Evidence of one party preferred over the other

Evidence of one party preferred over the other

Holinski & Holinski [2016] FamCA 45 (22 January 2016)

Last Updated: 17 February 2016

FAMILY COURT OF AUSTRALIA

Discussion

133. An assessment of the different versions on the issues of the father’s alleged family violence and findings are based to a large extent on an assessment of the credit of each of the parents and the witnesses who gave evidence on their behalf. In relation to the issue of the maternal extended family’s alleged interference in the parents’ relationship also there is some undisputed corroborative evidence such as the email sent by Mr M to the father.
134. Where the respective versions differ as to these two issues, I prefer the father’s version over the mother’s for the following reasons.
135. Firstly, in my view, although this is not determinative of itself, I take into account the timing of the mother’s allegations of violence and abuse. When the mother first left the family home with the children in January 2013 her principal concerns (which can be gleaned from the note she left the father and from their email exchange), appear to have been her distress and severe frustration at the father refusing to give consent for her to take the children out of Australia with her. While the mother characterises this as controlling conduct by the father and refers to being “a prisoner trapped in [her own home] by her own husband” and alleges that he was “constantly over [her]”^[5] the complaints of control appear to be limited to this issue. In the first of the email messages from the mother she requests that the father sign the boys’ passport papers as a demonstration of the father’s love. Initial emails exchanged between the parties which are attached to their respective affidavits initially concern the passport applications and later emails deal in a civil manner with the children and their wellbeing.
136. On 15 January 2013 the father commenced these proceedings. At that stage the father sought location and recovery orders, orders that the children live with him and that the mother be restrained from removing the children from Australia. The father did not file a Notice of Abuse at this stage. The mother filed a Response on 31 January seeking to permanently relocate to the United States with the children on a final basis and other orders. In a Notice of Abuse (known at the time as a Form 4) filed on the same day the mother alleges of verbal abuse, one occasion when the father withheld L from her, the father “taking sides” with his family, harassment and stalking and attempts to deny the mother a relationship with her family (emphasis added). She did not make any of the more serious allegations set out in her affidavit such a sexual misconduct towards the child and sexual abuse of herself even though on her case they had occurred during the relationship.
137. After the father commenced proceedings, the parties initially entered into negotiations concerning their respective interim applications for the father to spend time with the children and for the mother to be permitted to travel with the children to the United States. There is no dispute between the parties that they reached agreement as to what they regarded as appropriate orders in late May 2013. In the terms of settlement document dated 27 May 2013 the parents consented to orders that the children live with their mother and spend unsupervised time with their father in an increasing regime of up to three hours on each occasion, twice per week, as well as telephone communication.
138. It was not until the Judge of the Federal Circuit Court declined to make those orders and the father sought the mother’s agreement to the children spending time with the children though correspondence with the mother’s lawyer that she made the general allegation through a letter from her solicitors that she was “continually abused psychologically and emotionally by [the father], his parents and his extended family [and the children] were regularly exposed to this abuse”. That letter dated 6 June 2013 from the mother’s solicitors went on to say that the mother “is not able to contemplate that [the father] or his family again have the opportunity to inculcate the children with their toxic views” and that “[the mother] will do whatever is required to prevent [the father] and his family from having any contact with the children”. It is also in this letter that the mother accuses the father and his family of living in a “destructive cult”.
139. There is no explanation given by the mother about why she was prepared to allow the children to have unsupervised contact with the father a short time prior to giving instructions to send such a letter. I infer from the undisputed fact that the parties exchanged civil emails between one another for some time and that they agreed that the children could have unsupervised time with the father pending determination of the interim issues that the mother initially did not have concerns about the children spending time with the father. It can also be inferred that there was some level of cooperation between the parties at that time because the mother continued to hope that the father may consent to the children travelling overseas or that she may be permitted to do so by court order. It can also be inferred that when the Judge was not prepared to make consent orders in late May 2013, the mother’s approach to the proceedings changed and she made the serious allegations that the father and his family live in a religious cult, that she had been abused by all of them for a number of years and the children were regularly exposed to the abuse. As is said in the letter she then decided to do “whatever is required to prevent [the father] and his family having any contact with the children”
140. In my view it is also of significance that the mother does not maintain the position that it is not in the children’s best interests to have any contact with the father or extended family nor does she maintain the position that the father and his family live in a “religious cult”. Rather, when the father attempted to criticise her and her family for holding extremist views in these proceedings, the tenor of the mother’s case is that each of the parents hold beliefs and pursue practises consistent with their right to religious freedom and neither should be criticised for holding extremist views. Although each of the parties cases have evolved over time, the mother’s position on this issue is so significantly different to that she originally took, in my view that it is relevant to her credit in these proceedings.
141. Further, it is in my view of significance that some of the allegations that the mother makes in her affidavit are extreme and if the mother genuinely contended that these events had in fact occurred it would be expected that she would have relied upon them in the proceedings as they give rise to grave concerns with respect to the father’s conduct and the risk he may represent to the children. It also would be expected if these events had occurred it would be expected that she would have complained to appropriate authorities or at the very least her family members at the time. For example, the mother alleges in her affidavit that between March 2011 and July 2012 the father would “tickle [L’s] testicles when he was changing his nappy to try to get [L] to have an erection and ejaculate”. In addition to the concerns about the seriousness of this allegation, this claim that the father would attempt to cause the child to ejaculate is inherently unbelievable given the child’s age. The mother also claimed in her affidavit that when the father showered L on occasions the father would poke and slap the child on his testicles.
142. The mother also includes a number of paragraphs in her affidavit in relation to her sexual relationship with the father. The mother alleges that “nearly every sexual encounter” throughout the parties married life was painful for her and implies that the father behaved in a coercive manner and that sexual activity between them was regularly non-consensual. For example she says “during sex, I always felt used and violated. There were countless times when I felt like what it must be liked to be raped”. She also refers to “things that I had to do” for [Mr Holinski] (emphasis added) to which she objected, and alleged that the father said to her many times throughout the marriage after sex that “I felt like I could have turned violent without being able to stop myself”, which scared her. Although the mother does not give details of the basis upon which she felt like a victim of rape or felt violated, she clearly implies that the father regularly throughout the marriage engaged in non-consensual sexual activity with her. The absence of details and the fact that such serious allegations are implied of itself in my view raises some doubt about the incidents.
143. The failure of the mother to pursue such a serious allegations of sexual misconduct towards L and sexual abuse of herself in these proceedings, which would raise issues of significant risk if they were founded, raise doubts about the veracity of the mother’s account concerning allegations of family violence generally.
144. I am also of the view that the mother’s account of a number of the other specific incidents relating to violence, if not untrue, are exaggerated. For example, the mother alleges that the paternal grandfather in a telephone conversation on 28 May 2012 became irate and yelled at her for about 10 to 15 minutes. Although the paternal grandfather was cross-examined about this incident the mother’s version was not put to him. I also had an opportunity to observe the demeanour of the paternal grandfather when giving evidence and he impressed at me as a particularly quietly spoken, thoughtful and gentle person. He was not challenged concerning his evidence that he and his wife treated the mother as their own daughter and were concerned about her difficulties in adjusting to live in Australia. In general I found the paternal grandfather to be an impressive and reliable witness who was able to reflect upon his own experience and difficulties when he first arrived in Australia from another country and was empathetic to the mother’s experience. I accept his evidence, which support the father’s position, that the actions he took, which the mother interprets as coercive and controlling where a genuine attempt on his behalf to assist the mother in settling in Australia and became a part of the extended paternal family.
145. The mother’s account of the father’s coercive conduct in my view also contains a number of inconsistencies with other parts in her own evidence and as between her own witnesses particularly in relation to the father preventing her from keeping contact with her family. For example, in relation to the father’s decision that the parties abstain from contact with their families for a period of three weeks commencing around 28 February 2010 the mother‘s case is that this embargo was imposed with respect to her family alone. However, in her own affidavit she says that she had conversation with her parents (after a family meeting with the extended paternal family) about a week later and just over another week later her parents arrived in Australia. Although there was then an incident with the maternal family and the father was clearly unhappy about their presence, the extended maternal family did stay with the parents for some time. The mother’s sister Ms O also says that the day after they arrived although the father had forbidden the mother to go out with her family, the mother had “a firm resolution” and spent the day with them. The mother also gives evidence of travelling with her parents to Canberra for a few days in this period and stresses that it was her decision to do so. Further, although the mother says that from around November 2011 the father conducted daily checks on her internet account, read all her emails and checked the history of her Skype account, elsewhere in her affidavit she says that she maintained a secret Skype account of which the father was unaware for over a year from about mid-2011.
146. In addition to accepting the father’s version over the mother’s as to matters relating to allegations of the father’s “control” and coercion, I am also of the view that the totality of the mother’s evidence does not support a finding that the father prevented the mother from keeping connections with her family and friends. As noted above, despite what may have been the father’s intention to restrict communication between the mother and her family, he did not prevent her from maintaining this communication on a regular basis. The mother’s family also visited and stayed with the mother in June 2009, March 2010, March 2011, December 2012 and January 2013. Further, the mothers own evidence does not support her case that she was unable to exert any control over her life due to the father’s control. For example, the mother travelled to Canberra with L and her family in April 2010. She was also able to arrange for her parents and sister to come to Australia without the father’s knowledge to assist her in leaving him in January 2013. She was able to leave the father, withdraw money from their joint account, take some critical documents and keep herself and the two children in an undisclosed location for eight months. The mother on her own case was also able to exert her own view concerning significant matters in the relationship even though the father was opposed to those views. For example, the mother agreed that although the father was opposed to physical discipline and non-vaccination that she had achieved agreement from him on those issues during the marriage.
147. For the foregoing reasons given I am not satisfied that the father engaged in behaviour that coerces or controlled the mother or caused her to be fearful and in particular that he prevented her from keeping connections with her family, friends or culture.
148. I also accept the father’s evidence as to the issues in dispute which found his concerns about the risk that the mother may not return the children to Australia if she were permitted to take them to the United States. I am satisfied that the maternal grandparents attempted to find a way to remove the mother and L from Australia without the father’s consent and that the mother knew of these plans. I also accept that L had the conversation about overseas travel in the presence of the parents in March and in April 2014.
149. Although I prefer the father’s evidence over the mother’s as to these issues, I do not make a general finding as to the mother’s credit. In respect to some issues, such as her views on chiropractic, home-schooling, discipline and religious beliefs I found the mother to be open and frank.