Sahrawi & Hadrami
[2018] FamCAFC 170
•4 September 2018
FAMILY COURT OF AUSTRALIA
| SAHRAWI & HADRAMI | [2018] FamCAFC 170 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the father behaved in a psychologically coercive manner to secure sex from the mother based upon words said in a recorded telephone conversation between the mother and the father – Where the father was not afforded procedural fairness to comment upon the primary judge’s interpretation of those words – Where another interpretation was available – Where this error led the primary judge to conclude that the presumption of equal shared parental responsibility did not apply and impacted upon s 60CC(2) and (3) considerations – Where the primary judge did not err in failing to make credibility findings - Where the primary judge erred in failing to make findings about whether the mother had fabricated allegations –Where the primary judge misstated the breadth of the test in M v M (1988) 166 CLR 69 – Where, given the error the primary judge made in finding that no determination could be made as to whether the mother had fabricated allegations, there is error in the primary judge’s consideration of the family consultant’s evidence and the Independent Children's Lawyer’s submissions which were based upon the proposition that such a finding would be made – Where the father made an application pursuant to s 67ZC of the Act for the return of the children to Country E without the court making final parenting orders – Where the primary judge did not err in not making a summary order for the return of the children without making parenting orders – Where the appeal is allowed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAC, 67ZC Evidence Act 1995 (Cth) ss 126, 140(2) |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Sheldon & Weir (No.3) [2010] FamCA 1138 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588; [1999] HCA 3 |
| APPELLANT: | Mr Sahrawi |
| RESPONDENT: | Ms Hadrami |
| FILE NUMBER: | CAC | 230 | of | 2017 |
| APPEAL NUMBER: | EA | 28 | of | 2018 |
| DATE DELIVERED: | 4 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Watts JJ |
| HEARING DATE: | 1 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 January 2018 |
| LOWER COURT MNC: | [2018] FamCA 10 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hassall with Dr Behrens |
| SOLICITOR FOR THE APPELLANT: | Infront Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Neville |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid ACT |
Orders
The appeal is allowed.
The orders made by Gill J on 17 January 2018 are set aside.
The matter is remitted to the Family Court of Australia for rehearing by a judge other than Gill J.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.
Pending further order:
(a)The father and mother have equal shared parental responsibility for Child B (“B”) born … 2004, Child C (“C”) born … 2008 and Child D (“D”) born … 2016, (collectively “the children”).
(b) The children shall live with the mother.
(c)In the event that the father and mother are living in the same country, the children shall spend time with the father as follows:
(i)During school term time:
A.With the children each Tuesday from 4.00 pm until 6.00 pm;
B.With B and C each alternate weekend commencing the first weekend of each term, from after school on Friday until the commencement of school the following week;
C.With B and C on the other weekend on Saturday from 10.00 am until 6.00 pm;
D.With D, each Saturday 10.00 am until 6.00 pm;
(ii)During school holiday time for the first seven days of each school holiday period, commencing after school on the last day of term and ending at 3.00 pm on the 7th full day of the holidays;
(d)For the purposes of this order changeover shall occur at C’s school when he is in attendance at school and otherwise at a location as agreed or, failing agreement, within the Y Centre.
(e)Regardless of where the father and mother are living, the father may spend time with the children by electronic communication with the children each Monday, Thursday and Sunday (unless they are otherwise with him) at 5pm in the time zone of where the children are living.
(f)The mother is to facilitate the electronic communication with the children by the father by:
(i)Providing a means for audio visual electronic communication for the children to use;
(ii)Providing the father with current details to enable the use of the electronic communication;
(iii)Encouraging the children to communicate with the father on each occasion; and
(iv)Minimising sources of distraction from the children during the communication.
(g)The parties are at liberty to alter the arrangements for the time to be spent with the children by agreement in writing.
(h)Each party shall keep the other informed about any mobile telephone number on which they may be contacted.
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 Sahrawi & Hadrami 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 28 of 2018
File Number: CAC 230 of 2017
| Mr Sahrawi |
Appellant
And
| Ms Hadrami |
Respondent
REASONS FOR JUDGMENT
RYAN & ALDRIDGE JJ
The relevant background facts are set out in the judgment of Watts J and do not need repeating. We have had the advantage of reading the draft reasons for judgment of Watts J, and adopt his reasoning in respect of Ground 6. We come to the same conclusion, but differ in reasoning, in respect of the remaining grounds.
Grounds of Appeal
The father prosecuted eight grounds of appeal against the orders of Gill J. Grounds 4 and 7(c), (d) and (e) were not pressed as separate grounds of appeal. Grounds 9(b) – (d) were abandoned.
Ground 2: Family Violence
Ground 2 is as follows:
The learned trial judge’s finding that the father had engaged in family violence, by behaving in a psychologically coercive manner to secure sex from the mother, was neither supported by adequate evidence before the Court, nor a conclusion which was urged upon His Honour by any party.
Thus the father contends that the primary judge erred by:
·Making a finding that was not supported by the evidence; and
·Failing to accord the father procedural fairness by making a finding for which neither party contended.
By way of context, on 17 February 2017, the parties had three telephone conversations, which the father recorded. The transcripts of the recordings (“the February 2017 transcripts”), which were tendered in the proceedings, formed the basis of the primary judge’s findings of family violence. In discussing the transcripts, the primary judge said:
64.The [father] then asked whether he had ever forced the [mother] to have sex. Her response (p169) was “you always force me” by psychological means. Her account was that there was no beating or forcing the [mother] onto the bed. The psychological force was that if the [mother] did not make him “feel relaxed and happy in sex” “tomorrow the house of my family will be destroyed” and her freedom would be restricted with “no going out or in.” The [mother] said “(a)ll of this is rape, by the way, because it was not up to me.” The [father]’s response was “(a)lright, [the mother]. Since this matter happened before we came here, what relevance does this discussion have?” She responds that it was because she had been asked for examples of mistreatment while they were in [Country E].
65.Careful consideration must be given to the [father]’s response. The [mother]’s assertion is of coercive or controlling behaviour regarding sex. The [father]’s response appears to accept that this was a feature of their relationship in [Country E]. His response, on its terms, accepts that it occurred, but questions the current relevance of it.
…
82. One aspect does have cogency. This is the issue of forcing the [mother] to have sex. While it cannot be sustained that the [father] physically forced the [mother] to have sex with him, he appeared to accept that he had behaved in a psychologically coercive manner to secure sex from the [mother]. It is conduct that tends toward the vitiation of consent and which trespasses upon an intimate aspect of a person’s life. It has significance not simply because it is connected to sexual conduct, but because of its coercive, controlling nature which, whether it is connected to sexual acts or not, constitutes family violence under the Family Law Act.
(Emphasis added)
Thus the primary judge’s finding at [82] was based on the exchange between the father and mother recorded at [64] and the interpretation his Honour gave to that exchange at [65].
Counsel for the father argued that the father’s answer indicated in bold in the quote above is “inherently equivocal”, and that it is capable of interpretations other than the one the primary judge ascribed to it. In other words, while the primary judge interpreted that statement to be an admission by the father that he had psychologically coerced the mother to have sex, counsel for the father argued that it could just as readily have been interpreted as the father interrogating the mother about the allegations she had made. We agree.
Further, and more importantly, the mother did not give any evidence to the effect that she had been psychologically coerced into having sex with the father. It was not suggested to the father that he had done so and he was not questioned on that aspect of the February 2017 transcripts; nor did the mother raise the issue in the course of her submissions. The primary judge did not foreshadow such a finding or seek submissions from the father as to whether it should be made.
Accordingly, we accept the father’s submission that he was not afforded procedural fairness in relation to this finding (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [62]-[72]).
It is fundamental that before a witness’ conduct is impugned, the witness should be given the opportunity to deal with the imputation intended to be made against him or her (MWJ v The Queen (2005) 222 ALR 436 at [39]). This was not done, the effect of which is the finding that the father behaved in a psychologically coercive manner to secure sex from the mother cannot be sustained.
Counsel for the mother argued that this erroneous finding was not material to the outcome of the proceedings. The proposition should not be accepted.
The primary judge clearly regarded the finding as significant. He said:
201.Issues of family violence loomed large in this trial. As outlined above, I do not accept that the [father] has been physically violent to the [mother]. I do however accept that he has engaged in coercive and controlling conduct of the [mother], specifically with regard to their sexual relations. Coercion and control, by threats and consequences to her freedom, to cause the [mother] to ensure that the [father] is sexually happy is a serious matter.
202.The evidence set out no specific impact upon the children. Nor did it show that the children were directly exposed to the conduct. However, such conduct has the potential to be deeply corrosive within a family, the [mother] being subjected to control by means of fear. In such circumstances, where the [mother] has had such a primary role in the care of the children, even where a specific, direct impact cannot be identified, it cannot be assumed that there is no indirect impact. However, in the absence of evidence on that point, the impact is both unable to be quantified or assessed as to its degree of significance.
Those considerations led to the following conclusions as to parental responsibility:
209.Given the findings that the [father] engaged in family violence by acting in a coercive and controlling manner toward the [mother], s 61DA(2) provides that the presumption that it is in the best interests of a child to make an order for equal shared parental responsibility does not apply. The allocation of parental responsibility falls to be determined on an assessment of what is in the best interests of these children without a presumptive starting point.
210.The particular considerations that are dominant in determining this aspect are the nature of the relationship between the parents and the likelihood that, in the medium term future, and perhaps in the long term future, the children will live with a parent in one country, with the other parent in another country.
211.The relationship between the [father] and [mother] is exemplified by the allegations made in this case concerning family violence. They are a collection of proven family violence against the [father], accompanied by allegations by the [mother] that are without merit. These circumstances are not conducive to the parties being able to comply with the obligations in relation to consultation and joint decision making imposed by s 65DAC in the event of an order for equal shared parental responsibility.
212.Secondly, the parent with whom the children live will have almost the sole care of the children, given the geographical circumstances of the parties. Decisions, including long term decisions, will need to be made in the context of the particular circumstances of where that party and the children live.
213.Those two matters, particularly when seen cumulatively, mean that an order for equal shared parental responsibility is not in the interests of the children.
Thus, the finding of family violence not only had the effect that the presumption in favour of equal shared parental responsibility did not apply it also substantially influenced his Honour’s decision to make an order for sole parental responsibility in favour of the mother.
It follows that the error significantly informed the final orders and was clearly material; indeed, in our view it was of signal importance in the disposition of the case.
This ground has been established.
Grounds 3, 5 and 8: Approach to family violence and fact finding
These three grounds challenge the primary judge’s approach to the issues of family violence raised by the mother including those made in her application for a protection visa. They assert that the primary judge misstated and misapplied the law concerning whether or not the mother fabricated various allegations (Ground 3) and that he also erred in failing to address the submissions made by the Independent Children’s Lawyer (“the ICL”) that the allegations had been fabricated (Ground 5). The father also contended that the primary judge’s “finding that he did not accept that the father had been physically violent to the mother was inconsistent with his Honour’s refusal to find that the mother had fabricated allegations of physical violence by the father” (Ground 8).
The father submitted that the primary judge was faced with an important issue or issues which required resolution – namely, whether there was family violence or whether the allegations had been fabricated – and had a large volume of evidence available to him that bore upon those issues, yet did not resolve them. The father submitted that the primary judge should have resolved them or explained why he was not doing so and why the material before him did not permit that to be done.
At the outset of his reasons for judgment, the primary judge set out a number of issues which the parties had asked him to resolve as part of his analysis of what orders should be made in the best interests of the children. These included:
16.…
(c)Whether the [father] had committed acts of physical, sexual or emotional abuse upon the mother both in [Country E] and in Australia.
…
(e)uncertainty with the mother’s proposal to remain in Australia and the question of the ability of the father to remain in Australia….whether the mother is likely to be able to return to [Country E] and if so, whether she would be free from harm there….whether the mother has suffered sexual harassment by a neighbour in [Country E] or problems with the law enforcement authorities or government of [Country E].
…
(h)credibility issues arising from either the mother’s fabrication of violence by the father; or the father’s false denial of violence.
The issues of violence and fabrication were therefore front and centre as matters requiring resolution. The father denied all the allegations made against him and called evidence from himself, his father and a number of others to rebut them.
The primary judge recorded the following allegations made against the father:
44.Significant family violence is alleged to have occurred during the relationship, ranging from the [father] belittling and verbally demeaning the [mother], through to physical and sexual violence.
45.The [mother] alleges that the [father] has hit her, leaving bruises, forced her to have sex with him if she refused his requests, forced her to participate in group sex and filmed sexual acts involving the [mother], placing the recordings on the internet.
His Honour then proceeded to note the difficulties that he saw with the mother’s evidence.
The mother and the children arrived in Australia in July 2016 so that the mother could study at a tertiary institution. She had a student visa which expired on 19 October 2016. On 12 October 2016 she filed an application for a protection visa (at [124]). In essence, the mother asserted that she needed protection because Country E was oppressive to women, she had been sexually harassed by a neighbour, had been involved in an unpleasant confrontation with that country’s police and had criticised its rulers.
The mother’s evidence as to these issues was also challenged and we shall return to those matters later. The importance of the protection visa application for present purposes is that it did not mention any family violence perpetrated by the father. The primary judge regarded this as undermining the credibility of the mother’s allegations now raised against him.
The first allegations of family violence were in fact made in early February 2017 in applications to the Federal Circuit Court and the ACT Magistrates Court. Among the allegations made by the mother were complaints of physical violence including non-consensual sex. She made no mention of being forced to participate in group sex or video recordings for the internet. The primary judge regarded the later introduction of those allegations as significantly eroding their cogency.
In relation to the allegations that the father had threatened to kill the mother, his Honour pointed to text messages sent to the father by the mother at significant times that contained assertions by the mother that she loved him, sexually explicit photos, loving comments and a sexually explicit conversation (at [51]-[55]).
The mother said that she made these comments and sent the photos out of fear of the father and that he had insisted she do so. When asked to produce evidence of these threats the mother said that she had lost the abusive texts sent by the father when her phone had been reformatted and, confusingly, that he was only abusive and threatening when he spoke to her.
The primary judge found that the explicit exchange “does not sit comfortably with the mother’s evidence that she had communicated a breakdown of the relationship” (at [55]).
The primary judge then referred to the conversation recorded in the February 2017 transcripts as follows:
59.The conversation covers the application for a domestic violence order, the timing for the [father] to leave the country, and the [mother]’s concern that he may go to a Department to undermine her prior to his departure. In those messages the [mother] says that she does not want to hurt the [father], but may be forced to obtain the domestic violence order so that it did not appear that she “agreed” with the [father]. She says the “matter is about getting the (permanent) residence…no other thing” rather than being about going “against” the [father].
60.The [mother] continues to say that, despite what she has reported about the [father], in the future to support his entry into the country she will assert that they have reconciled.
61.These comments give the impression that the claims against the [father] may have been made for the ulterior purpose of obtaining the protection visa.
62.At the conclusion of the conversation the [mother] says “(y)es, I lie. Yes, I lie. I have to protect myself. One would use any way to protect herself and her children.” In her affidavit evidence [58] the [mother] asserts that she said this out of frustration, in an attempt to have the [father] leave the country. The explanation given by the [mother] does not sit well with the place of the admission within the conversation.
This resonates with the mother’s evidence noted earlier by the primary judge that the texts sent to the father in late 2016 to early 2017 were a ruse so that he would think the relationship continued and so that he would continue to support her.
The primary judge then concluded:
80.It should be acknowledged that the evidence in respect of family violence in this case is contradictory. There are matters that significantly undermine the [mother]’s claims against the [father]. The testimony of his relatives, his denials, and the changing landscape of the allegations, and the [mother]’s acceptance to the [father] that she lies in order to protect herself and the children all act to undermine the [mother]’s accounts that the [father] assaulted the [mother], or forced her to participate in group sex, or be video recorded for the internet.
81.On a number of matters it is not possible to prefer one account over another, for example, in relation to the contest as to whether the [father] gave or withheld permission to work, or whether he has threatened to kill the [mother].
82.One aspect does have cogency. This is the issue of forcing the [mother] to have sex. While it cannot be sustained that the [father] physically forced the [mother] to have sex with him, he appeared to accept that he had behaved in a psychologically coercive manner to secure sex from the [mother]. It is conduct that tends toward the vitiation of consent and which trespasses upon an intimate aspect of a person’s life. It has significance not simply because it is connected to sexual conduct, but because of its coercive, controlling nature which, whether it is connected to sexual acts or not, constitutes family violence under the Family Law Act.
Thus, save for the finding about coercive behaviour which we have already found not to be soundly based, the primary judge made no findings as to the other allegations of family violence. His Honour did not deal with the ICL’s submissions that the allegations were fabricated. That aspect of the matter was but obliquely referred to in the following passage:
180.The Report Writer was questioned as to the significance of a finding being made that the assertions made by the mother, both against her neighbour and the [Country E] police and against the father, are fabrications. Initially her view was that if this was the case it was a major concern as to the mother’s character rather than as to her parenting capacity. However, the Report Writer accepted that it impacted significantly on their capacity to co-parent (although I interpolate that if the allegations are not fabricated it also calls into question the capacity for co-parenting), or could potentially raise mental health issues if it meant that the mother was not in touch with reality (although the Family Report writer indicated that she did not hold the expertise to make any such assessment but that further expert evidence may be required to deal with that issue). No evidence was led to establish a mental health issue.
The primary judge also said:
151.This issue is subsumed into the assessment of the evidence relating to whether the [father] has committed family violence upon the [mother]. Neither party, but particularly the [mother], proved reliable in relation to their accounts in relation to family violence.
At [201], his Honour noted, “[a]s outlined above, I do not accept that the [father] has been physically violent to the [mother]”. That finding does not deal with the allegations that did not involve physical violence (which was nearly all of them) or the submission that the allegations were fabricated. It is not clear to us why the primary judge did not accept the mother’s evidence as to physical violence but remained ambivalent about the acceptability of her other evidence about family violence.
In addition to the above inconsistencies the father pointed to inconsistencies in the mother’s evidence on other issues which also bore upon the reliability of her evidence as to violence and fabrication.
As we have recorded, the mother relied upon allegations of the sexual harassment of her by a neighbour in Country E in her application for a protection visa. There were a number of inconsistencies in the mother’s evidence, leading his Honour to conclude:
105.There is significant uncertainty as to whether the incident with the neighbour occurred.
…
108.As the evidence stands in these proceedings there is significant uncertainty about the claims concerning the neighbour. There is conflict in the accounts given by the [mother], the choice to pursue a student visa with its attendant delays, the conflict in the [father]’s behaviour in respect of the allegations, and the evidence from his father of there being no such resident of the apartments. The matter is left in a state of uncertainty, with it not being established that the incident occurred, but also not being established that it has not occurred.
The mother also relied on a confrontation with the Country E police. The mother’s first version was found to be inherently unlikely due to the dates provided by her which meant neither she nor the father were in Country E at the time. The mother then suggested she was confused as to the date and proffered another date. His Honour concluded:
118.The conflict between the evidence of the [father] and the [mother], the inconsistency in the [father]’s approach to the allegations, the problem with the [mother]’s initial account of the security agencies contacting the [father] (noting some caution attaches to this given the need for translation of documents for the [mother]), lead to uncertainty in relation to this matter. It is neither proven nor disproven.
119.As with the issue concerning the neighbour, there remains a risk to the [mother] as a product of the uncertainty of this matter.
The finding that the two asserted complaints were neither proven nor disproven can only mean that the mother’s evidence as to these complaints was not accepted.
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not therefore continue to have a role to play in the fact-finding process.
As we will shortly demonstrate, the question of whether there is an unacceptable risk to a child still requires that there be actual evidence which at least gives rise to the conclusion that behaviour may have occurred or may occur.
The father also relied upon the mother’s admission that she had forged three statutory declarations in support of an application for social welfare benefits. The primary judge did not refer to this at all.
We accept the father’s submission that the determination of the allegations of family violence was important and that of fabrication was critical.
One of the contests between the parties was whether the children should live in Country E, as the father proposed, or in Australia as the mother proposed. However, the evidence disclosed that in order to stay in Australia permanently the mother would need to be successful in her application for a protection visa. Such success would be unlikely if the allegations against the father or as to her difficulties in Country E were found to have been falsely made.
The ICL submitted there was at least a reasonable possibility that the mother would not obtain the visa and would have to return to Country E.
Thus, the resolution of this issue was relevant to determining whether it was in the best interests of the children to live in Australia, perhaps only for a short period, or Country E.
There is force therefore in the father’s submissions that this was an issue that required resolution and that there was a significant body of evidence available to the primary judge that bore upon the question.
The primary judge did, however, take the allegations into account and it is now necessary to consider his Honour’s use of the principles set out in M v M (1988) 166 CLR 69 (“M v M”). The father submitted that his Honour misused the “unacceptable risk” test set out therein as to whether the mother’s allegation made in the application for a protection visa and her allegations of family violence should be accepted or whether they had been fabricated.
After referring to the evidence called by the mother and by the father as to whether the mother had been assaulted and harassed by a neighbour in Country E, the primary judge said, at [105]: “There is significant uncertainty as to whether the incident with the neighbour occurred”.
His Honour then continued:
106.While often it will be the case that such a matter is then resolved by the failure of the party alleging the fact to establish the fact, the particular features of the jurisdiction of this Court to leave the matter in a state of uncertainty and to assign it significance as an uncertain fact. Such was recognised in the seminal High Court case of M v M (1988) 166 CLR 69. There the Court recognised that:
proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression… the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities
107.It should not be thought that the above approach is restricted to any one particular class of allegation or assertion, such as those pertaining to sexual abuse. The conclusion arrived at by the High Court, in identifying the particular characteristics of the jurisdiction being exercised by this Court, is of more general application to the facts and considerations underlying a conclusion of what is in the best interests of a child.
108.As the evidence stands in these proceedings there is significant uncertainty about the claims concerning the neighbour. There is conflict in the accounts given by the [mother], the choice to pursue a student visa with its attendant delays, the conflict in the [father]’s behaviour in respect of the allegations, and the evidence from his father of there being no such resident of the apartments. The matter is left in a state of uncertainty, with it not being established that the incident occurred, but also not being established that it has not occurred.
109.There remains a risk of harm to the [mother] if she returns to [Country E] born of the uncertainty as to whether these events occurred.
In our opinion, M v M is not a case directed to the Court’s approach to finding facts as his Honour seems to have regarded it. However, by reference to that case his Honour seems to have constructed a category of “fact” which is neither proven nor unproven but upon which the Court can act as if it has been proven – that is, that there is a risk that the non-accepted evidence might nonetheless be correct. Rather, M v M was concerned with the approach to be taken where the Court was not satisfied that, in that case, allegations of past sexual abuse had been established but that “on the evidence there is a risk of sexual abuse occurring if custody or access be granted”.
This emerges clearly when the passage relied on by the primary judge is seen in in the full context of the relevant reasons (M v M at 76):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”). There Dixon J said at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The resulting approach to such issues was highlighted in Stott & Holgar [2017] FamCAFC 152:
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37.As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
39.We find merit in the argument that this did not occur here, since it is difficult to discern from his Honour’s reasons what he considered to be the nature, magnitude and potential effect of the risks for the child (and the grandmother) of the father being permitted to spend unsupervised time with the child. The father’s proven history of violence, together with the grandmother’s case concerning the father’s family violence, required evaluation of these matters before it was possible to perform the balancing exercise involved.
(Original emphasis)
The point is that the identification of a risk and its nature or magnitude and the likelihood of occurrence are important considerations. The focus is on the best interests of the child and how any risk to that child may be managed. The primary judge undertook none of these considerations. Instead, his Honour focussed on whether there had been an assault, found that he could not be certain that there had been, but found there was a risk that it could have occurred. In doing so, the primary judge was impermissibly applying the approach dealing with assessing whether there is an unacceptable risk of harm to the child to a finding of fact as to whether an assault had occurred. This is made clear by the conclusion at [109] which refers to “a risk of harm to the [mother]” (not, we also note, to the child).
We return then to the asserted failure to resolve the issues of violence and fabrication. An essential aspect of the exercise of judicial power is the determination of issues in dispute. Albeit in the context of a discussion of the nature of its own original jurisdiction, in this regard the High Court in Fencott v Muller (1983) 152 CLR 570 at 608 said:
… it is necessary to attribute to “matter” in ss. 75 and 76 of the Constitution a connotation which does not deny to federal judicial power its primary character: that is, the power of a sovereign authority “to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property” (per Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead). The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.
(Emphasis added)
In the context of allegations similar to those made in this case the Full Court in Amador v Amador (2009) 43 Fam LR 268 said:
[94] A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95] The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
(Emphasis added)
We accept that the primary judge erred by not resolving the issue and by not explaining why the evidence relied upon by the ICL was not relevant or why it did not establish that the mother’s allegations were fabricated.
Thus we consider that these grounds have been established.
We turn finally to the father’s submission that the primary judge’s reluctance to determine these issues would have been overcome if he had made general credit findings or made “an integrated assessment of credibility”.
We immediately reject the proposition, to the extent it was made, that a trial judge is obliged, in any particular case, to make general credit findings. No authority was cited in support of that proposition. Such a notion is contrary to the well-established principle that a judge can accept some parts of a witness’s evidence and reject others. In Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (“Dublin”), Lord Blackburn said:
The jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any witness. They may believe that part of a witness’ evidence which makes for the party who calls him, and disbelieve that part of his evidence which makes against the party who calls him …
These comments were echoed by Sir Frederick Jordan in Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322:
… it would be for the jury who saw and heard the witnesses to decide whether they accepted their evidence. They were perfectly at liberty to reject the whole of their evidence, or to accept some and reject the rest, however intimately it might be associated with what they accepted, unless there is something to show that reasonable men could not take up such an attitude: Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172 at 185; Hammer v S Hoffnung & Co Ltd (1928) 28 SR (NSW) 280 at 282-283.
In S v M (1984) 36 SASR 316, a case between parents for the custody of their ex-nuptial child, Walters J made observations about the extent to which a trial judge is at liberty to accept part of the evidence given by a witness and to reject the rest. Walters J said at 319-320:
… it would not be right to say that in determining the weight and credibility to be given to the evidence of a witness, one should reject his or her entire testimony if parts of it are found to be untrustworthy, or even false and mendacious. Because part of his or her evidence is unreliable, it does not follow that other parts of it are unreliable and that the whole of his or her evidence should be disbelieved. So often, in a case of this kind, the interests or bias of one party and his supporting witnesses may exercise on their minds an influence of which they are unconscious and which leads them to give distorted, but yet not deliberately false, accounts of the matters to which they depose in evidence. It seems to me that in making his findings of fact, a trial judge is not bound to believe the whole of the evidence of any witness; he is at liberty to believe part of the witness’s evidence and to reject the rest … I think I am free to accept or to reject the whole of the testimony of the applicant or the respondent, as the case may be, or to accept some part of it and to reject the rest, however intimately it might be associated with what I have accepted.
See also Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at 45 – 47.
A danger with global or general credit findings is the risk of relying upon demeanour at the expense of objective facts is increased and it neglects the nuanced and common sense approach referred to in Dublin above. As Kirby J said in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588 at 617:
There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 LI L Rep 140 at 152 Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’.
That this is the preferred approach in family law proceedings was made clear in Adamson & Adamson (2014) FLC 93-622:
87.First, we question the nature of the credit findings and, more importantly, the need for many, if not all, of them to have been made in the first place.
88.This case involved, as his Honour found, competing co-parenting arrangements where it was effectively conceded by the father that M would continue to live with her mother. Equally crucial, the proposals for the time that M should have with her father were not significantly disparate.
89.In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
90.We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
Of course, in appropriate, but fortunately uncommon cases, a trial judge may find that, taken as a whole, a witness’s evidence is so unreliable that the court is unable to give any aspect of it weight unless that aspect was independently corroborated. That, however, is quite different to a judge in the position of the primary judge being obligated to make general credit findings.
Ground 6: The evidence of the family consultant
We agree with the reasons of Watts J in respect of this ground that the primary judge did not misinterpret the family consultant’s opinions and recommendations. However, as the basis on which he did so has been demonstrated to be unsound, this aspect of the matter will need to be reconsidered at the rehearing. It is therefore unnecessary to consider this ground further.
Ground 7: Weight given to issues and findings
Ground 7 is a collection of unrelated complaints, generally to the effect that the primary judge failed to consider or have regard to particular issues or findings. Essentially they are challenges to the weight to be given to those matters. Given that, at least in part, the weight that should be given to those matters will be affected by the findings as to family violence and fabrication which must be reconsidered at a rehearing, there is no benefit in considering these matters. This is because the weight to be afforded to them will be a matter for the judge conducting the rehearing.
We note that Ground 7(a) is to a different effect but has been covered by our discussion of Grounds 3, 5 and 8.
Ground 9: Errors of fact
This ground asserts that the primary judge made a number of errors of fact. As the matter is being remitted for rehearing, this ground, as with Ground 7, is otiose and it is neither necessary nor desirable for us to consider it further.
Ground 1: Determination of father’s s 67ZC application
It is convenient to set out this ground in full:
In connection with the learned trial judge’s determination that it was not appropriate for the Court to exercise its jurisdiction to order the summary return of the children to [Country E], the learned trial judge erred in finding that such return was incompatible with a determination of the children’s substantive welfare issues following a full hearing.
This ground challenges the primary judge’s refusal to consider a summary return of the children to Country E. Such an order could be made, pursuant to the welfare power expressed in s 67ZC of the Family Law Act 1975 (Cth) (“the Act”).
In Z.P. v P.S. (1994) 181 CLR 639 at 648 – 649 (“Z.P v P.S.”), Mason CJ, Toohey and McHugh JJ, with the concurrence of Deane and Gaudron JJ on this point, said:
Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.
…
That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
Two things flow from the passage. First, it is only in “some” cases that it is proper to make a summary order for return – clearly enough, only where it is in the best interests of the children to do so. Secondly, if the Court declines to make a summary order but proceeds to consider for itself the appropriate parenting orders to be made, the Court may still conclude that it is in the best interests of the children for them to be returned to the foreign jurisdiction for consideration of the appropriate parenting orders, but such a case would be exceptional.
In a passage to like effect, in Z.P v P.S. at 664 Brennan and Dawson JJ said:
… it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody. Where it is for the welfare of the child that an order for speedy return is made, the Family Court is not primarily concerned with the question whether it is a clearly inappropriate forum to determine an application for permanent custody. The Family Court is the only court that can appropriately make an order for speedy return and it has no jurisdiction to remit the question of permanent custody for determination by a court in another country. The Family Court must therefore make the order that is appropriate in the unique circumstances of the case at the time when the proceedings are before it.
In Kwon v Lee (2006) FLC 93-287 the Full Court said:
84.We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles. In so determining, we can readily understand the difficult task which confronted her Honour, and her conclusions as a result of the application of the principles set out in B v B (Re Jurisdiction) (supra).
(Emphasis added)
In his Response, the father sought an order for summary return. He did not seek an early discrete hearing to that effect but did seek an order for summary return at the final hearing. The application therefore, if it was to succeed, would have to be an exceptional case.
The primary judge refused to proceed on a summary basis, saying:
28.When seized of jurisdiction it is the obligation of the Family Court to exercise the jurisdiction unless it is determined that it is not in the interests of the children to continue to exercise the jurisdiction beyond making an order for the summary return of the children.
29.The reasons identified by the [father] are set out in his updated case outline filed 18 August 2017 and in oral submissions. The reasons were intermingled with reasons put forward for a return following a full hearing of the matter. They include that the children are [Country E] citizens, with uncertain capacity to remain in Australia, that there is uncertainty regarding the capacity of either parent to remain in Australia. They included a number of matters for which determination was sought in the substantive case, including whether the mother had invented allegations against the father, questions over whether the mother would return to [Country E], and a lack of connections to Australia.
30.It is important to bear in mind that this is not an “abduction” case as referred to in ZP & PS, the children having been brought by consent. Categorization as an abduction case or otherwise is not necessarily determinative of the issue of summary return, but may assist in informing the consideration as to whether speedy return is in the children’s best interest because of the disruption to the children occasioned by such an act. In this case, the children are well settled in Australia. [D] has spent his entire life in Australia. It was intended by the parents that the children should be in Australia for an extended period. They both took steps to extend the period when the study visa was shortly to lapse.
31.Further, the parties were both present for the Family Consultant report writing process, for the lead up to the trial and the trial itself. There has been a full hearing of the matter, in which a major matter was whether it is in the children’s best interests to remain in Australia.
32.Where the children can be said to be well settled in Australia, and a full hearing has been conducted directed to dealing with the issues that the father says go toward a return to [Country E], it has not been demonstrated that it is in the children’s best interests to order summary return without a determination of their substantive welfare issues.
We accept that the second half of [32] is unfortunately worded. A court could only order a summary return if it was in the child’s best interests to do so. However, read as a whole, these passages explain why, at the stage of the final hearing, the primary judge was not disposed to consider a summary return to Country E for the courts there to determine the appropriate parenting arrangements for the children and would proceed to consider for himself what the appropriate parenting arrangements should be (including, possibly, a return to Country E as part of the overall arrangements). We consider that his Honour was doing no more than declining to conduct a summary hearing for return. This was not an exceptional case that justified an order for summary return.
When so viewed, his Honour’s approach accorded with the relevant principles and was entirely open in the circumstances as they then stood and on the evidence before him. Indeed, the difficulties with the summary return of a child who was born in Australia and had never left it to another country are obvious.
We consider that this ground does not succeed.
The father’s counsel submitted that this was an important case, as it was the first time that an appeal had arisen where an application for summary return had been heard at a final hearing and the principles to be followed are uncertain. We do not agree. The approach to such cases is clearly set out in Z.P. v P.S. Further, s 67ZC(2) of the Act mandates that the principle to be applied is what is in the best interests of the child.
Conclusion
It follows that we are of the view that the appeal must be allowed and the matter remitted for rehearing. We agree with the approach of Watts J in respect of interim orders and costs.
WATTS J
Introduction
This is an appeal by Mr Sahrawi (“the father”) against parenting orders made by Justice Gill on 17 January 2018 in proceedings between the father and Ms Hadrami (“the mother”). Those orders provided that the mother have sole parental responsibility for the three children of the parties’ marriage, then aged 13, nine and 21 months, and that they live with her. The orders also provided for the children to spend time with their father if he was in the same country as them and for electronic communication.
The primary judge rejected the father’s proposal that both parents have equal shared parental responsibility and that the children return to Country E to live with both parents on a shared basis if the mother also returns, but with him if she does not.
The father’s challenges to the primary judge’s reasons focus upon his treatment of the evidence about the allegations which form the basis of the mother’s application for a protection visa and, in particular, the primary judge’s finding that the father had engaged in coercive and controlling violence to secure sex from the mother. The father also complains about the way the primary judge failed to make findings of fact about particular matters including a failure to make a general credit finding in a case in which the father argues that a finding could and should have been made.
The father also appeals against the dismissal of his application for a summary order that the children be returned to Country E so that questions concerning parenting matters might be dealt with by the courts in that jurisdiction.
The mother says that any errors the primary judge made when finding or not finding facts, in this case, did not render unsafe the primary judge’s ultimate determination about what parenting orders were in the children’s best interest.
The Independent Children’s Lawyer (“ICL”) did not appear on the appeal.
Background
Both the parents are citizens of Country E where they were married. Whilst each parent gives a different date of their marriage, the marriage certificate provides a third date, namely, 11 February 2003. The two elder children were born there. The youngest child was born in Australia. All the children are citizens of Country E.
Until they came to Australia in July 2015 on the mother’s student visa, the parties and the two elder children lived in Country E in a block with members of the father’s extended family. On 23 August 2015, the father returned to Country E but came back to Australia in March 2016 for the birth of the youngest child in April 2016. The father then went back to Country E in June 2016, after a period of three months in Australia.
On 18 October 2016, the day before her student visa expired, the mother applied for a protection visa. This application was based upon the alleged sexual harassment of her by a neighbour in Country E and fears of future victimisation by authorities in Country E. The mother and the children are currently on a bridging visa while awaiting the outcome of the protection visa application.
On 1 February 2017, the mother was granted bridging visa support payments based on representations that she had separated from the father in May 2016, the father had been physically abusive to her during the marriage and had ceased to financially support her. The mother provided three forged statutory declarations in support of her application for support payments.
The mother has given three different dates that the parties separated, the most recent of which was December 2016. In January 2017, the mother stopped electronic communication between the children and their father. The father was unaware that the marriage was over until he arrived back in Australia on 7 February 2017.
Upon the father’s arrival in Australia, the mother moved out of her residence to live with a friend and the father spent 12 nights in the home with the children.
The mother commenced proceedings in the Federal Circuit Court of Australia on 8 February 2017. Also on 8 February 2017, the mother applied for a Domestic Violence Order against the father; then withdrew the application but subsequently remade it. In February 2017, a Domestic Violence Order was made in the mother’s favour by the ACT Magistrates Court.
Interim parenting orders were made by the Federal Circuit Court of Australia on 9 February 2017 and 20 February 2017 and by the Family Court of Australia on 12 May 2017 and 3 July 2017.
On 17 February 2017, the parties had three telephone calls which the father recorded, and which the primary judge described as “pivotal” in the assessment of the mother’s claims of family violence against the father. The transcripts of these conversations are 22 pages translated from Arabic and are part of exhibit “H1” at Tab 6 (“the February 2017 transcripts”).
The mother’s position at the final hearing was that if the children were returned to Country E by the court she would not go back there.
Primary judge’s reasons about central issues
At [16] of his Reasons for Judgment, the primary judge identified a number of issues which he said provided a useful basis to assist in identifying key factual considerations for determining the best interests of the children, which were, in the words of the primary judge:
(c) Whether the [father] had committed acts of physical, sexual or emotional abuse upon the mother both in [Country E] and in Australia.
….
(e) ….uncertainty with the mother’s proposal to remain in Australia and the question of the ability of the father to remain in Australia….whether the mother is likely to be able to return to [Country E] and if so, whether she would be free from harm there….whether the mother has suffered sexual harassment by a neighbour in [Country E] or problems with the law enforcement authorities or government of [Country E]
…
(h) ….credibility issues arising from either the mother’s fabrication of violence by the father; or the father’s false denial of violence
The father complains that the primary judge made errors when considering a number of these issues. In his Reasons for Judgment the primary judge discusses:
100.1.Whether the father has committed acts of physical, sexual or emotional abuse upon the mother both in Country E and in Australia at [44] to [82];
100.2.The issue of whether or not the mother had fabricated allegations about being sexually harassed by a neighbour in Country E at [98] to [109];
100.3.The issue of whether the mother had fabricated the allegations about being victimised by the Country E police and authorities at [110] to [119]; and
100.4.The credibility issue arising from the evidence about family violence between the parties at [151].
At [201] the primary judge finds that he does not accept that the father has been physically violent to the mother and at [211] finds that apart from “proven” family violence against the father, the allegations by the mother concerning family violence are without merit.
At [80] to [82] the primary judge found:
80. It should be acknowledged that the evidence in respect of family violence in this case is contradictory. There are matters that significantly undermine the [mother]’s claims against the [father]. The testimony of his relatives, his denials, and the changing landscape of the allegations, and the [mother]’s acceptance to the [father] that she lies in order to protect herself and the children all act to undermine the [mother]’s accounts that the [father] assaulted the [mother], or forced her to participate in group sex, or be video recorded for the internet.
81. On a number of matters it is not possible to prefer one account over another, for example, in relation to the contest as to whether the [father] gave or withheld permission to work, or whether he has threatened to kill the [mother].
82. One aspect does have cogency. This is the issue of forcing the [mother] to have sex. While it cannot be sustained that the [father] physically forced the [mother] to have sex with him, he appeared to accept that he had behaved in a psychologically coercive manner to secure sex from the [mother]. It is conduct that tends toward the vitiation of consent and which trespasses upon an intimate aspect of a person’s life. It has significance not simply because it is connected to sexual conduct, but because of its coercive, controlling nature which, whether it is connected to sexual acts or not, constitutes family violence under the Family Law Act.
The findings in these three paragraphs are central to the challenges in this appeal.
Grounds of appeal not pressed
It is convenient to deal with the father’s grounds of appeal in the following order: Ground 2; Grounds 3, 5, 7(a), 7(b) and 8; Ground 6; Ground 9(a) and Ground 1. Grounds 4 and 7(c), (d) and (e) were not pressed as separate grounds of appeal. Grounds 9(b) – (d) were abandoned.
GROUND 2 - Psychologically coercive violence to secure sex
Ground 2 is that the primary judge’s finding that the father engaged in family violence, by behaving in a psychologically coercive manner to secure sex from the mother, was:
105.1.Not supported by adequate evidence before the court; and
105.2.Not a conclusion which any party urged the primary judge to reach and, accordingly, was not a finding in respect of which the father was afforded procedural fairness.
At [63] to [66] and [82] (it is convenient to repeat paragraph [82]), the primary judge, when discussing the 17 February 2017 transcripts, says:
63.In that same conversation the [father] raised an allegation the [mother] made that he beat her and forced her to have sex with him when in Australia in 2015 (page 168). The [mother] responds saying that the [father] did not beat her. This, in context, is not an assertion that the [father] at no stage beat her, but that, on the occasion that she alleges she was forced to have sex with him in Australia he did not beat her. She had previously made no assertion that occasion involved beating. No inconsistency arises.
64.The [father] then asked whether he had ever forced the [mother] to have sex. Her response (p169) was “you always force me” by psychological means. Her account was that there was no beating or forcing the [mother] onto the bed. The psychological force was that if the [mother] did not make him “feel relaxed and happy in sex” “tomorrow the house of my family will be destroyed” and her freedom would be restricted with “no going out or in.” The [mother] said “(a)ll of this is rape, by the way, because it was not up to me.” The [father]’s response was “(a)lright, [the mother]. Since this matter happened before we came here, what relevance does this discussion have?” She responds that it was because she had been asked for examples of mistreatment while they were in [Country E].
65.Careful consideration must be given to the [father]’s response. The [mother]’s assertion is of coercive or controlling behaviour regarding sex. The [father]’s response appears to accept that this was a feature of their relationship in [Country E]. His response, on its terms, accepts that it occurred, but questions the current relevance of it.
66.The [mother] further asserts in this conversation that the [father] has threatened to kill her on many occasions. This assertion was the subject of dispute by the [father] during the conversation. The dispute in relation to this aspect contrasts with the apparent acceptance in relation to the sexual abuse issue.
….
82. One aspect does have cogency. This is the issue of forcing the [mother] to have sex. While it cannot be sustained that the [father] physically forced the [mother] to have sex with him, he appeared to accept that he had behaved in a psychologically coercive manner to secure sex from the [mother]. It is conduct that tends toward the vitiation of consent and which trespasses upon an intimate aspect of a person’s life. It has significance not simply because it is connected to sexual conduct, but because of its coercive, controlling nature which, whether it is connected to sexual acts or not, constitutes family violence under the Family Law Act.
(Emphasis added)
The mother gave no explicit evidence that she was psychologically coerced into providing sex to the father. The father was not taken in cross examination to his comment “(a)lright, [the mother]. Since this matter happened before we came here, what relevance does this discussion have?” at page 169 of the February 2017 transcripts and no interpretation of it was put to him. Further, neither party, nor the ICL, nor the primary judge, referred to it in submissions. The father correctly asserts that he was not afforded procedural fairness in being provided with an opportunity to comment upon the meaning of the words he used. On that basis alone, it was an error of the primary judge to reach the conclusion that he did.
In addition, counsel for the father argued that the father’s answer “(a)lright, [the mother]. Since this matter happened before we came here, what relevance does this discussion have?” is inherently equivocal. Counsel for the father also submitted that whilst the primary judge had used caution in relation to the interpretation of English translations of statements made by the mother in her protection visa application, no such caution had been used in the interpretation of this translation. Counsel for the mother did not cavil with the contention that the transcript of the conversation as set out above is open to an interpretation other than that given to it by the primary judge. When read in context, the father’s response could just as aptly be interpreted as him asking the mother how her assertions of psychologically coercive sex prior to the parties coming to Australia, could possibly justify her falsely stating that he had used physical force to rape the mother in Australia in July 2015, an allegation, he asserts, could result in him being unable to re-enter Australia in the future.
Whilst counsel for the mother conceded that the transcript of the conversation was open to interpretation, in written submissions, she contended that the mother had given additional evidence of the father engaging in behaviour that made her fear being in his presence such as, taking video of her whilst naked and touching her against her will, which would be considered psychologically coercive. At [50] of the reasons, the primary judge found that there was insufficient evidence to make a finding against the father that he had forced the mother to participate in group sex and video recording for the internet. The mother made no oral submissions amplifying her written submission, nor did the primary judge make any findings that the father’s conduct caused the mother fear apart from the findings he makes about psychological coercion to secure sex based upon the February 2017 transcripts.
At [201] of the reasons, the primary judge acknowledges that this finding is a finding about “a serious matter”. The provisions of s 140(2)(c) of the Evidence Act 1995 (Cth) apply. That finding should not have been made based upon inexact proofs or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362).
There is error in the primary judge’s finding that the father behaved in a psychologically coercive manner to secure sex from the mother.
Was the primary judge’s error in finding the father had perpetrated family violence a material error?
Counsel for the mother argues that when the court considers the impact of the finding of family violence against the father, a different finding would have been unlikely to have resulted in a different outcome to the proceedings, and consequently, the unsound finding did not result in the primary judge’s discretion miscarrying in any fundamental way.
The finding of family violence against the father had two obvious consequences:
113.1.The primary judge concluded at [209] of the reasons that the presumption of equal shared parental responsibility did not apply; and
113.2.When considering s 60CC(2) and (3), and particularly s 60CC(3)(j), the primary judge concluded at [201] and [202]:
201.Issues of family violence loomed large in this trial. As outlined above, I do not accept that the [father] has been physically violent to the [mother]. I do however accept that he has engaged in coercive and controlling conduct of the [mother], specifically with regard to their sexual relations. Coercion and control, by threats and consequences to her freedom, to cause the [mother] to ensure that the [father] is sexually happy is a serious matter.
202.The evidence set out no specific impact upon the children. Nor did it show that the children were directly exposed to the conduct. However, such conduct has the potential to be deeply corrosive within a family, the [mother] being subjected to control by means of fear. In such circumstances, where the [mother] has had such a primary role in the care of the children, even where a specific, direct impact cannot be identified, it cannot be assumed that there is no indirect impact. However, in the absence of evidence on that point, the impact is both unable to be quantified or assessed as to its degree of significance.
Notwithstanding the primary judge found the presumption did not apply, he considered whether or not an order for equal shared parental responsibility should be made and found that it should not because:
114.1.The existence of family violence perpetrated by the father meant circumstances were not conducive to the parties’ obligation to consider and reach decisions about major long-term issues in respect to the children (s 65DAC of Family Law Act 1975 (Cth) (“the Act”)); and
114.2.Geographical circumstances mitigate against both parties being involved in long-term decision making.
In relation to the presumption of equal shared parental responsibility not applying, counsel for the mother argues that for the reasons given by the primary judge, an order for equal shared parental responsibility was not a viable parenting order.
As discussed, the first reason given by the primary judge is based upon the flawed finding of family violence against the father. In relation to the second reason, the primary judge did not adequately explain why geographical concerns meant that the father should be excluded from being involved in decision making about major long-term issues in respect to the children. Had the presumption applied, the primary judge’s approach may have been different.
The primary judge enjoyed the advantage of seeing and hearing the parties and the other advantages referred to by the plurality in Fox v Percy at [23]. The primary judge specifically found that at least in relation to the credibility finding arising from family violence, neither party had proven reliable in their accounts. It was open for the primary judge to so find and accordingly it was not appealable error for him to have failed to find that where the parties’ uncorroborated evidence was in conflict, the father’s evidence should be preferred. It was also not appealable error for the primary judge not to have made a more general credit finding against the mother to the effect that he did not believe anything that she said about any uncontested fact.
The challenge based upon the primary judge failing to make comparative credit findings fails.
Whether the mother had fabricated allegations about being sexually harassed by a neighbour in Country E
The mother alleges that a few months before she came to Australia one of her male neighbours who was married and lived on the third floor of the mother’s apartment complex with his family, kept sexually harassing her “verbally” whenever he saw her in the foyer of their building. She said in her written evidence that “when he tried to touch me I screamed and run [sic] to our apartment”. The mother alleges that she told the father of the attempted touching that night. The father denies that this incident ever occurred and that the mother at any stage prior to filling out the application for a protection visa, raised this issue with him.
At [105] the primary judge concluded that “[t]here is significant uncertainty as to whether the incident with the neighbour occurred”.
At [108] the primary judge concluded that:
As the evidence stands in these proceedings there is significant uncertainty about the claims concerning the neighbour… with it not being established that the incident occurred, but also not being established that it has not occurred.
The father and the paternal grandfather (who owned the apartment block) both gave evidence that the man named by the mother at no time ever lived in their residential block.
The mother’s evidence about this matter is inconsistent (referred to at [134.2.1] and [134.2.2] above).
The primary judge’s interpretation and application of M v M (1988) 166 CLR 69 (“M v M”)
When discussing the mother’s allegations about what the neighbour had done to her in Country E, the primary judge said:
106.While often it will be the case that such a matter is then resolved by the failure of the party alleging the fact to establish the fact, the particular features of the jurisdiction of this Court to leave the matter in a state of uncertainty and to assign it significance as an uncertain fact. Such was recognised in the seminal High Court case of M v M (1988) 166 CLR 69. There the Court recognised that:
proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression… the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
107.It should not be thought that the above approach is restricted to any one particular class of allegation or assertion, such as those pertaining to sexual abuse. The conclusion arrived at by the High Court, in identifying the particular characteristics of the jurisdiction being exercised by this Court, is of more general application to the facts and considerations underlying a conclusion of what is in the best interests of a child.
108.As the evidence stands in these proceedings there is significant uncertainty about the claims concerning the neighbour. There is conflict in the accounts given by the [mother], the choice to pursue a student visa with its attendant delays, the conflict in the [father]’s behaviour in respect of the allegations, and the evidence from his father of there being no such resident of the apartments. The matter is left in a state of uncertainty, with it not being established that the incident occurred, but also not being established that it has not occurred.
109.There remains a risk of harm to the [mother] if she returns to [Country E] born of the uncertainty as to whether these events occurred.
I am unable to accept that statements of principal made by the High Court in M v M have a more general application to fact finding in parenting cases.
The High Court in M v M articulated the test of “unacceptable risk” in a case where the mother alleged a father had sexually abused a child. A finding of “unacceptable risk” requires a real and substantial consideration of the facts; a consideration of the nature and degree of the risk; a consideration of how any risk might be ameliorated and a proper balancing of the risk against the benefit to a child of having time or communication with an alleged perpetrator.
It is an error to extend the “unacceptable risk” test as an approach to fact finding in this case in respect of allegations of harassment of the mother by a neighbour in Country E.
Axiomatically, one of the principal tasks of a primary judge is to make findings about contested evidence in the case. The question is whether or not, on the balance of probabilities, something did or did not happen. The primary judge erred in not making a determination as to whether or not the mother had fabricated allegations of whether she was sexually harassed by a neighbour in Country E or, alternatively, explaining why, based on the evidence, he was unable to do so. Further, the primary judge erred in finding that there was a risk that a fact which the primary judge had not found to be established, might be true.
Whether the mother had fabricated the allegations about being victimised by the Country E police
The mother said that two interactions with the Country E police and an interaction between the father and the intelligence service led her to believe that the Government will kill her if she returns.
The mother says the first interaction with the police occurred when she reported the neighbour more than a couple months before she came to Australia in July 2015. The mother says that the second interaction occurred, at her insistence, on the day before she left to come to Australia when she and the father went to the police station to speak to the police officer who had released the alleged perpetrator and who had not believed the mother. The mother asserts the officer was rude to them; had no time for them and that made the mother very angry. The mother alleges she said: “The country is corrupted and there are no laws to protect women, and the country is run by senile old religious men and royal family who believe they are better than the rest of the citizens”. The mother also says she told the police officer that the Country E people were not stupid and will “revolt soon against the corruption and dictatorship of these rotten royals and Imams”. The mother describes how the police officer was shocked; started screaming at her; told her that she would be “arrested soon” and that “these western words” will send her to prison for good. She alleges that the police officer told his men to kick her out of the police station and promised to punish her severely for what she had said against the teaching of Islam and against the royal family. It is the mother’s case that all of this happened in the father’s presence. The mother asserts the father was very upset with what the mother had done when they were at the police station.
The father says that on no occasion did he attend a police station with the mother and that no event like that described by the mother took place in his presence.
The primary judge records that the mother said that the father told her that days after she had departed for Australia he received a visit from the members of the Country E Intelligence Service who interrogated him for a few hours about the mother and his affiliation with some groups. The primary judge records that that account cannot be true given that the uncontested fact is that the father travelled to Australia with the mother and the two elder children and was, accordingly, not in Country E at the time of this alleged visit by the Country E Intelligence Service. As indicated, the mother changed her account of the timing of this alleged visit by the Country E Intelligence Service to a time after the father returned to Country E and the primary judge found that “[t]his presents as a potentially significant inconsistency”, but noted that some caution should be exercised on the basis that the account was provided in English through the assistance of a translator. The primary judge acknowledged that the allegations in relation to the Country E Intelligence Service themselves were made uncertain because they were based upon the allegations made in relation to the neighbour in Country E, which themselves were uncertain.
The primary judge also records that the father denied that he had had any interaction with the Country E Intelligence Service about the mother or that he told the mother that he had.
As indicated, the primary judge places some weight upon the fact that the father initially supported the mother in her application for a protection visa which included providing financial assistance for that visa and that the father was aware of some of the allegations which were included by the mother in that visa application.
The mother had an obvious reason for making these allegations in the context of seeking a protection visa in Australia. The mother said in the 17 February 2017 telephone conversation that she would lie and use anyway to protect herself and the children.
The ICL submitted that a finding should be made that this allegation about the Country E Intelligence Service was fabricated by the mother primarily because of the mother’s inconsistent evidence as to when the event occurred.
The primary judge concluded that the allegations involving the Country E Intelligence Service were “neither proven nor disproven” and “[a]s with the issue concerning the neighbour, there remains a risk to the mother as a product of the uncertainty of this matter”. Having done so, the primary judge has again erred in not making a determination as to whether or not the mother had been victimised by Country E police or Country E Intelligence Service or, alternatively, explaining why, based on the evidence, he was unable to do so. In addition, the primary judge has again, apparently, relied upon M & M to conclude that there is a risk that facts which the primary judge has not found to be established, might be true.
The mother’s immigration status in Australia
The ICL submitted that the primary judge should find that the mother’s claims in her application for a protection visa were fabricated and as a consequence, there was a real possibility that the mother would be forced to return to Country E.
The ICL said she supported an order for the children to be returned to Country E because the father has a very remote likelihood of staying in Australia and because if the mother was found to have fabricated her claims, the mother also will be compelled to return.
Ground 5 contends that the primary judge failed to specifically deal with these submissions by the ICL.
At [120] to [136] of the reasons, the primary judge discusses the immigration status of both parents and the expert evidence of an immigration consultant. The primary judge concludes:
163.1.The prospects of the mother being successful in her application for a protection visa depends upon the Department’s assessment of the credibility of her claims;
163.2.If the Department finds the mother’s claims credible, they form a good basis for the grant of a visa; and
163.3.The mother’s right of appeal and subsequent judicial review against an adverse decision by the Department could take in excess of one year.
The primary judge found that beyond that, he was unable to assess the likely outcome of the mother’s application for a protection visa. This reasoning is consistent with the primary judge’s finding that there may be a risk of harm to the mother if she returned to Country E.
Accordingly, there is no substance in the submission that the primary judge has failed to engage with the issue of the likely outcome of the mother’s application for a protection visa.
However, there is substance in the submission that had the primary judge not found that he was unable to make a determination about the mother’s allegations, the primary judge may well have accepted the ICL’s submission about the likely outcome of the mother’s application for a protection visa. Such a finding is likely to have had an impact on the orders that were made.
Conclusion in relation to Grounds 3, 5, 7(a), 7(b) and 8
There is merit in grounds 3, 5, 7(a), 7(b) and 8.
GROUND 6 – The primary judge’s consideration of the evidence of the family consultant
The father complains that the primary judge misinterpreted, or paid insufficient regard to, the evidence of the family consultant concerning the significance of potential findings that the mother had fabricated allegations in respect of family violence.
At [180] to [181] the primary judge said:
180.The Report Writer was questioned as to the significance of a finding being made that the assertions made by the mother, both against her neighbour and the [Country E] police and against the father, are fabrications. Initially her view was that if this was the case it was a major concern as to the mother’s character rather than as to her parenting capacity. However, the Report Writer accepted that it impacted significantly on their capacity to co-parent (although I interpolate that if the allegations are not fabricated it also calls into question the capacity for co-parenting), or could potentially raise mental health issues if it meant that the mother was not in touch with reality (although the Family Report writer indicated that she did not hold the expertise to make any such assessment but that further expert evidence may be required to deal with that issue). No evidence was led to establish a mental health issue.
181.The Report Writer accepted that such a fabrication may indicate the mother placing her needs ahead of those of the children which may mean that she does not prioritise the children in other areas. She also thought that involving the children in such a fabrication may damage their relationship with their father. By the close of her evidence the Report Writer thought that the issue of fabrication was pivotal as to the determination of the case. This appeared to be because if the allegations were fabricated, then the mother does not face issues of safety in returning to [Country E]. It is those issues of a risk to her of return that, in the Family Report writer’s mind, meant that the risk to the relationship between the children and the father was outweighed in determining what arrangements should be made. Presumably this meant that fabrication meant that the [mother] would be safe to return to [Country E] such that there could be time spent by the children with both parents.
The primary judge has clearly and cogently summarised the family consultant’s opinions and recommendations if a finding was made that the mother had fabricated the allegations. The primary judge did not make that finding and, consequently, these opinions and recommendations became irrelevant to the primary judge.
However, the primary judge erred when finding that no determination could be made as to whether or not the mother had fabricated the allegations. Had the primary judge made a finding that the mother had fabricated allegations, the opinions and recommendations of the family consultant would have been relevant but not necessarily determinative.
The primary judge did not misinterpret the family consultant’s opinions and recommendations, but because of the errors which have been identified (under grounds 3, 5, 7(a), 7(b) and 8), ground 6 is made out.
GROUND 7(f) – Error in finding that the mother would not return without compulsion
The father contends that the primary judge erred in his approach to the question of whether or not the mother would return to Country E absent compulsion from Australian migration authorities.
The primary judge deals with this issue at [91] to [95] as follows:
91. A determination of the matters raised by the [mother] as preventing her return by this Court does not determine whether the [mother] will return to [Country E]. Her return is governed by two other factors. The first is whether she will be returned by compulsion by the migration authorities, or whether she will be granted a protection visa. Findings made by this Court do not determine that outcome, nor do they necessarily influence that outcome. The second factor relies upon the choice of the [mother] to return.
92. There was no evidence to suggest that the [mother] will, absent compulsion from the migration authorities, depart Australia for [Country E]. No part of her case suggests that there is a possibility of return. When cross-examined about the prospect of return, she declined to entertain the possibility.
93. While under cross-examination the [mother] asserted that while she would previously have returned if the issues that flowed from the neighbour were resolved, her view was that she could now no longer return in any event.
94. There is no evidence from which it may be inferred that she will return to [Country E]. In the face of these circumstances, it cannot be assumed that an order for the children to return would also cause, or even be likely to cause the mother to return. Her application entertains no such possibility.
95. It is not open, given the above factors, for the Court to contemplate an outcome based upon the possible return of the [mother] to [Country E] other than as a product of compulsion by the migration authorities.
The father submits that the primary judge made the following factual errors in these findings:
175.1.The mother’s affidavit evidence made no assertion that she would not go back to Country E if the children were returned there and in cross-examination by the ICL the mother simply refused to countenance the possibility that she might not be able to remain in Australia and did not positively assert that she would not voluntarily return to Country E if the court ordered that the children should return there; and
175.2.The primary judge relied upon an absence of evidence that the mother would not return to Country E without compulsion as justifying a positive finding that she would not do so without compulsion and, consequently, that unfairly placed an obligation on the father to disprove a matter which was within the mother’s capacity to prove.
The primary judge accurately recorded that there was no evidence to suggest that the mother will, absent compulsion from the migration authorities, depart Australia for Country E and no part of the mother’s case suggested that there is a possibility of return.
The questions that were asked by the ICL of the mother in cross examination went to the question of what the mother would do if her visa application was rejected. That is, the questions were about what her proposal would be if she was forced by immigration authorities back to Country E with the children. The ICL did not ask the mother questions about what she would do if the children were ordered back to Country E and she was free to remain in Australia.
The mother gave the following evidence when cross examined by the father:
[COUNSEL FOR THE FATHER]: So you would agree, then – stop, please. You would agree, then, that, if this incident is entirely made up, there is absolutely nothing to stop you from going back to [Country E]?
THE INTERPRETER: Yes, of course. Yes. Yes. That was my thinking. If the situation is solved, yes, I will go back. But then, after what happened here and all the problems, I can’t go back to [Country E]. They will kill me.
HIS HONOUR: Sorry – I didn’t catch the last part of that answer.
THE INTERPRETER: They will kill me….
HIS HONOUR: Right. Sorry – can I ask who is “they”?
THE INTERPRETER: The government.
In final submissions, the ICL referred to the evidence by the family consultant that the mother was very loving and caring and submitted it may be the case that she would make the decision to return with the children. However the father, in final submissions, conceded that if an order was made for the children to return, the court would not know if the mother would go back voluntarily.
The finding of the primary judge that no assumption should be made that an order for the return of the children would cause, or even be likely to cause the mother to return, was open to the primary judge.
There is no merit in ground 7(f).
GROUND 9(a) – An error in a finding of fact
The primary judge found that when the parties came to Australia on 24 July 2015, “the father stayed for approximately 10 days”. That was an adoption of evidence in the mother’s affidavit. The father’s evidence, supported by corroborative written documents, was that he stayed in Australia for a month until 23 August 2015.
The mother was shown those documents in cross examination and revised the evidence in her affidavit saying she didn’t remember if the father was still in Australia on 22 August 2015.
Whilst the primary judge was in error in making the finding that he did, that error was immaterial.
GROUND 1 – Determination of father’s s 67ZC application
Ground 1 reads as follows:
In connection with the learned trial judge’s determination that it was not appropriate for the Court to exercise its jurisdiction to order the summary return of the children to [Country E], the learned trial judge erred in finding that such return was incompatible with a determination of the children’s substantive welfare issues following a full hearing.
The father had initially sought an interim summary order (in the exercise of the court’s welfare jurisdiction pursuant to s 67ZC of the Act) that the children be speedily returned to Country E so that questions concerning parenting matters might be dealt with by the courts of that jurisdiction. The father had abandoned the pursuit of that remedy on an interim basis but renewed it at the final hearing.
At the final hearing, the father sought an order that the children be returned to Country E relying on the court alternatively exercising two different powers. Firstly, the father sought an order under s 67ZC of the Act relying on the welfare jurisdiction for a return of the children without making other final parenting orders. That section requires the court to regard the best interests of the children as the paramount consideration (s 67ZC(2), s 60CA and s 60CB(1) of the Act). In the alternative, the father sought that the court make a return order exercising its power under s 65D of the Act so as to make final parenting orders which the court thought proper. Again, when making a parenting order, the court must regard the best interests of the child as the paramount consideration. In the exercise of each of these powers, the way in which the court determines what is in a child’s best interests is the same. The court must consider the matters set out in s 60CC(2) and (3) of the Act. The only difference in the exercise of each of the powers is that an exercise of power under s 67ZC does not involve making final parenting orders in Australia whereas an exercise of power under s 65D of the Act does.
Counsel for the father submitted that this case raises for the first time the question of the correct approach to an application for the return of a child in pursuit of the court’s welfare jurisdiction after there has been a full hearing, stating:
Although the s 60CC factors are still relevant and best interest is still the test, it may shift the focus to a recognition of the children’s connection with the country to which their return is sought, in particular, their relationship with extended family, cultural and religious issues and the court may also consider the extent to which it has sufficient cultural understanding and/or evidence about local conditions ….
I am unable to agree with the submission by the counsel for the father that in an application under s 67ZC of the Act, different kinds of matters might receive emphasis in comparison to those types of matters that might be dealt with under an application under s 65D. Both sections require that the court must consider and weigh all matters in s 60CC(2) and (3) of the Act including any matter under s 60CC(3)(m) of the Act.
The Full Court in Karim v Khalid (2007) 38 Fam LR 300 made clear that it is an error to apply forum non conveniens principles in reaching the decision under s 67ZC of the Act. In Z.P. v P.S. (1994) 181 CLR 639, Mason CJ, Toohey and McHugh JJ stated:
Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum.
The primary judge correctly at [24] observed:
Chief Justice Mason, Toohey and McHugh JJ continued that even where such a matter is not dealt with as a threshold issue, it may be dealt with later in the case, once the court has commenced to hear the matter as “(f)urther investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.”
(Emphasis added)
The primary judge discusses and determines the father’s s 67ZC application under the heading “FORUM” in the following way:
29.The reasons identified by the [father] are set out in his updated case outline filed 18 August 2017 and in oral submissions. The reasons were intermingled with reasons put forward for a return following a full hearing of the matter. They include that the children are [Country E] citizens, with uncertain capacity to remain in Australia, that there is uncertainty regarding the capacity of either parent to remain in Australia. They included a number of matters for which determination was sought in the substantive case, including whether the mother had invented allegations against the father, questions over whether the mother would return to [Country E], and a lack of connections to Australia.
30.It is important to bear in mind that this is not an “abduction” case as referred to in ZP & PS, the children having been brought by consent. Categorization as an abduction case or otherwise is not necessarily determinative of the issue of summary return, but may assist in informing the consideration as to whether a speedy return is in the children’s best interest because of the disruption to the children occasioned by such an act. In this case, the children are well settled in Australia. [D] has spent his entire life in Australia. It was intended by the parents that the children should be in Australia for an extended period. They both took steps to extend the period when the study visa was shortly to lapse.
31.Further, the parties were both present for the Family Consultant report writing process, for the lead up to the trial and the trial itself. There has been a full hearing of the matter, in which a major matter was whether it is in the children’s best interests to remain in Australia.
32.Where the children can be said to be well settled in Australia, and a full hearing has been conducted directed to dealing with the issues that the father says go toward a return to [Country E], it has not been demonstrated that it is in the children’s best interests to order summary return without a determination of their substantive welfare issues.
The consideration by the primary judge of the “Forum” issue came after the hearing of all of the evidence and submissions in the final parenting hearing. The primary judge demonstrated at [32] that he was mindful that any order for summary return pursuant to s 67ZC of the Act had to be made based upon a consideration of the children’s best interests. He finds that it is not in the children’s best interests to deal with the matter under that section and that conclusion was open to the primary judge. This was not an exceptional case where a summary return was warranted after a full hearing without otherwise making parenting orders.
There is no merit in Ground 1.
Conclusion
The primary judge was in error in finding that the father engaged in family violence by behaving in a psychologically coercive manner to secure sex from the mother and that finding had an impact upon the parenting orders which were made. The primary judge also erred in not making relevant determinations or, alternatively, explaining why, based on the evidence, he was unable to do so. This, in turn, led him to pay insufficient regard to particular evidence of the family consultant. As a result, the appeal should be allowed and the orders made by the primary judge should be set aside.
Interim Orders
In the event that the appeal was upheld, and an order was made which set aside the primary judge’s order of 17 January 2018, the father made an application that, pending further order, orders be made for the children to spend time with the father in the terms made by the primary judge, as long as the parties continued to live in the same country and for electronic communication. The mother did not oppose that application. Accordingly, those orders should be made.
The father also sought an interim order for equal shared parental responsibility or, alternatively, no order for parental responsibility. The mother made no submission in relation to that application. The appeal against the primary judge’s finding that the father perpetrated family violence is upheld. Accordingly, pending further order, the presumption of equal shared parental responsibility applies. Notwithstanding the provisions of s 61DA(3) of the Act, I am of the view that it is in the children’s best interest to make an interim order for equal shared parental responsibility.
Costs
It was common ground that in the event the appeal was allowed, this was not a matter in which an order for costs would be made. There has been an error of law and it is appropriate that the parties receive certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and any rehearing. Orders should be made accordingly.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on <insert date judgment delivered>.
Associate:
Date:
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