Findings of credit and facts

Findings of credit and facts

Edmonson & Edmonson [2016] FCCA 1377 (17 June 2016)

Findings About The Credit Of The Witnesses

92. As Ms S, amongst others, has observed, much in this case turns upon the assessment made by the Court of the two primary witnesses. There are very serious disputes between them as to what happened on various important occasions. At the heart of the matter is whether the father has been violent either to the mother and/or the children and, if so, the extent of it. Countervailing it, the Court has to evaluate the father’s absolute denials of violence and his interrelated assertion that the mother invents them.
93. The difficulty is, and it is of course regrettable to have to say this, that these were two almost equally dreadful witnesses. I have made a number of comments about each of their evidence in passing when traversing what they said. I should make it clear that on numerous occasions the father’s answers were extremely unconvincing. He had a habit of answering questions with questions in a fashion that I found evasive. Some of the things he said were frankly utterly unbelievable. His assertion that he did not know he might be in trouble as a result of breaching the Intervention Order by what he did at (omitted) is patently absurd. That he knew it was a breach of the order is apparent by his reaction thereafter. He made very numerous phone calls and text messages to the supervisor, Ms G, obviously in an endeavour to exculpate himself and visited no less than three police stations shortly thereafter. While he has said that this was because, in effect, of a fear that the mother would try to set him up and/or make false allegations about the matter, I am comfortably satisfied, having seen and heard him give his evidence, that he was well aware that he had breached the Intervention Order on that occasion and was seeking to self-exculpate.
94. I will return as to what is to be made of the (omitted) incident when I deal with the facts. As I have already indicated, the father, on one occasion, directly changed his evidence about whether he saw the mother holding the telephone during the (omitted) incident. His assertion that he had no idea the mother did not want to see him or not want to talk to him during the (omitted) incident, given in answers to questions from counsel for the Independent Children’s Lawyer is completely unbelievable. His assertion that X did not become anxious when she first saw him on a supervised basis is clearly contradicted by the supervisor’s report.
95. While he says he was harassed at work by the mother making false allegations, I roundly fail to accept this was the case. I have the benefit of having seen the father in the witness box over a reasonable period of time, quite sufficient to draw conclusions. His answer about whether he knew who Mr C was (whether this person is Mr C, Mr J or (omitted) remains unclear) given in the police interview is palpably untruthful.
96. The mother, I regret to say, was no way a better witness at all. I have already dealt with some unsatisfactory aspects of her evidence in passing. Her answers were an unfortunate mixture at times of self-serving denials, untruths (that she had told Ms S she only wanted supervised time until the final order), prevarication or otherwise unbelievable.
97. It should be noted that, in the mother’s case, as with that of the father, while their English is, of course, not bilingual or perhaps totally fluent, both have more than sufficient command of the language to express themselves clearly. Their endeavours to take refuge in the fact that English is their second language do not persuade me that the various unsatisfactory aspects of their evidence are explained away.
98. As with the father, the mother was in the witness box for an appreciable period of time. The mother is clearly given to hyperbole and exaggeration on occasions. She is also, however, a person whose emotions readily get the better of her and I regret to say that, as with the father, she was in the main an unconvincing witness.

Findings About The Facts

99. The 2011 family report with Mr N was disavowed by the mother. Nonetheless, I think it is more probable than otherwise that what she told Mr N was true despite these denials. It should be noted that, if I were to accept her as being wilfully dishonest to Mr N, this scarcely redounds to her credit as, if it were so, she was seeking to obtain a forensic advantage in that case against her former husband by being untruthful.
100. Mr N is an extremely experienced practitioner who commonly displays considerable insight. I think that he accurately recorded what the parties said to him.
101. It is noteworthy that, when pressed in cross-examination in this case, the mother sought to assert that the husband only really started to assault her in 2012. She put this as being connected to his obtaining citizenship. I note that A did not indicate to Ms S that Mr Edmonson had ever hit her. It seems more probable to me than otherwise that what A said was true.
102. Nonetheless, what is clear, as I find, is that the father was a controlling and domineering figure. Arguments, as X reported to Ms S, undoubtedly occurred between the parties from time to time, albeit probably conducted in (language omitted). I think the father did not exercise continuous physical abuse of the mother who did not, in truth, particularise in any detail any given assault. What he did do, of course, was to threaten the mother.
103. The father’s indication to Ms S that the mother left him for another man is, in my view, a telling one. He clearly thought that this was so and he pursued with X, in the presence of Ms C the question of the identity of who it was who attended the family report with the mother. I find as a fact that he made threats to kill the mother in the event that she left him and I find as a fact that he threatened to kill the children also.
104. Although as I find the father may well have threatened to use physical discipline to hit the children, I do not find that he has ever hit X. His evidence that he adores X and would never hit her was given with sincerity and, although the father undoubtedly has a temper, I do not think it will apply in such a fashion as to involve a risk of harm to X.
105. The most concerning incident, of course, is the (omitted) incident. Counsel for the father had to concede that, even on the father’s version of the events, he has breached the Intervention Order and he will doubtless be dealt with by the courts for that in due course. Whether a more serious finding is made remains to be seen.
106. No one has suggested, however, that this Court should not do the best it can to deal with this incident now, noting that there is a different standard of proof. Counsel for the mother did initially cavil with this proposition, but, in the end, as I pointed out, it was not appropriate to put the trial of this matter off for many months until the criminal proceeding is over. The Court has an obligation in the best interests of the child to try and resolve the matter now.
107. In the end, I think the matter, as counsel for the Independent Children’s Lawyer submitted, is somewhere in the middle between the parties’ versions of the events. The father undoubtedly pulled up in his car, saw the mother, and opportunistically walked towards her in breach of the Intervention Order, as I find he well knew, and said to her “(omitted)”. The mother made a gesture for him to go away and he did. I have no doubt he said more than what he admits. I find that he did make remarks to the effect that the mother was still his wife and the like. He made threats to her. Nonetheless, he did, at least, go away and got in his car. I do not accept that his seeing the wife twice was an accident. I think it was part of his ongoing controlling behaviour.
108. Whatever the father did, it deeply distressed X and the mother and the father’s denial that X was upset is one I do not accept.
109. What I cannot find, however, is that the father made the throat-slitting gesture that the mother describes. The accounts given to third parties do not suggest that X had seen anything of the sort, nor, indeed, did the mother raise this with Ms G when she attended contemporaneously. What is clear, however, is that both the mother and X were terribly upset by what occurred. Although it is perhaps not entirely possible to say exactly what the father did, it was more than he admits and produced a very severe effect upon both X and her mother.
110. Notwithstanding this, the time between X and her father up to then supervised by Ms G had generally gone very well. The relationship between X and her father was rapidly re-established with only a very brief initial hesitation on X’s part.
111. When time recommenced with Ms C after quite a gap, once again only very initial concern was expressed by X.
112. It is clear that the mother seeks to foment criticism by both her children of the father. I do not accept that the visit to FMC on 6 October 2015 was as innocent as she has sought to portray it. I think that the remarks made by X were coached by the mother on that occasion. It is clear that the mother also coached both A and X prior to the interviews with Ms S.
113. In the end, my conclusions about the central issue in the case can be expressed quite shortly. The father has behaved extremely badly to the mother during the currency of their relationship. His behaviour was controlling throughout and involved some measure of family violence within the extended meaning in the Family Law Act 1975 (Cth) (“the Act”) at least from 2012 onwards. One aspect of the entire history that the father’s case wholly fails to explain is why it was that the mother moved out to a refuge from what was otherwise a secure, and, on his case, happy home.
114. Notwithstanding his past misconduct, however, the father has been assessed by Dr P as posing no risk to X. The interaction between X and her father, both with Ms G and Ms C, has been unconcerning.
115. On the other hand, it is clear that the mother retains a genuine and ongoing fear of the father, albeit that her tendency to exaggeration and hyperbole probably causes her to overstate this. Furthermore, she significantly overstates the risks that she perceives with the father. She is not a person given to understatement or qualification. However genuine her fears of the father are, they are not, in my view, made out to anything like the degree she has expressed.