**FAMILY LAW** - PARENTING - father unacceptable risk - mental health issues- family violence by the father - no insight - no acceptance of responsibility - impact upon primary parent - no time
Source
Original judgment source is linked above.
Catchwords
**FAMILY LAW** - PARENTING - father unacceptable risk - mental health issues- family violence by the father - no insight - no acceptance of responsibility - impact upon primary parent - no time
Judgment (2 paragraphs)
[1]
For the reasons that follow the Court has accepted the mother's evidence and mother's submissions and finds it is in the best interests of the children that the children spend no time with the father.
The Child Impact Report dated 23 March 2022 marked Exhibit E recommended further assessment of the family violence and child abuse, and if there is not an unacceptable risk rebuilding the children's relationship with the father initially with supervised time. Having engaged in the assessment of the family violence which has occurred in the reasons below the Court finds that there is an unacceptable risk to both the children and the mother in rebuilding the father's relationship with the children, the father spending supervised time with the children or the father spending time with the children.
The Family Report dated 3 October 2023, marked Exhibit B identified that the mother was seeking no time for the children with the father and included recommendations as to family therapy, supervised then daytime and alternate weekend time. The report at [61] identified the father had suffered depression and anxiety and at [101] that a psychologist Mr HH opined the father has significant depression and is likely to require ongoing therapeutic care. That report also recommended in paragraphs [122] and [141] if there was a basis to the allegations about abusive behaviour counselling with a therapist by the father to address the following objectives:
To take responsibility for his abuse and coercive control of the mother.
To take responsibility for his abusive behaviours towards the child, [X].
To develop insight into the impact of his abuse and coercive control on the mother and child [X], their psychological well-being, and the co-parenting relationship with the mother.
To develop non-abusive emotional regulation, anger management and parenting skills.
The Court finds that there is a compelling evidentiary basis to the allegations about abusive and coercive behaviour by the father. None of those objectives, repeated twice in the Family Report dated 3 October 2023, were properly addressed by the father, and the evidence did not support a finding favourable to the father as to taking responsibility of the kind referred to, developing insight or developing parenting skills.
Paragraph [123] of Exhibit B recommends family therapy if there is no basis as to the allegations about abusive behaviours. The denial of the behaviour by the father was identified as a significant risk factor for the children. The risks children face when a parent is removed from the emotional landscape and impact on overall psychological development, identity formation and one's place in the world were addressed at paragraph [120]. This included the risk that a child will either idealise or demonise, as well as a risk of internalising the maladaptive belief about the absent parent as a reflection of themselves increasing risk of the child developing psycho-emotional and relationship issues in the future and that these risks may be heightened because of the children's cultural values regarding the importance of a two parent family.
The Court is reasonably satisfied to the requisite standard of proof, taking into account the gravity of the matters alleged and finds that the incidents of family violence alleged by the mother as described in paragraphs [11], [34], [50], [51] and [112] of Exhibit B to her and the elder child occurred. Those incidents are also supported by the mother's affidavit evidence, her oral evidence and her credibility which the Court accepts as a witness of truth. In relation to the assault on the mother 21 May 2020, referred to in paragraphs [11] and [34] is also supported by the report by Dr KK attached to the mother's affidavit that identifies the mother was very scared, anxious, suffering from diffuse body ache, including back, neck and head with the examination revealing bruising to her left hand, her right face on the upper and middle back and at the time she had a cast on from a surgical site on her right hand. The assault on 21 May 2020 upon the older child at [50] is supported by the conviction and the photographic evidence. The Court accepts the mother's evidence as to the father screaming, shaking and dragging the elder child when angry and frustrated in [50] and restraining the elder child in a high chair for extended periods in [51]. The mother's affidavit evidence also supports the coercive control and abuse by the father summarised in [112] of physical assaults, locking the mother and children in the home, verbal abuse and denigration, threats to harm the mother and her family, public shame and humiliation, financial abuse, monitoring and restricting social movements, harassment and stalking.
As a result of the evidence as to the elder child laughing at the time of the alleged sexual assault, absence of conviction and given the gravity of the matter, the Court is not satisfied that the father engaged in any indecent assault or sexual assault of the elder child. The evidence concerning the daughter's personal allegations against the father, which includes the hearing transcript of the trial in Exhibit C, did not result in any conviction, and these allegations also not proved.
The Court finds that on 27 November 2024 the father attended the elder child's school, without notice to the mother, at pick up time. The father admitted that he knew how the mother was going to behave and the history they had before. The mother arrived to pick up the elder child with the younger child in the back seat. The Court accepts the mother's evidence that the father parked in front of her, got out of the car, approached her car, took out his mobile to record the mother, made a threatening gesture to the mother, failed to get back into his car, the police arrived, as well as members of the mother's family and the father did not depart before or on arrival of the police.
The father screamed at his elder son as the boy left his school with his uncle and frightened the elder child in front of teachers and others. The mother had a panic attack, an ambulance was called and the mother was taken by ambulance to M Hospital. The Court accepts the mother's evidence that after this incident she is in constant fear of the father following her or the children and continues to have panic attacks at the thought of the children being required to spend time with the father. The impact of the incident on 27 November 2024 upon the elder child was a fear of the father, a regression of behaviour, nightmares, co-sleeping and a change of school. The Court finds the father caused that impact. The Court rejects the submission by the father that the incident lasted seconds. The incident commenced according to the father with his arrival at 2.15pm (T226.10), with the children due to come out at 3:00pm. The Court prefers the mother's evidence in paragraph [198] in her affidavit that she was parked first, and that the farther parked in front of her after she had arrived. The Court finds the mother telephoned the brother at 2:45pm (T70.25). The Court accepts the mother's evidence that X did not come out to the pickup line due to the father's arrival and that the police arrived with the father continuing to wait on the pavement for the younger child to leave. The Court finds that the police spoke to the mother and at 3:05pm the mothers' brother, Mr C, arrived with the grandmother. The police stayed for approximately half an hour and while there father was still there on the pavement, the brother went to collect X at about 3:20pm. The Court finds that the father screamed at X whilst only about 3 metres away, and X then sat in the car until the ambulance arrived. The Court finds that the incident took place over more than an hour with the elder child being initially held in the school for about 25 minutes before the encounter with his father, with police present and the elder child thereafter remained in the car until the ambulance had taken his mother away, which the Court finds involved a further 10 to 15 minutes before the father got in his car and left.
The Court finds the conduct of the father on 27 November 2024 to be recent family violence by the father, intended to intimidate and impact the mother and that the father's conduct emotionally and psychologically damaged his elder child, causing the child to regress from the positive progress he had made identified in Exhibit B and to be frightened of his father. The Court accepts that the mother's fear of the father, which it finds to be logical, rational and in all the circumstances reasonable has contributed, unintentionally, to the elder child's fear and current demonising of the father. The Court rejects the submission that the mother has undermined the relationship of the children with the father, or that the mother has denigrated the father or coached the children or that the mother has concocted or fabricated her evidence. The Court rejects the submission that the maternal family have denigrated the father.
In summary the Court finds that the mother, as primary carer, will be unable to parent the children if other than an no time order is made and that it is not safe to do so for the making of orders for supervised time. The Court finds that there was physical family violence by the father to his first wife in respect of which he was convicted of two counts of assault in mid-2015, which the father continues to deny and of which the mother became aware after marrying the father. The Court finds that there has been physical violence by the father to both the mother and the elder child and in particular on 21 May 2020, which the father continues to deny. The Court finds the assault on that day of the mother was serious and caused significant bruising and pain to the mother and left her very scared of the father.
The Court finds that there were two breaches of the ADVO's by the father put in place to protect the mother and the children. The Court does not accept the father's allegations of family violence by the mother. The father was an unsatisfactory witness and his evidence was not credible. The denials of assaults of which he was convicted leads the Court to conclude that he was not a truthful witness. The father repeatedly engaged in unresponsive answers seeking to advocate his case. The father's willingness to recharacterize the incident that occurred on 27 November 2024 as one in which he remained in the car and left immediately, was false evidence. That evidence was contradicted by other evidence of the father, and the two photographs with the father outside his car. The Court has also taken into account the endeavour by the father to suggest that the mother slapped the elder child on 21 May 2020 when it is apparent from his own evidence in the trial that the child was not distressed when he came downstairs with the mother. Not only does that support the conviction that was made of this assault, it also supports the Court finding that the father is willing to lie. The Court finds the father's continued denials of assault, including where convicted, are false and that the father's attempt to blame the mother and accuse her of lying have added to the mother's fear.
The Court accepts the mother's evidence as to the father saying 19 April 2020 "you will pay the price big time and you will live to regret leaving me". The Court accepts the mother's evidence as to the circumstances in which she returned being out of fear and based on promises made by the father recorded in the document dated 4 May 2020 which included no longer verbally insult me, ask me for money, no longer be rough with your kids X and B, don't yell at me and the kids and in which the father signed saying "it won't happen again". The Court finds the "again" by the father is an admission of the unacceptable behaviour of the father identified in the document. The Court does not accept that the omission of the physical violence incident in the document undermines the credibility of the mother.
The Court accepts the mother's affidavit evidence as to the making of threats through others by the father at [194]-[197] and finds that the father engaged his friend Mr E to convey threats to the mother and her family in May/June 2020 and finds Mr E to be an untruthful witness. The witness gave inconsistent evidence as to whether he made threats to the family over the telephone and then gave evidence that clearly conveyed a threat. The witness then exercised his right to refuse to answer further questions on those threats on the grounds of self-incrimination, and the Court declined to issue a certificate. The Court finds, in all the circumstances, that there is an evidentiary, logical, rational and reasonable basis for the mother's fear of the father and her fear of harm to herself or the children if the father has contact with them.
Aware of the caution that must be exercised, in removing a parent, the Court finds that there are no other alternative orders than no time that can be made because it is not safe to do so for the primary carer and it is not safe to do so for the children. Long term supervised time is not feasible and not in the best interests of the children and is more likely to cause more severe emotional and psychological harm to the children than no time with the father and was not supposed by the family consultant.
Further, even if the Court were to order supervised time, the Court finds that the mother would not be able to cope as the primary carer and that this would cause greater harm to the children than no time with the father. Further, taking into account the attempt by the father to recruit the elder child and collude with his negative view of the mother referred to at [114] of Exhibit B, the Court finds that even during supervised time there is an unacceptable risk of the father denigrating the mother and undermining the relationship between the children and the primary carer, which would be likely to cause more severe emotional and psychological harm than no time with the father.
This is not a case where the mother is unreasonably unsupportive of a relationship between the children and the father, but one where the primary carer simply cannot perform her primary parenting role if orders other than no time were made because of her genuine and reasonable fear of the father. Prior to the assault of the mother and elder child on 21 May 2020, the mother has recognised the importance of both the mother and the father for the children in the document dated 4 May 2020, Annexure C to the mother's affidavit. The assaults on 21 May 2020 by the father on the mother and child have further ignited the mothers fear of the father which was already existing at the time of the signing of the document dated 4 May which was described as a third shot for the kids. The denials by the father of the incidents and his conduct in reaching AVO's and bail terms have the Court finds entrenched that fear in the mother. The Court accepts the mother evidence as to why her belief had changed after 4 May 2020 where she said "After everything I've been through and the fear I've lived with myself and my kids I now believe it's in the best interest of the kids that the father is not in the picture, and as long as they're safe, and that will make them healthy kids." The catastrophic outcome in which the mother had a panic attack and could not parent the children on 27 November 2024 which the Court finds was genuine and not exaggerated. The mother's evidence supports the conclusion that the mother cannot cope as primary career if the children have time with the father..
The Court does not accept that therapy orders can overcome the entrenched fear of the mother that has existed since separation on 21 May 2020. The Court has taken into account that the mother engaged in counselling with a psychologist in early 2020 and thereafter continued to attend counselling with Victim Services that continued up to October 2023. The Court finds that fear of the mother and inability to cope will continue in the short term, the medium term and in the long term. The duration of the period of the fear of the mother to date supports that finding as does her evidence.
The unacceptable risk of harm to the children from losing their primary carer is, in this case, a greater risk of harm than that from the absence of a relationship with the father. The degree of that risk if other than no time orders were made the Court finds is highly likely. The nature of the harm is the inability of the primary carer to continue her role in meeting the children's developmental, psychological and emotional needs.
The Court finds that the history of family violence being two assaults on which the father was convicted in 2015 and which the Court accepts occurred in the father's previous marriage, supports the observation by the family consultant that the father has long-term, chronic issues with abusive behaviour and coercive control and the Court so finds. The Court finds that the risk of harm to the children from the father denigrating the mother and undermining her relationship with the children is likely to harm the children's sense of security and mental health because the father's behaviour would undermine the children's most safe and consistent source of stability being the mother. This was supported by the family consultant.
This undermining by the father of the mother's relationship with the children is an unacceptable risk of psychological and emotional harm to the children that in this case outweighs the harm from excluding the father as a parent. This unacceptable risk of harm by the father to the children is, the Court finds, likely to continue in the short, medium and long term. The father's history of family violence, ongoing mental health issues and the substantial period over which the father has engaged in family violence supports this finding, as does the father's lack of acceptance of responsibility, insight and want of parenting skills. The cultural stigma in not having two parents meaningfully involved in the children's world is not a form of harm that outweighs the likely risk harm to the children arising from inability of the mother as primary carer to carry out her parenting role if other than no time orders were made. The court does not accept the submission that the cultural background of the children weights the balancing exercise of unacceptable risk in favour of the father. The court has taken into account the children's beneficial and constructive relationship with the mother, brothers and father.
The risk of harm identified from no relationship with the father in the family report referred to above as emotional harm, impact on identity, risk of demonising or idolising and maladaptive belief do not outweigh the risk and emotional harm the children are likely to suffer if their mother is unable to continue to perform her primary carer role. The demonising of the father that has already occurred with the elder child, due to the father's conduct on 27 November 2024, does not alter the greater unacceptable risk of harm if the mother cannot perform her primary carer role. The emotional and psychological harm to the children from loss of their primary carer outweighs the risk of harm from removal of the father and absence of a relationship by the father with the children.
The Court has also weighed that this is a case where the children have no existing relationship with the father and that this also impacts in the assessment of the risks and the finding of removal of the father from the children being the lesser risk of emotional and psychological harm than that likely to flow from the unacceptable risk of loss of their primary carer.
As identified above, at the close of submissions on 10 July 2025, the mother's lawyers withdrew, and the mother, put an oral submission that she could not cope with a time arrangement and, if such was ordered, the children would have to live with the father. The Court does not accept that this submission by the mother undermines her veracity, genuineness or reasonableness as to her fears and inability to cope if the father were to spend time with the children. The Court finds the alternate submission is consistent with the mother's evidence of an inability to parent if there were time orders made in favour of the father.
The Court also finds that the unwillingness by the mother to support a relationship with the father in the present case is reasonable, logical and rational fear of the father and is a fixed state of the mother that is likely to be long term. The Court finds that fear was caused by the family violence by the father to the mother and elder child as found above. The Court does not accept that therapy will overcome the mother's fear in the long term. The Court does not accept that the mother's strong family ties mean that the mother will be able to cope in her primary parenting role and overcome her fear of the father if other than no time orders were made. Nor given the absence of a relationship with the father is this a case where identity orders would be appropriate. Identity orders would, the Court finds, engage the same unacceptable risk to both the primary carer and the children. Identity orders would, the Court finds, be likely to lead to the same catastrophic outcome being the inability of the mother to perform her role as primary carer and also creates the same unacceptable risk of the father undermining and destroying the relationship of the children with the mother as primary carer. In magnitude these risks have a high likelihood of developmental, emotional and psychological harm to the children in losing their primary carer outweighs the risk of harm to the children in spending no time with the father.
The Court accepts the submissions advanced by Ms Clark that this is a case where the evidence establishes a pattern of behaviour by the father of serious family violence in respect of which the father has maintained sweeping denials of any wrongdoing, has shown no insight in relation to his behaviour of physical family violence involving his former partner, the mother and his elder son. The Court accepts the submissions of Ms Clark that there is a serious issue in respect of the mental health of the father which is not addressed by any satisfactory evidence which the Court finds heightens risk of physical or emotional harm to the children if they were spending time with father, even if supervised.
The Court does not accept the submissions advanced by the ICL and the father that there would be no real risk to the children seen the father in certain circumstances of supervision. The conduct of the father in attempting to recruit the elder child to undermine and denigrate the mother reflects behaviour by the father that the Court finds will continue if the father is given the opportunity to do so. So called close supervision of the father, taking into account his determination to destroy the primary relationship which the Court finds he still has with his ability to speak in Language H, is not the Court finds, able to overcome the unacceptable risk presented by the father. Micromanaging supervised time is not feasible and there would inevitably be opportunities for the father to manipulate the children and to undermine the relationship with the mother. For example, the mother identified taking the children to the toilet. The mother's fear of the manipulation of the children and denigration of her, in this case, even if there were supervision, are logical, rational and reasonable.
Court orders cannot in this case overcome that unacceptable risk to the mother and the children even if the time were supervised. The Court finds that the father is likely to ignore orders of the Court and denigrate the mother to the children and try to undermine and destroy their relationship with their primary carer if given the opportunity to spend time, whether or not supervised with the children. This means that supervised time presents an unacceptable risk to the mother and children in this case.
The Court accepts Ms Clark's submission that the mother will not be able to perform the primary role as caretaker if the Court ordered supervised time. The catastrophic consequences of the father's unforeshadowed attendance at the elder child's then school corroborates the mother's incapacity to perform her parental primary parental role if there is engagement by the children with father. The Court finds that the panic attack by the mother was genuine and real and rejects the submission that it was exaggerated. The panic attack by the mother is supported by the medical admission evidence. The Court does not accept that the mother's reaction was staged or other than a real and genuine response from the continuing deep seated fear of the father. The Court finds this fear was caused by the father's family violence towards mother and the children
The Court does not accept the characterisation of the individual incidents of violence alleged by the mother, which the Court has found occurred, can properly characterised as insignificant or isolated or confined to the end of the relationship. Properly understood in the context of the history of family violence to which the mother was exposed the incidents are consistent with the with a pattern of family violence by the father, that reflects long-term chronic issues with abusive behaviour and coercive control by the father, that has instilled a genuine and continuing fear by the mother of the father.
According accepts the mother submission that if the father were to spend time with the children there is a loss of safety for the children because it is highly likely that the mother would be unable to perform her primary caregiving role.
The Court does not accept the submissions advanced that the mother's alternate submission undermines the mother's genuineness of fear for her children spending time with their father.
The Court rejects the contention that the alternate submission by the mother portrays a lack of sincerity or undermines her credit in respect of the fears for herself and her children in relation to the father, or that it undermines her inability to cope if there were time orders. The Court notes that the alternative position of the mother was not formulated in any order but was rather an oral submission.
The Court accepts that the ICL was correct in identifying the alternative position as being unusual but does not accept that it was a material change in the mother's case. The mother in her evidence maintained an inability to coparent and an inability to maintain the role of primary carer role if the father were to spend time with the children. The alternative position advanced by the mother is one which the Court finds supports the finding open on the evidence of the mother's inability to perform the primary parenting role if the father were to spend time with the children supervised, or otherwise the Court accepts the ICL's submission that it is a case where the Court must balance the competing harms to the children if they no time order is made. The Court finds the balance weighs in favour of no time with the father.
Both the father's counsel and the ICL identified the family consultant referred to the risk of demonising and submitted that demonising has occurred and manifested in the older child. As identified above that demonising is, however, the Court finds, caused by the conduct of the father and that emotional and psychological harm does not outweigh the unacceptable risk of harm to the children from the loss of the primary carer. It was submitted that a no time order has a continuing risk of emotional and psychological harm to the children however the Court finds that risk is outweighed by the unacceptable risk of harm to the children from the unacceptable risk of the loss of the primary carer.
The Court accepts that developmental, emotional and psychological harm includes not just demonising father but also a risk in relation to the self-identity of the children, their self-worth and sense of abandonment. The Court has accepted that the demonising of the father has already occurred for the elder child and is arguably a maladaptive belief as to his father. The Court accepts that the younger child has a risk of such harm. The Court does not accept that this emotional and psychological harm outweighs the gravity of the unacceptable risk of developmental, psychological and emotional harm to the children if the mother as the primary carer is unable to cope with the children spending time father.
The Court accepts the adverse reaction of the older child described by the mother as a result of the unannounced attendance of the father at his former school and that this has caused real and ongoing fear by the elder child.
The Court accepts the ICL's characterisation that this is a case where the children in reality do not know the father. The ICL submitted the Court must look closely at the source of the child's fear and the impact of maternal family influence. The Court finds the mother has a very real genuine and deep seated fear of the father. The Court finds that the mother has this deep seated fear because of the family violence committed by the father. The Court finds that it is the father who caused this deep seated fear and the Court finds that it is the father who caused the fear and maladapted demonising by the older child. The Court does not accept that the maternal family have contributed to the child's fear or demonising. The Court does not accept that the mother has intentionally contributed to the child's fear or demonising of the father. On close examination the father is the source of that fear and the Court rejects the submission that the maternal family have deliberately impacted on that fear or encouraged that fear.
The ICL submitted this was an appropriate case before the Court to find that there was a state of flux warranting the case being treated as appropriate for interim orders. The ICL identified that those interim orders could accommodate the therapy identified by the family consultant facilitate supervised time and the ascertaining of the reaction of the children throughout supervised time. An interim decision was supported by the father. The Court does not accept that this is a case where there is a state of flux that warrants now proceeding as if this were an interim hearing.
The Court does accept the ICL submissions that determining whether or not to continue the matter as a final hearing or as an interim hearing turns on the best interest of the children. In that regard this as a case that has been on foot for four years and an interim determination will inevitably give rise to further stress and risk of conflict for the children having to engage with another family consultant, potential therapy, having to potentially engage with supervised access and having continuing uncertainty in relation to her mother's capacity to continue her role as primary carer.
The elder child's current views do not support wanting a relationship and the state of affairs at the time of the family report in 2023 for the elder child has changed due to the conduct of the father. This matter had already been fixed for a final hearing that was vacated and re-fixed. There have been 4 days of final hearing evidence with cross examination and one day of submissions. The Court does not accept that it is in the best interests of the children for this case to now be treated as an interim hearing. The Court finds that the best interests of the children advanced by concluding and finalising these parenting proceedings. The Court also finds a continuation of interim proceedings in this matter has a greater likelihood given the history of family violence of further emotional and psychological harm to the children and to the mother.
The Court has taken into account that it is only in extreme cases where the Court should order no time and the high standard required in coming to that finding. Inherent in the submissions of advanced by the ICL is the recognition that the Court cannot be satisfied at this stage that it is safe for the children to spend time with the father. The ICL expressly acknowledged real concern in relation to the father's mental health and lack of current reliable evidence in that regard.
The ICL submitted that there was no risk of acceptable rest of the children spending supervised time with father. The submission is rejected given the history of family violence the Court does not accept that there is no risk to the children. As explained above the Court finds that there is a real and unacceptable risk to the children even if it was supervised time of emotional and psychological harm to the children by the father manipulating denigrating and undermining the relationship of the primary care of the children. Whilst the Court accepts during supervision it is possible for the supervisors, attuned to the risks in this case, to try and intervene during interactions between the father and the children, there remains an unacceptable risk of that intervention failing and the Court finds that the risk of serious developmental, emotional and psychological harm to the children in having that relationship with the mother undermined outweighs any benefit to the children from a relationship with the father. The Court further finds that supervised visits by the father with the children is highly likely to cause a catastrophic inability of the primary carer to parent children. This is supported by the outcome of the mother being unable to parent the children because her flashbacks and panic attack on 27 November 2024. The Court further finds that spending supervised time of the children is likely to cause real risk significant emotional and psychological harm to the mother. The Court finds the benefit of parental relationship with the father through supervised time in the present case with the children is one where it is not safe to do so.
The Court finds that turning the proceedings into an interim hearing so as to progress or re-build the relationship with the father is not in the best interests of the children because supervised time, in this case, presents an unacceptable risk to both the children and the mother.
Further, turning the final hearing into an interim hearing would expose the parties to the burden of further hearings, cross examination, potentially a fresh expert report, additional costs and undue delay of these already protracted proceedings. Nor given the history of the matter is the Court satisfied, if converted to an interim hearing, that the father would address his mental health issues or attend therapy given his conduct to date. Nor is the Court satisfied that the father would refrain from attempting to undermine and destroy the relationship of the children with their primary carer if interim supervised orders were made. For these court rejects the request to change this final hearing into an interim hearing as to do so is not in the best interests of the children.
Turning in more detail to the requirements of s60CC the Court must consider what arrangements would promote the safety of the child and each person who has care of the child, in this case being the mother. The Court must take into account "safety from being subjected to or exposed to family violence, abuse, neglect or other harm." The Court finds that the arrangement which would best promote the safety of the children and the mother is that the father have no time with the children.
The Court in this regard finds that the father presents an unacceptable risk to the children because of his continued denial of family violence that this Court has found occurred.
The Court finds that the incident alleged by the mother of the father hitting the child on 23 October 2019 where the child took an item off the table occurred. The court accepts the mother's evidence that she saw a visible mark on the elder child's left cheek and accepts the mother's evidence as to the father admitting slapping the child across the face. The court does not accept the father denials particularly in light of his evidence as said at T214.32, slapping the child is acceptable. The court also accepts the mother's evidence that the father slapped the elder child on 21 May 2020 leaving a similar red mark on the child's thigh. The Court finds that the father slapped the elder child in a sufficiently hard manner to leave a mark on his thigh. The Court finds the father pushed the mother backwards where she hit her head and sustained injuries on 21 May 2020, as identified in the medical report summarised in the evidence of the mother above.
The Court finds that the father's behaviour was a pattern of coercive control and abuse. The Court finds in addition to the physical assaults identified, it accepts the mother's evidence that he locked her in the home. The Court does not accept the propositions advanced in cross-examination that the mother had keys and was able to escape the home. The Court does not accept the cross-examination in relation to the observations of the father playing with the child's penis on one occasion undermines the mother's credit.
The Court has taken into account that English is not the mother's native language and that the mother was meaning to identify one occasion that had occurred and not that there was only one such occasion, and that the mother's evidence that there was more than one occasion is consistent with the mother's evidence that she gave at the criminal trial. The Court does not accept the submission that the difference between the police record and the mother's affidavit evidence as to the incident on 19 April 2020, Exhibit C page 207, undermines the mother's credibility. The mother explained which the Court accepts that she played down the incident so as not to get the father in trouble.
The Court finds that the father engaged in verbal abuse and denigration of the mother during the relationship. That verbal abuse and denigration continued after the relationship ended. It was reflected in the assertion made to the witness called by the father that what the mother was saying occurred was untrue and lies. The father maintained views of the mother telling lies in the course of giving evidence in this hearing. The Court finds that the father, given his lack of accountability and insight, is highly likely to continue to denigrate the mother if spending time with the children and that the father is likely to try to undermine or destroy the primary relationship of the children with the mother if spending time with the children.
The Court has found that this is a risk that is not removed by there being supervised visits. The Court accepts, given the inevitable inability to micro-supervise the father, that if given the opportunity of spending time with the children which is supervised, there is still a real risk of the father denigrating the mother and trying to undermine the mother's relationship with the children. The Court finds the degree of likelihood of that risk is high given the father's failure to address his mental health issues and given the father's failure to take responsibility for the family violence that he has perpetrated on the mother and the elder child and that the risk is heightened by the father's lack of insight and lack of parenting capacity. The Court finds notwithstanding the courses undertaken by the father, he lacks parenting capacity to meet the children's needs and is self-focused. The Court accepts the family consultant's evidence that the degree of risk is heightened by the willingness of the father, which the Court finds, not to tell the truth to the family consultant.
The skilful cross-examination by Mr Hegedus did not undo the obvious falsehoods told by the father to the family consultant, as the cross-examination focused only on one part of the falsity as to the possibility of a misunderstanding in relation to the assault on the elder child, whereas in fact the father not only failed to inform the family consultant that he had been convicted of assaulting the elder child, but asserted he had not engaged in any family violence when he knew he had been convicted of two offences in relation to his former partner.
The Court finds that the father did deliberately fail to disclose his past of family violence to the Court reporter. The Court finds that the denials by the father of the conduct alleged by the mother was also misleading the family consultant, and that this misleading conduct by the father further heightens the risk if spending time with the children. The Court finds that that risk is heightened by the attempts of the father to blame the mother and assert that the mother engaged in family violence.
Whilst there is no perfect victim, the Court does not accept that the mother engaged in incidents of kicking, hitting, or strangling the father. Given the lack of credibility of the father and his willingness to engage in mendacity the Court finds that these allegations by the father were false.
The Court finds that the allegation which the father instructed be put to the mother, that it was the mother who slapped the son on the day of separation, was also knowingly false by the father. The Court has taken into account in that regard the father's own evidence at the trial that the child was not distressed when he came downstairs with the mother. The Court has also taken into account the photographic evidence in relation to that physical assault by the father on his son on the day of separation, which reinforces that the child was hit with force by the father.
The Court also takes into account in relation to the heightening of the risk from the failure by the father to develop insight in relation to his family violence and abusive and coercive control heightens the risk of him denigrating the mother and trying to destroy the relationship of the children with their primary carer.
The Court finds that these heightened risk factors mean not only that there is a real likelihood of the risk of unacceptable harm to the children if spending time with the father, even if supervised, and the Court also finds that that unacceptable risk is likely to continue, not just in the short or medium term, but in the long term. In making that finding, the Court has taken into account time that has passed since the commencement of these proceedings and the father continuing to fail to take responsibility for his coercive, abusive, and physical violence to the mother and the elder son. The Court finds that the nature of this heightened risk, if the children were to spend supervised time with the father, is the likely destruction or attempted destruction of the primary carer relationship with the children, which would cause the children significant developmental, emotional and psychological harm.
The Court finds the unacceptable risk of developmental, emotional and psychological harm from undermining or destroying the primary careers relationship with the children outweighs the adverse impact of the harm identified in paragraph [120] of Exhibit B of a maladaptive belief, unhealthy perceptions, and future psycho-emotional and relationship issues, and the demonising of the father, which the Court accepts the elder child has already adopted. The Court also finds that permitting supervised time with the father would not promote the safety of the mother as the primary carer and that the mother, in this case, would not be able to cope with the father seeing the children, even if supervised.
The Court in this regard takes into account the catastrophic incident that occurred on 27 November 2024 where the father turned up at the elder child's school. The Court does not accept the father's assertions that he did not know what would happen. The father's own evidence was also inconsistent with that proposition. The father's evidence that he stayed in the car and left immediately is also inconsistent with his own evidence. The Court finds that the father knew that the mother was terrified of him. The Court finds the father knew why the mother was terrified of him.
The Court finds that the father knew he had engaged physical and abusive conduct to the mother that constituted family violence. The father knew that he engaged in family violence that was not isolated or one-off. The father knew that the mother was extremely scared of him because of the family violence he had perpetrated on her and the elder child during the relationship and his threats that he had made to the mother. The Court finds that the father did engage in threatening behaviour to the mother by getting out of his car, and the Court accepts the mother's evidence that he approached the mother's car and made a gesture that frightened the mother. The Court finds that the father made that gesture deliberately.
The father's continued determination to remain at the child's school after the police arrived supports that this was a deliberate intimidation by the father of the mother in attending the child's school. The Court also finds that the father's conduct in attending the school was planned and must have been known by the father to be likely to intimidate and frighten the mother. The Court has accepted the mother's evidence as to threats that the father had made to the mother as alleged in the mother's evidence. The Court finds that the father's denial of those threats is untrue.
Whilst the Court accepts there may be circumstances in which the events of kind that occurred on 27 November 2024, in insolation, might be characterised as an overreaction by the mother, that is not a fair or correct conclusion to draw given the actual duration and conduct of the father on that occasion and given the history of family violence identified in the mother's evidence which the Court accepts. The Court finds that the catastrophic outcome because of the father attending at the child's school was the flashbacks and panic attacks by the mother whereby the mother was unable to parent her children and had to be taken to hospital. The Court also finds that the father's attendance at the school did involve him screaming at the elder child, and that the elder child remembers the father screaming at him. The Court finds that the father's conduct in attending the elder child's school and screaming at him reflects the very opposite of child-focused parenting and reflects a serious lack of parenting skills by the father. More importantly, it is of a most recent occurrence given that it was less than 10 months ago.
Further, the impact on the mother from that incident is entirely consistent with the mother's affidavit evidence that she is scared of the father and would not cope if the children were spending time with the father. The Court finds that the mother's fears in the present case are reasonable, logical and rational given the past family violence perpetrated by the father on the mother, which the Court has accepted.
The Court finds that the mother's panic attack on 27 November is a genuine reflection of the mother's inability to cope as the primary carer if the father was spending time, including supervised time, with the children. The Court accepts the family consultant's evidence as to the importance of the mother's primary caregiving role. The Court accepts the family consultant describing the mother's support for the children as fairly paramount. The Court finds that the mother would be unable to co-parent if the children were spending supervised time with the father and that the panic attack and inability to cope as a parent on 27 November 2024 further supports this finding.
The Court also finds that the likelihood of the mother being unable to co-parent, to perform her primary caretaker role, would expose the two boys to a greater risk of harm than the harm identified in paragraph [120] of the family report if there was no time with the father. The Court finds that the likelihood of that unacceptable risk of harm to the mother manifesting itself if the father were to spend time or even supervised time with the children is high.
The Court finds that risk, given the history of the matter to which the Court has already referred, is not just in the short term but also in the medium and long term. The Court finds that the consequence of that unacceptable risk to the mother if the father were spending time or supervised time with the children is of a catastrophic kind in that the mother will be unable to perform her role as primary caretaker. The Court finds that the mother is likely to have panic attacks as identified occurred on 27 November 2024 and that those panic attacks are likely to leave the mother unable to perform her role as primary caregiver.
The Court also takes into account in making this finding the submissions advanced by the mother as to what was an extreme alternative submission that if the Court were to order supervised time, she would not be able to cope and that the children should have their primacy care given to the father.
No such proposition was supported by the ICL. The Court finds that the advancing of that alternative submission by the mother is entirely consistent with her sincere and genuine fear and her inability to cope. If time were to be ordered in this case the Court finds that the mother's inability to support the relationship between the children and the father in the present case is logically, rationally and reasonably based on her fear of the husband created by his family violence to which she was subjected both during the marriage, thereafter and by the continuing false assertions of denial by the father.
The Court finds that the mother's inability to cope, given the period of time that has already passed since separation, is not one just for the short term or the medium term but will continue in the long term. The Court finds that that catastrophic risk of being unable to perform the primary caregiver role for the children outweighs the demonising and maladaptive and internalising psycho-emotional and relationship issue harms identified by the family consultant if the children spend no time with the father.
The Court finds that long-term supervision would not promote the safety of the children or the mother. The Court accepts the family consultant's evidence that long-term supervision prevents a greater risk of psychological and emotional harm to the children and that that risk outweighs the benefit of a relationship with the father. The Court finds that long-term supervision is not time that the mother would be able to cope with. The Court finds that long-term supervision would not promote the safety of the mother and presents the same unacceptable risk of the mother being unable to perform her role as primary caregiver. The Court finds that long-term supervision presents a risk to the mother in terms of being unable to perform her primary role, that in this case is high, taking into account the panic attack to which the Court has referred on 27 November 2024.
Further, the Court finds that the magnitude of that risk will continue not just in the short term or medium term, but in the long term, and takes into account in that regard the duration over which the father has maintained his denial of family violence to the mother and the elder child. The Court finds that the unacceptable risk if there were long-term supervision orders to the mother is one of a catastrophic inability to perform her role as primary caregiver. For these reasons, the Court does not accept that long-term supervision is an arrangement that would promote the safety of the children or the mother.
The Court also finds that this is not a case where the mother has adopted an unsupportive position in respect of the children's relationship with the father that could be characterised as unreasonable, illogical or irrational given the family violence the Court has identified that has been perpetrated by the father. Given the acceptance of the mother's evidence, the Court does not accept that the family violence to which the mother has been exposed can properly be identified as insignificant, isolated or of a trivial kind or limited to separation process.
The Court recognises the caution that must be exercised in finding that there should be no time for one parent and is satisfied that the arrangement that would promote the safety of the children and the mother is for the father to have no time with the same. The Court finds that this is not a case where there should be any identity contact. The Court accepts the mother's evidence as to the difficulties she would have with identity contact. The Court accepts that the mother would have the same potential catastrophic outcome if required to have identity contact between the father and the children. It finds that unacceptable risk to the safety of the mother outweighs the benefit of a relationship with the father and outweighs the potential harm identified in paragraph [120] of Exhibit B.
In relation to views of the child, the Court takes into account that the elder child expressed in 2023 a reluctance to have a relationship with the father if he continued to make bad choices. It is apparent, from the father's continued failure to take responsibility for his abusive and coercive control, his failure to take responsibility for his abusive behaviours towards the mother, towards his eldest son, his failure to develop insight and his lack of parenting skills and his failure to properly address his mental health issues, that the father is likely to continue to make bad choices.
The attendance by the father on 27 November 2024 is further evidence of the father's bad choices which the Court has found were deliberate and with knowledge that it was likely to cause significant distress to the mother, given the father's knowledge of his past family violence to the mother. The Court has also taken into account the more recent views expressed by the elder child to the psychologist identified in the report dated 22 May 2025. Whilst the Court does take into account the relatively young age of the elder child in that psychologist's report and his expressed views that he was not interested in meeting his father, that his father was not part of his family, and he does not want him back.
The elder son has a negative memory of his father screaming at him and does not want to talk to his father, and the Court has taken into account the psychologist's view of a clear rejection by the elder child of his paternal relationship and that his strong attachment to his mother appears to be a protective factor.
The Court has also taken into account the report dated 24 May 2025 by Dr KK, that X has a history of significant anxiety symptoms and has been clinically diagnosed as generalised anxiety disorder and that he exudes intense fear and distress in relation to his biological father. The doctor referred to the assessment of any forced or unsupervised contact with the child's father, at this time, being likely to intensify his psychological distress and could significantly compromise his emotional stability. The Court accepts that evidence.
The Court has taken into account, in that regard, that the family consultant identified the mother as being child-focused, protective and loving parent and that her primary consideration was her and the children's safety. The Court has taken into account that the father engaged in denigrating and verbally abusing and manipulating the mother and recruited the elder son to denigrate her by telling the elder son to say that she was not a good mother and not a good wife. The Court finds in this regard, that the elder child has a fragility in relation to his capacity to be manipulated by the father.
The Court does not accept that the child's views that have been expressed are a manipulation perpetrated by the mother or the maternal family. The Court finds that the elder child's views support an arrangement of no time. The Court accepts that the younger child has no relationship with the father and that his perception and views is likely to be informed by that of his brother and mother. The Court does not accept that the views of the elder child support the Court making orders for long-term supervised time or supervised time progressing to unsupervised time.
In relation to the developmental, psychological, emotional and cultural needs of the children, the Court finds that the needs of the elder child are ones where the mother is taking appropriate steps to address the elder child's anxiety, and that the mother and her broader family, with males, is in a good position to advance the developmental, psychological, emotional and cultural needs of the child, which was consistent with the observations in paragraph [59] of Exhibit B. Further, the Court has taken into account that the mother has, in fact, engaged in counselling which she has continued with victim services.
The Court finds that the father has not properly addressed his mental health and lacks the parenting capacity to properly meet the developmental, psychological, emotional and cultural needs of the children. The Court finds that the father is likely to try and meet his own needs if he were to have supervised time with the children to the detriment of the children's needs. The Court finds that the father lacks the insight and parenting skills to meet the developmental, psychological, emotional, and cultural needs of both children.
In relation to s60CC(2)(d), the Court finds the mother does have the capacity to meet the primary caretaking role for the children. The steps taken by the mother in relation to the eldest child's language development support that finding, and the family consultant that the family consultant described the mother as an attuned caregiver with an insightful understanding of the children's needs, which the Court accepts.
The Court finds that the mother has the capacity to meet the developmental, psychological, emotional, and cultural needs of the children. The Court recognises that the cultural background of the children is one of a patriarchal society, as referred to in the family consultant's evidence, and accepts the family consultant's evidence that the relationship with the males in the mother's household will diminish the risk of harm to the children from spending no time with the father in relation to their development, psychological, emotional, and cultural needs. For the reasons the Court has already given, the Court finds the mother has the capacity to perform the role of the primary caregiver for the children and to provide for the children's development, psychological, emotional, and cultural needs.
The Court finds that the father lacks capacity to have parental responsibility for the children and lacks the capacity to provide for the children's developmental, psychological, emotional, and cultural needs. In making this finding, the Court has taken into account the father's persistent denial of his family violence, his lack of accountability, his lack of insight, and what the Court finds, notwithstanding the courses he has undertaken, lack of parenting skills and inability to adopt a child-focused input. The Court has also taken into account, in finding that the father is likely to focus on his own needs, the father's conduct in relation to the taking of proceedings in 2025 to try and compel time with his elder daughter, aged 12, after she has given evidence against him in criminal proceedings, despite the obvious emotional and psychological harm that would expose the daughter to, which was the subject of evidence that the Court accepts from the family consultant.
The Court does not accept that the father's discontinuance of an interim application on the last day of the hearing reflects an insight by the father as to the impact of his conduct on his daughter and that reflects continued failure by the father to have focus on meeting the children's needs, rather than his own. In relation to subsection (2)(e), the Court has weighed the benefit of the children being able to have a relationship with the father and finds that it is not safe to do so. The Court makes that finding based on the developmental, emotional and psychological harm that the children would suffer from the father engaging in conduct to denigrate and/or destroy the primary caregiver's relationship with the children. The Court has made findings as to the likelihood of that risk being high, that the consequences of the risk manifesting itself are catastrophic in terms of the mother's capacity to perform her primary role as caregiver, and that that risk is not one just in the short-term or medium-term, but continues in the long-term.
Taking into account the lack of responsibility accepted by the father for his family violence and his lack of insight and lack of parenting skills, the Court finds that it is not safe to do so in terms of the children having the benefit of a relationship with the father.
In relation to s60CC(2)(f), the Court has taken into account the generalised anxiety disorder of the older child. The Court has considered the report dated 24 May 2025 by Dr KK and the views of the psychologist in the report dated 22 May 2025 and the Court accepts that the mother is taking steps to address that anxiety, but finds that orders for the elder child to spend time with the father has a greater risk of developmental psychological and emotional harm to that child. Whilst the Court accepts treatment that the child is undertaking may diminish that anxiety as may be his advancing age, the Court finds that this is a case where that child is particularly vulnerable to the father denigrating or trying to destroy the relationship with the mother.
The Court also takes into account, under s60CC(2)(f), that the father has failed to take proper steps to address his mental health in circumstances where it was up in lights from the family report dated 3 April 2023 that his mental health was an issue, and where there had been an earlier final hearing that was vacated on 13 November 2024. It is apparent that the reports prepared by the psychologist, Mr HH, dated 10 October 2023, repeated the father's false victim perspective, which the Court finds the father knew was false, of being depressed because of the treatment he had suffered at the hands of his ex-wives with the associated Court and legal battles.
In relation to the report of 12 September, characterising the father as having been falsely accused of serious crime, the Court does not find that there was a false accusation. The Court does accept that the father was found not guilty of the serious sexual assault allegations, but does not accept that the father was acquitted of all criminal charges. The Court finds the father was correctly convicted of the assaulting of his ex-partner, correctly convicted of assaulting his son on 21 May 2020. The Court finds, notwithstanding the father being acquitted, that he, in fact, assaulted the mother, as alleged by the mother, on 21 May 2020, and that he, in fact, also assaulted his son, as alleged by the mother, in 2019.
The Court finds that the father's ongoing failure to seek proper mental health care is a further escalation of the unacceptable risk, which the Court finds adds to the unacceptable risk if he were to spend time with the children, or if he were to have supervised time with the children. In relation to s60CC(2A), the Court has made findings in relation to the family violence, abuse, and neglect, and abuse of the mother, and in relation to the elder child, as referred to above. The Court has taken into account the ADVOs obtained for the safety of the mother and the bail conditions that were obtained for the safety of the mother, and that the father was willing to breach both the ADVO and the bail conditions. The Court does not accept that the breaches of the ADVO or bail conditions were trivial or insignificant. The Court finds the breaches reflect a further escalation of the unacceptable risk that the father presents if there were other than no time orders. The Court accepts that the ADVO that was last in place expired that was for the protection of the mother and the children, and finds the father's conduct in deliberately attending the elder child's school on 27 November2024 was, in fact, a form of family violence by the father, in that he knew that it would cause significant distress and anxiety for the mother.
The Court finds that the father planned to attend school and did so deliberately, and failed to leave at the earliest opportunity, and was determined to wait until his son had emerged from the school, knowing the ongoing impact detrimental to the mother that his continued presence standing outside her car would have. As the Court has earlier identified, the Court accepts that the father made a gesture to the mother that was intimidating, and the Court rejects the father's evidence that he made no such gesture. The Court finds that the father's willingness to paint himself as having stayed in his car and leaving immediately is consistent with the father's willingness to not tell the truth in relation to the events that occurred on 27 November, and the Court accepts the mother's version of those events.
The Court finds that the risk that the father would not comply with Court orders not to denigrate the mother or undermine the relationship between the children and the mother is high even if the father were spending supervised time with the children. The developmental, emotional and psychological harm to the children of the father engaging in that conduct outweighs the risks associated with no relationship and no time with the father.
In summary the Court has found it is not safe for the children or the mother for the children to spend time with the father. Taking into account the whole of the circumstances this is a case where the Court finds it is not in the best interests of the children to spend time with the father, whether or not supervised. The Court is satisfied that this is a case, despite the caution that must be exercised where it is in the best interests of the children that there be no time with the father. The Court finds that it is in the best interests of the children to make the orders identified above.
[2]
I certify that the preceding five hundred and seventy-three (573) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.
Parties
Applicant/Plaintiff:
A
Respondent/Defendant:
A
Legislation Cited (4)
(Sentencing Procedure) Act 1999
Passports Act 2005
Law Act 1975
Circuit and Family Court of Australia (Family Law) Rules 2021