of affairs that he made such a statement. It follows those allegations fail to establish that there is such conduct on a balance of probabilities to the “Briginshaw” standard entitling the defendant to an order even as satisfaction of the first limb of her obligation.
96. The applicant’s solicitor then refers again without adopting the required degree of professional specificity to location of such allegations which are in fact contained in the applicants affidavit of the 8 March in paragraph 11, namely the alleged touching up and the threat to kill but the Court will deal with it on the basis that it is so recited as above.
97. The allegation is “In or about March 2005 there was one occasion when Lucien was touching me up and I asked him to stop. (there is no indication to where the touching was occurring) I became so angry at him because of what he was doing to me that I shouted at him and told him that if he did it again I was going to report him to the Police. Lucien became very angry. He threatened me and said that if I went to the Police he would kill me. It was at this time that I stated (sic) to become very afraid of Lucien”. Although this is going to become repetitious the Court does not accept her evidence, she therefore fails. The Court accepts the evidence of the first respondent which is a denial that anything of that nature ever occurred.
98. The applicant’s solicitor failed in her submissions to address the succeeding allegation which compels the Court to do that which was incumbent upon her. In paragraph 12 of the last mentioned affidavit her allegations relate to numerous threats to kill, but for the Court’s purposes in this exercise they will be treated as one alleged ground. They were to the effect that the first respondent had “threatened to kill me or to have someone kill me on numerous occasions”. Obviously these allegations relate to further threats to kill in addition to those set out in the preceding paragraph. Again such allegations being general and unspecific in nature intrinsically cannot suffice for the purposes of justification for an order and they do not. The applicant then continues “he even stated that if I was to move interstate that he would find someone to kill me”. In so far as that allegation may suffice for the purposes of entitling an applicant to an order if such were established, they are not established. The Court does not believe the applicant. The Court believes the first respondent, when he says he made no such statement and would never have made such statement.
99. The next issue, again not addressed by counsel for the applicant in her submissions, is that in August 2005 there was an occasion when she was asleep at night and the first respondent approached her with a pillow “as if to smother me”. It is difficult to understand how the approach was observed by a person who was asleep and it follows surely irrefutably that “as if to smother me” is quite different from “he tried to smother me”. Then having the unbelievable power to enter the mind of the first respondent, the applicant deposes to the thoughts that he had, which thoughts thus divined caused her to move and to wake up, thereby becoming conscious at that point in time and being able to observe from that point in time what logic dictates that she could not observe prior to waking. The applicant then says Lucien quickly left the room. In so far as the specious collation of statements is said to have amounted to an attempt to smother her it is simply rejected out of hand and the applicant fails. On that basis upon which she seeks an order she fails to achieve the necessary standard of proof adding further that it is emphatically denied and the denial is accepted.
100. Then the applicant’s solicitor resumed her submissions by addressing paragraph 14 of the affidavit referred to which relates to two separate occasions when both Lucien and Georgette have “grabbed me around the neck as if to strangle me”. These two will be treated as one. On any construction of the English language what that amounts to is an assertion that on two separate occasions and in tandem, the first respondent and second respondent conjointly grabbed her around the neck as if to strangle her. That is not established by any evidence, not even from the mouth of the applicant. This ground is found not to have been established.
101. Then the applicant alleges in or about the middle of September 2005 Lucien “grabbed me around the neck very tightly after an argument. I could not talk properly and I was coughing and I had blood in my mouth. I was too afraid to seek medical help or other help”. The first thing about this allegation is to be noted that it was expanded in evidence and otherwise to “coughing up blood for a week”. This smacks of recent invention. The Court simply doesn’t accept the applicant’s evidence particularly in the face of a total denial by the first and second respondents as to the occurrence of any such event. Further, as indeed also was the evidence of the first respondent, it is absolute nonsense to suggest that the applicant was precluded from seeking medical help or other help. She certainly had no difficulty in engaging the very receptive attention of Fredericka Gaskell about anything and everything she chose to raise with her. Her claims are rejected.
102. There was some attempted “fancy foot work” by the applicant’s solicitor to try and assert that the allegations of conjoint in tandem strangling exercises and the allegations in paragraph 15 of the said affidavit were coincidental. That is rejected. It is evidence which is to be construed literally not like Humpty Dumpty’s wish for the words to mean what he intended them to mean nothing more and nothing less. (Through the Looking Glass)
103. The next allegation is that in the middle of October (2005) the second respondent assaulted the applicant “by grabbing me around the neck after an argument about an Australian boy, Troy Watson….” This is the incident which is supposed to have left the white mark / scratch / bruise which is the subject of some evidence by Francis Saaka and his daughter Samira Seideu. Suffice it to say that the confused and contradictory nature of the so called corroboration is such to make their observations incredible if not ludicrous and indeed despite the allegation that the first respondent didn’t possess any medical knowledge the white mark is refuted by simple common sense. If it was a scratch that was observed by them it could not have been white in colour, the applicant is after all unquestionably a black person. The observations of the first respondent in relation to the physiology of a scratch to a black person is irrefutable. In the event because of the contradictions in the evidence of those witnesses, supported of course or enhanced by the denial of the first and second respondents, that incident is also found to not have been proved.
104. The applicant’s solicitor then refers to paragraph 17 of the said affidavit which is the allegation that after two days in separate rooms the subsequent change occasioned, according to the first respondent by financial difficulties entailed the applicant having to share a room with a double bed. That sharing of a bed is refuted by the first respondent. His explanation and the documents he tendered in support of his explanation are accepted. The Court finds that the change was dictated by financial circumstances the accommodation entailed the provision of two separate beds in that room and no bed was shared.
105. The next allegation is “Lucien tried to make me sleep with him however I would not do so”. What the Court asks, is this supposed to be an allegation about. If it is a euphemistic statement that the first respondent suggested that they have sexual intercourse, it is unaccustomedly precious and as usual lacking in specificity. Further more the concluding sentence would and must engender a conviction that the allegation entailed attempts to persuade her to indulge let us presume in sexual intercourse on more than one occasion. It is denied by the first respondent and the denial is accepted.
106. “On one occasion we had a struggle and I cut my leg on the side of the bed”. That then according to the applicant’s counsel is to be amplified by the allegations in paragraph 28 of the affidavit of the 6 April 2006 and in that affidavit the allegation entails what has already been referred to by the Court but is repeated in the event. “In Kampala (remember the contrary allegations it was Arua) when he tried with all his strength (on what ever occasion or number of occasions this was supposed to be) I was also resisting with all my strength, and the bed broke because I was standing up on the head side of the bed and Lucian (sic) started crawling towards me so I jumped to the foot of the bed and causing one of the wooden legs on that side to break and I fell because the bed collapsed on that side. Lucian (sic) jumped towards me and the bed cut me. My shin was bleeding so Lucian left me alone. I still bear those scars.” Well again the Court remarks those scars were strangely never exhibited. This contradicted and denied event the Court finds never happened.
107. As has already been recounted the next allegation in paragraph 28 of the said affidavit goes further and asserts “he did force me to have sex with him, but he couldn’t while we were in Kampala in 2005 and same in Arua” what is the Court supposed to make of that. Where is it that he “did force me to have sex with him” it is absolute manifest, confusing, unsubstantiated nonsense.
108. Then bear in mind also TR (40) the oral evidence of the applicant is apparently that the incident which is recounted above actually occurred at Arua and not at Kampala at all. Further that it occurred on Christmas day at 12pm. Whether that is supposed to be 12 noon or 12 midnight one is simply unable to say. In the event no matter at what location it is alleged such an event occurred in the Court’s finding, no allegation of that kind is proven and if that is a ground in the applicant’s case for a domestic violence order the establishment of those grounds fail, because intrinsically they are mutually contradictory, confusing and smack of recent invention, but in any event and more importantly were emphatically denied by the first respondent and such denial is accepted.
109. It follows from the Court’s findings above that the Court finds the applicant has comprehensively failed to establish to the required standard or indeed at all that any of the alleged incidents occurred. It therefore becomes completely unnecessary to visit the second and or third limbs of the relevant sections of the Domestic Violence Act which principally categorise or deal with the likelihood of the repetition of the different forms of violence occurring in the future. Since it does not matter what section or subsection is concerned the applicant has in the finding of the Court failed. It strictly speaking becomes unnecessary to consider whether in relation to anyone of the three future or other contingencies provided for in the Domestic Violence Act the defendant has ever adduced such evidence as would enable the Court to say in any event that there was likely to be a repetition, but for the purposes of closure the Court finds there is no evidence which would establish the likelihood of such occurrence in the future. The Court should be satisfied as to the required burden of proof on the balance of probability to the “Briginshaw” Standard in general terms that unless restrained the first respondent and or second respondent is likely again to repeat such behaviour as is alleged. The applicant simply fails dismally to achieve anything near the required standard. The contention that the Court should find the likelihood of repetition not withstanding no contact or communication at all due to the proposition that the Court could be satisfied as to the likelihood would have been fulfilled but for the continuation of these proceedings is without merit.
110. This decision and indeed the entire ventilation of the allegations has been made extremely difficult because of the totally unsatisfactory level of professional competence of the solicitor for the applicant who prosecuted these matters.
111. It didn’t matter how many times the Court directed the applicant’s solicitor to stay away from the proposition that violence towards some other party whether it was Israel or anyone else was in any way relevant or probative of any issue in respect of the matter which was the subject of this decision. The transcript will show that constant return of the applicant’s solicitor to this topic is such as to excite the quotation from Kipling’s work “The Gods of the Copybook Headings”:
“As it will be in the future, it was at the birth of Man –
There are only four things certain since Social Progress began:-
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool’s bandaged finger goes wabbling back to the Fire.”
There was one further certainty that Kipling did not contemplate namely, no matter what form of direction or admonition was given by this Court by way of prohibition to the applicant’s solicitor in respect to a topic or aspect of evidence, the certainty was that it would be ignored and indeed was.
112. The attacks on the integrity veracity or credibility of the first and second respondent based upon the submissions of the applicant’s solicitor are rejected out of hand. There was extensive criticism on grounds which this Court finds specious or at least without validity said to be sufficient to base a finding that each of the first and second respondent was a witness lacking in truth. That submission and the “reasons” advanced to support the submission are rejected.
113. For sake of completeness the thematic submissions of Counsel for the respondents is set out below:
“A. Corroboration
1. The evidence of DIMA’s Heather Predergast is that she was directed by more senior DIMA officials to NOT seek corroboration in respect of the Applicant’s claim that she was ‘dumped in Africa’ by the Second Respondent. It should be remembered that in October 2005 the Commonwealth Ombudsman’s report into the circumstances surrounding the deportation of Vivian Solon (“Comrie Report”) was released. Mr Neil Comrie was scathing in his criticism of DIMIA and its “catastrophic” management of the Solon case
The management by DIMIA of the Applicant’s case in early 2006 again demonstrates a myopic attitude by the Department in circumstances where its officials in Kampala were in a perfect position to quickly and easily seek to corroborate the Applicant’s story – by requesting a meeting with her mother.2. The applicant has similarly made absolutely no attempt to obtain corroborative evidence from Africa. The Respondents maintain that such corroborative evidence does not exist – because the Applicant’s biological mother in no way supported her daughter’s decision to return to Australia, and never travelled with the Applicant from the Congo to meet DIMA officials in Kampala.
3. Despite their meagre financial resources, the Respondents have for this proceeding obtained independent corroboration from Africa which supports their version of events. Ugandan magistrate Mr Aloni has, on oath, attested to the “relaxed” demeanour of the parties when he met them on 12 January 2006, and the use of an accredited court interpreter during his conference with them.
B. Credit
1. The Applicant’s upbringing in Africa undoubtedly took place in more turbulent and unsafe circumstances than applies to the upbringing of most children in Australia. Nadine Monganga was by circumstances forced in Africa to grow up quickly.
2. The Respondents maintain that the Applicant is now a scheming young woman, fully capable of concocting the story which duped DIMA into assisting her return to Australia from Africa. She knew that the truth would put her humanitarian visa under threat, to say nothing of her personal safety if she was forced to remain in the turbulent DRC.
3. The following questions pertain directly to the Applicant’s credit in this proceeding:
(a) If it is not the truth, why did the Applicant tell both Ms Muhudin (on 13/12/06) and Ms Gaskell (in Jan ’06) that she flew out of Darwin already knowing she was going to Africa to meet her biological mother?
(b) If the Applicant believed that the Second Respondent was determined to kill or rape her, why did she travel alone with him to a continent where he could more easily harm her and then ‘cover his tracks’?
(c) If the Second Respondent’s intent was to kill the Applicant in Africa, why didn’t he (for example) dispose of her in Uganda and simply report that she had run away?
(d) If the Second Respondent had tried to rape the Applicant in Kampala and Arua, and was forcing her to remain in Africa – why does she appear so relaxed in holiday photos taken at the time?
(e) If the Respondents had at various times assaulted and tried to kill the Applicant in Darwin, why did she never make a complaint to Police? By late 2005 the parties had already lived in Darwin for more than two years; the Applicant was not a ‘new arrival’.
C. ‘Blood is thicker than water’
1. The Respondents and the Applicant both contend that their relationship with one another since arriving in Australia has at time been quite difficult. Given the Applicant’s age and the parties’ cultural background, this is not surprising.
2. Both Respondents have given evidence of the Applicant’s burning desire during 2005 to meet her biological mother for the first time. This is perfectly understandable.
3. Apart from the evidence of the Applicant, there is nothing to suggest that the Applicant’s time with her mother in Africa, prior to the Second Respondent’s return to Australia, was anything less than very happy for both women. The Respondent’s uncontradicted evidence is that the Applicant’s mother is a woman of some means, who made an effort to impress her daughter in Africa.
4. It is not implausible that in these circumstances the Applicant was persuaded by her mother to remain in the DRC. Furthermore, the Applicant’s realization some weeks later that she had made a mistake and was at physical risk in the DRC is no less plausible. Her decision in late January 2006, to try to get financial support from DIMA for her return to Australia is understandable.
D. Abuse of Process
1. The Respondents maintain that this proceeding is an abuse of process, because it has been commenced by the Applicant for only the following ulterior purposes, not being within the scope of the legal process:
(a) To support her tale of abandonment in Africa;
(b) To support her claim of good character for Australian citizenship;
(c) To avert the risk of her humanitarian visa being cancelled on the ground that she freely chose to return to live in the country from which she sought refuge;
(d) To impugn the character of the Respondents and thus jeopardize their eligibility for Australian citizenship; and
(e) To avoid parental supervision.
(See Hanrahan v Ainsworth (1990) 22 NSWLR 73, per Kirby at 96)
2. By giving the Applicant her own money, in response the Applicant’s tale of abandonment in Africa, DIMA’s Heather Prendergast (perhaps unwittingly) became a stakeholder in the Nadine Monganga case. It is arguable that this payment created an apparent conflict of interest, in breach of the APS Code of Conduct.
114. On all of the evidence before me the Court finds that the applicant has failed to establish that any one of the alleged incidents which could have amounted to domestic violence if proven, was proven to the requisite standard namely a balance of probabilities in accordance with the additional requirement for a quasi criminal matter of this nature established and known as the “Briginshaw” test. In reaching that conclusion the Court has accepted the submissions that were made by Mr Hunter thankfully briefly, pertinent, accurately and to the point. Both applications are dismissed.
115. I will hear from the parties in relation to the issues of costs.
116. I direct that this decision be referred to DIMA and to The Law Society.
Dated: 21 June 2007
DAVID LOADMAN
STIPENDIARY MAGISTRATE
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