Taina & Markas [2025] FedCFamC1F 833 (26 November 2025)

(a) Approaching within 50 metres of the mother;

(b) Approaching within 50 metres of the child;

(c) Approaching within 100 metres of any school at which the child is attending from time to time, should the father come to learn which school the child is attending;

(d) Approaching within 100 metres of any residential property at which the mother and the child are residing from time to time, should the father come to learn the mother's residential address; and

(e) Communicating with the mother and, or, the child by any means, including but not limited to, telephone communication, social media, and SMS messaging.

1. For the purposes of s 68C of the Act, Order 5 is an order for the personal protection of the child and the mother.
2. Orders 4, 5, and 6 of the orders made on 20 November 2023 be discharged and the child's name be removed from the Family Law Watchlist and it is requested that the Australian Federal Police give effect to this order accordingly.
3. Pursuant to s 11 of the Australian Passports Act (2005) (Cth), the child be permitted to have an Australian Travel Document including but not limited to an Australian Passport and to give effect to this order, the mother be permitted to unilaterally complete, sign and lodge any application for issue or renewal of the child's Australian Travel Documents or any other documents required to allow the child to travel outside of the Commonwealth of Australia.
4. The mother be permitted to travel with the child outside the Commonwealth of Australia pursuant to s 65Y of the Act, without the need to obtain the consent of the father.
5. The father be authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales ("the Registrar"), to be registered as the father of the child on the child's birth certificate.
6. Pursuant to s 18 of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the father as the father of the child in the form specified in Order 10.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taina & Markas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are parenting proceedings under Part VII of the Family Law Act 1975 (Cth) ("the Act") between the Applicant mother, Ms Taina ("the mother"), and the Respondent father, Mr Markas ("the father"), in relation to their child, X, born in 2022 and now aged three years ("the child").

1. The child was born after his parents had separated. The relationship of the parties was short, commencing in 2019 and ending, on a final basis, in December 2021.
2. The father has spent no time with the child since his birth and does not have a relationship with him.
3. Proceedings were commenced by the mother on 3 April 2023 when she filed an Initiating Application.
4. Interim orders were made on 20 November 2023 providing for the child to live with the mother and for the mother to have sole parental responsibility for the child. No orders were made for the father to spend time with the child.
5. The Court Child Expert, Ms C ("the Family Report writer") prepared a comprehensive Family Report dated 19 June 2024 ("the Family Report"). The Family Report writer had previously prepared a Child Impact Report, dated 10 November 2023 ("the Child Impact Report").
6. The child has a number of health and developmental issues which the Family Report writer summarises as follows (at paragraph 10 of the Family Report):

[X] attends childcare five days per week and is well supported by his educators. He was born [prematurely which makes him prone to illness]. [X] has been diagnosed with global developmental delay due to delays in his gross motor and language skills. He has, asthma, an anaphylaxis reaction to [certain foods], a wheat allergy and is lactose intolerant. [X] has regular six-monthly appointments with a paediatrician, immunologist and dermatologist and is currently being investigated for a possible metabolic disorder. [Ms Taina] also raised concerns in relation to [X] meeting criteria for a diagnosis of autism spectrum disorder (ASD). He remains on a waitlist to access early intervention through [...] including occupational therapy and speech therapy.

1. The mother endorsed the above summary in her oral evidence but added that the child has had a more recent diagnosis related to a skin condition (managed by medication).
2. The mother also explained in her oral evidence that the child was diagnosed "two or three weeks ago" with global developmental delay, autism, that he continued to have muscular truncal weakness, and that his motor skills remained behind other children of his age.
3. The mother is an Aboriginal woman and a member of the E people. She is a carer, approved by the Department of Communities and Justice ("the DCJ"), and she provides care to children, with the support of another approved carer, Ms D. Ms D and her husband reside at the mother's home. The mother has re-partnered, and her partner lives with the mother in her home, though he was not a witness in the proceedings. The mother has a number of children in her household at this time, along with her five biological children, including the child the subject of these proceedings.
4. The father identifies as being Country F origin and Australian and is of Islamic faith. The father has re-partnered and is in a relationship with Ms G. The father and Ms G live together. Ms G was not a witness in the proceedings.
5. The mother and the child (and her other children) are protected by an Apprehended Domestic Violence Order ("ADVO") against the father, which was initially granted in December 2021 and made final in February 2023. The operation of that order has been extended to continue until February 2028. The child was subsequently added as a protected person (he was not born at the time when the initial order was made protecting the mother and her other children).
6. An ADVO was made against the mother for the father's protection in December 2022, which was in effect for two years from that date.
7. The mother's application for final parenting orders was listed for an undefended hearing, to occur on 22 January 2025, in circumstances where the father did not file documents and had not attended a Compliance and Readiness Hearing. The father filed responding documents shortly before the January date and the matter was adjourned to a final hearing on dates in March 2025.
8. The father obtained legal representation through the s 102NA Family Violence and Cross‑Examination of Parties Scheme.
9. On 4 March 2025, the matter was transferred to this Court. Having been listed for only two days (as a consequence of the procedural matters summarised previously), it became clear that, as a fully contested hearing, additional hearing time would be required.
10. The final hearing proceeded over five days: 4 March, 5 March, 15 May, 16 May, and with final submissions on 18 June 2025.

1. The mother relied upon the following documents:

(a) Amended Initiating Application filed 19 December 2024 (which minute of orders sought was further particularised in the mother's outline of case document filed 3 March 2025);

(b) Her affidavit filed 17 December 2024;

(c) An affidavit of Ms D filed 17 December 2024; and

(d) Notice of child abuse, family violence or risk filed 3 April 2023.

1. The father relied upon the following documents:

(a) Amended Response to Initiating Application filed 21 January 2025 (noting that the father amended his minute of orders sought, with his final minute of orders sought becoming Exhibit 1); and

(b) His affidavit filed 21 January 2025.

1. Each party relied upon the Family Report. The mother and the Independent Children's Lawyer ("the ICL") indicated that they sought to also rely upon the Child Impact Report.
2. A number of documents were admitted into evidence as exhibits. I have read and considered each of those documents, in addition to the outline of case documents filed on behalf of each party. The ICL's outline of case document was filed on 28 February 2025 and the mother's, on 3 March 2025. The father filed his outline of case document on 28 February 2025, which was again filed on 13 May 2025 but with what became Exhibit 1 attached, being his amended final minute of orders sought.
3. The ICL's final minute of orders sought became Exhibit 22.

1. The mother asserts that she (and members of her family) has experienced serious and repeated physical, emotional and psychological family violence from the father over the duration of their relationship and after separation, and that she and the child (and the wider maternal family) remain at risk of further family violence should orders be made for the father to spend time with the child. She asserts that he poses an unacceptable risk to her safety and the child's safety if she or the child were to have contact with the father. The mother maintains that such risk cannot be ameliorated.
2. Since commencing these proceedings in April of 2023, the mother has sought parenting orders which have the effect of the child living with her, and the child having no contact or communication with the father. That remains the mother's position. She also seeks orders for sole parental responsibility and sole decision-making for the child, various restraints, and orders allowing for the child to travel internationally.
3. The ICL was appointed on 21 July 2023. Before providing a final minute of orders sought (which became Exhibit 22), the ICL indicated that (at [15] of the ICL's outline of case document):

The ICL's preliminary position is in support of the recommendations contained in the Family Report. However, following the evidence, should the Court find that it is in the best interests of [X] to spend time with the Father, it is the ICL's view is that any time between the father and [X] would initially need to be subject to supervision. Without any period of supervised time to introduce [X] to the father, the ICL struggles to see how orders for regular ongoing time between the father and [X] can be supported on the evidence.

1. At that stage, the recommendations contained in the Family Report were as follows, inter alia:

1. That [Ms Taina] has sole parental responsibility for [X].

2. That [X] lives with [Ms Taina].

3. That [X] spend no time with [Mr Markas].

1. Exhibit 22 (which was provided on the last day of the final hearing) solidified the ICL's preliminary position, which document largely reflects the orders sought by the mother.
2. The father denied the allegations of family violence as contended by the mother and asserted that the mother had fabricated her reports about his conduct and that she is a liar who is acting with malice, to exclude him from the child's life. The father contended that the mother had engaged in family violence towards him (see paragraph 41 of the Family Report as set out below). The father alleged that the child was at risk of neglect in the mother's care, including risks from the children placed in the mother's care and risks associated with alleged drug and alcohol use.
3. In his Amended Response to Initiating Application filed on 21 January 2025, the father sought orders which can be summarised as follows:

(a) That the child live with the father (and implicitly, where there were no orders for such, spend no time or have any contact with the mother);

(b) That the father have sole parental responsibility and decision-making authority for the child;

(c) The modification of the AVO between the father and the mother;

(d) That the mother undergo a psychological and parenting capacity assessment;

(e) That the father be granted full access to the child's medical records and "that the allegations concerning [X's] health, including the claim that he suffers from [...] disease, be substantiated with credible medical evidence ..."; and

(f) That the child's name be changed from X to B Markas, making clear that "no hyphenated names such as "[Taina-Markas]" or "[Markas-Taina]", or any aliases, be attached to the name."

1. The father's affidavit was prepared when he was seeking orders that the child live with him.
2. At the commencement of the first day of the final hearing, the father, through his counsel, indicated that he sought to amend his final minute of orders sought. In due course, an amended minute of orders sought was provided (and became Exhibit F), with a summary of the amended position being provided orally on the second morning of the hearing. The father's amended minute of orders sought essentially provided for: the child to live with the mother; the parents to have joint parental responsibility and joint responsibility for major long-term decision making for the child; and that the father would begin a graduating regime of time with the child (initially supervised) culminating in a week about care arrangement, once the child commenced Year 1 of primary school.
3. That minute of orders sought was again amended (and became Exhibit 1) to include an order which would have the effect of changing the child's name to "[B Markas]" and an order providing for the father to be recognised as the child's father on the child's birth certificate. I note that an order to this effect had been made on 20 November 2023 (Order 3) but had not, at the time of the hearing, been implemented.
4. As is addressed more fully below, at the conclusion of the evidence, it was conceded by the father's counsel that the evidence was such that the court could make certain findings as to family violence occasioned by the father to the mother.
5. For the reasons that follow, I make orders which reflect those sought by the mother and the ICL.

1. The parties attended upon the Family Report writer on 15 and 16 May 2024; the parties having met with the same writer for the purposes of the preparation of an earlier Child Impact Report. The Family Report writer determined that given the history in the matter and the mother's stated fears and anxiety about the child having contact with the father, for the purposes of the interviews, the child would not be observed with the father.
2. At the time of the Family Report interviews, the mother proposed that the child live with her and spend no time with the father. At that time, the father sought that the child live with him and spend supervised time with the mother and the child's biological siblings but have no time with the long-term other children also living with the mother and the child.
3. At paragraph 40, the Family Report writer records the mother's reports of family violence:

To summarise, [Ms Taina] alleged that [Mr Markas] had perpetrated family violence and coercive and controlling behaviour both within the relationship and post separation including physical, verbal, emotional and psychological abuse and isolation from family and friends. More specifically, [Ms Taina] reported extremely high-risk incidents of family violence and abuse perpetrated by [Mr Markas] including the potential lethal act of strangulation, threatening to kill [Ms Taina] and [X] on multiple occasions, threatening to abduct [X], physically assaulting [Ms Taina] while pregnant (with the first pregnancy resulting in miscarriage) and sexually assaulting [Ms Taina].

1. The Family Report writer goes on to note the father's contentions at paragraph 41:

[Mr Markas] staunchly denied the allegations of family violence as reported by [Ms Taina], and repeatedly stated, "I am not guilty", and "all my charges (were) dismissed". More specifically, [Mr Markas] stated that [Ms Taina] was at work when she experienced a miscarriage, and he adamantly rejected claims that he had physically assaulted [Ms Taina] which contributed to her losing the baby. [Mr Markas] made counter allegations that [Ms Taina] was the perpetrator of family violence in the relationship and post separation and these concerns have been outlined in the Child Impact Report. To summarise, [Mr Markas] alleged that [Ms Taina] had threatened to kill him, that [Ms Taina] had been unfaithful in the relationship, and that [Ms Taina] had denigrated his culture and religion and destroyed his reputation at work.

1. When asked by the Family Report writer to consider alternative care arrangements in the event that the father's proposal was not successful, the father is reported to have said "it is unjust and unfair, if you don't want to give [X] to me, then don't give [X] to her [Ms Taina]" (at paragraph 61). The father eventually suggested an equal shared care arrangement as his alternate position.
2. Another issue pursued by the father was changing the child's name. The Family Report writer observed (at paragraph 62):

Furthermore, [Mr Markas] is proposing to change [X's] full name to "[B Markas]" and acknowledged that his name was not documented on [X's] birth certificate. [Mr Markas] stated, "I need my boy to have his true identity and his true name" and said that [X] did not know he belonged to [Mr Markas] because [Mr Markas'] name was not part of his identity. [Mr Markas] did not offer insight regarding the significant impact a change in first and last name would have for [X], referring to him as "just a baby" and that [X] would adapt to such a change.

1. In considering the seriousness of the family violence allegations made by the mother, the Family Report writer observed:
   1. ... Furthermore, if the Court was to determine that [Ms Taina's] narrative of the alleged family violence was accurate, and [Mr Markas] was unable to take responsibility for his abusive behaviours including learning new ways of managing feelings, stress, and anger in non-violent ways, then it is unlikely that [X's] safety could be assured in [Mr Markas'] care. If, however, [Ms Taina's] claims are not accurate, this may suggest that [X] would not necessarily be exposed to significant risk of harm while in the care of [Mr Markas]. If [X's] safety and wellbeing was not at significant risk in his father's care, it may be beneficial to his emotional wellbeing, his sense of identity, and his religious affiliations, if he were to spend time with [Mr Markas] and to be given the opportunity to have a relationship with [Mr Markas].
   2. It is difficult to assess risk based on [Ms Taina's] and [Mr Markas'] polarising accounts, and [Mr Markas'] persistent denial of the allegations made against him. However, it is noted that [Ms Taina's] allegations are serious and involve violence which could potentially become lethal, and this confirms that [X] would be placed at significant risk of harm if he was to spend time with [Mr Markas] and if collateral information supports [Ms Taina's] allegations. If, however, [Ms Taina] perpetrated violence in the manner as described by [Mr Markas], this would certainly raise concerns about the ongoing care she would provide [X] and could potentially expose [X] to risk of significant harm. This may also suggest that [Ms Taina] is prioritising her own needs over the benefit of [X] having a relationship with both of his parents being involved in his care. In saying this, [Ms Taina] appeared genuine and consistent in her account of alleged family violence perpetrated by [Mr Markas].

1. Orders with respect to children are addressed under Part VII of the Act. The objects of Part VII are as follows (as outlined in s 60B):

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. When deciding whether to make a particular parenting order in relation to a child (the meaning of which is provided for in s 64B), the court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA).
2. When determining what is in a child's best interests, the court must have regard to the considerations in s 60CC (noting that the child in this matter is Aboriginal), which are as follows:

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Additional considerations - right to enjoy Aboriginal or Torres Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order under this Part will have on that right.

1. Family violence is defined in s 4AB(1) of the Act:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

1. A list of (non-exhaustive) examples of family violence are provided in s 4AB(2) of the Act, which includes a range of behaviours that are alleged in this matter (including assault and sexual assault).
2. There was a dispute between the parties as to parental responsibility and decision making for the child. Parental responsibility is defined in the Act to embrace all duties, powers, responsibilities and authority conferred by law upon parents (s 61B of the Act). The Act defines "major long-term issues" to include those such as the child's education, religion, cultural upbringing, health, name, and changed living arrangements (s 4(1) of the Act) and specifies what "joint decision-making" requires of the parties in respect of decisions about such issues (s 61DAA of the Act).
3. The Full Court in Pierce & Pierce (No 2) [2025] FedCFamC1A 162 recently explained that:
   1. The construction of Pt VII of the Act subsequent to the 2024 amendments places a consideration of the safety of a child or another person as a focused starting point in the considerations being weighed in determining a parenting regime that best promotes the best interests of the child...:
      • A parenting order must not expose a person to an unacceptable risk of family violence (s 60CG).
      • The Court must consider the arrangements that promote the safety of the children and other persons (s 60CC(2)(a)).
      • The Court must consider whether any family violence order applies and any history of family violence, abuse or neglect involving children or a person caring for them (s 60CC(2A)).

1. In Chiles & Petrenko (2024) FLC 94-197, Tree J identified that:
   1. Orthodox risk assessment and management in parenting proceedings has been the subject of explanation in several full court authorities, most notably in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092. It bears repeating that the usual course in undertaking the assessment is to identify the contended risk event, gauge the likelihood of it occurring, and then consider the magnitude of harm which might ensue if the risk event does occur. One then considers whether in the light of those matters the risk of harm is acceptable or not.
   2. The purpose of ameliorative conditions is to mitigate a risk of harm from unacceptable to acceptable, such that when the risk analysis is repeated with the ameliorative condition in place, the relevant risk is assessed as acceptable.
2. The mother contends that the child spending time with and communicating with the father creates an unacceptable risk to the child's safety and her own safety. As made plain by the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [85], "the assessment of risk is an evidence-based conclusion and is not discretionary." At [85], the Full Court go on to explain that:

... Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.

(Emphasis added)

1. Notably, when assessing the nature and magnitude of a risk posed by a parent or other person, the Full Court (Austin, Williams & Harper JJ) confirmed in Eastley & Eastley (2022) FLC 94‑094 at [31] that, all relevant evidence must be considered as part of the "matrix of evidence" to determine whether or not the risk of possible future harm is unacceptable and that it "is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children."

1. Following the eventual agreement that the child should live with the mother, the remaining issues in dispute contracted and can be summarised as follows:

(a) Whether the mother (and, or, members of her family) have experienced or been exposed to family violence as perpetrated by the father;

(b) If so found, whether the child (noting that separation occurred prior to his birth) has experienced, been exposed to, or been impacted by such family violence;

(c) If the mother, the child, and, or, the maternal family have been exposed to family violence, to what extent does the father pose a risk of further family violence to each of them in the future;

(d) Whether contact between the father and the child presents an unacceptable risk of (various) harms to the child and, or, jeopardises the safety of the child and, or, the mother;

(e) If there is an unacceptable risk of harm posed by the father, what safeguards may be implemented, if any, such that the risk becomes acceptable and safe for the child to have a relationship with the father; and

(f) Should it be safe for the child to have a relationship with the father, then, what impact might such contact (which may take various forms, including supervised contact) have on the mother's parenting capacity.

1. Other issues arise in relation to specific orders sought by the parties, the resolution of which will be largely influenced by the resolution of matters identified in the above framework and findings to be made in accordance with such.

1. I observed both parents give evidence and be cross examined in person. Counsel for the parties and for the ICL made submissions at the conclusion of the evidence as to matters I might conclude not just from the content of the evidence of the parents but also from the manner in which that evidence was given. In particular, I was invited to reflect upon the mother's presentation and demeanour when being cross examined and to draw inferences from those observations.
2. Each party expressed at times, discomfort about, and objection to, the conduct of the other in the court room while being cross examined. Necessary directions were given as to those matters, for example, modifying the seating arrangements at the bar table to better ensure that the party giving evidence did not look directly at the other person when doing so.
3. Despite invitation from me, no formal application was made on behalf of either party to secure other arrangements for the conduct of the hearing.
4. It was clear that the mother was, at times, vulnerable while giving her evidence. There were occasions when the mother was distressed and needed time to recompose before cross examination could resume. Her distressed state was not surprising given the subject matter of the cross examination. Despite these challenges, the mother remained clear and articulate in her responses, and she was able to clarify and elaborate on her experiences, when invited to do so by counsel. I found the manner in which the mother gave her evidence to be forthright and, on occasions, she was able to make appropriate concessions as to her conduct - which suggested insight (for example, she recognised that she should not have gone to the father's home in January 2022 following which certain events then occurred).
5. The father also experienced cross examination to be uncomfortable. He was routinely argumentative and not responsive to the questions being asked. It was necessary for me to remind him, on several occasions, of the question being asked of him, and to direct him to limit his answers to the matters being addressed.
6. Despite this, on occasion, the father refused to answer questions. For example, with respect to questions about his employment, the father claimed that he could not answer the question "for safety reason". When invited to limit his answer to simply whether or not he was working, and having been reminded that he had said that he was no longer in receipt of Centrelink, he said "I cannot disclosure this information for safety reason again". That refusal continued despite a direction by me that I required the question to be answered.
7. The father had declined to declare his occupation in his evidence in chief, stating:

Well, also for the safety reason, I cannot mention it because the other one use it against me, and she report me to the Centrelink and the child support. She use it, like, against me. All - every information I have it, she use against me.

(Transcript 15 May 2025, p.300 lines 16-19)

1. I infer from that evidence that the father did not want the mother to know about his employment as it might assist her in progressing a child support assessment (or reviewing that which was in place).
2. The father's answers to questions were, at other times, evasive and argumentative. He exhibited little insight into the issues relating to the care of the child as is addressed further below.
3. In circumstances where there is otherwise no corroborating evidence, I prefer the evidence of the mother over that of the father.

1. The filed affidavits of the parties suffered from a lack of particularisation of certain of the matters alleged between them, particularly as to the family violence alleged by the mother, against the father. Consideration of certain key disputed events occurred during the hearing, and in her oral evidence, the mother was on occasions invited to clarify or explain aspects of her evidence. In response to those invitations, the mother was able to give further admissible and particularised evidence about certain of her experiences with the father.
2. Consequently, a range of corroborative documents were admitted into evidence during the hearing (primarily sourced from NSW Police and the DCJ records), which, along with the parties' oral evidence, provided greater clarity as to the history of family violence between the parties.
3. I have also had regard to the unchallenged evidence of Ms D, on behalf of the mother, which is corroborative of certain of the matters discussed below.
4. The following examples provide a clear evidentiary foundation for findings as to the family violence perpetrated by the father.

1. The police documents reveal that the mother attended the police in February 2021, when she reported certain matters of concern. This included the mother's complaint that text message communications she had received from the father were harassing; that she had observed items missing from her home (being two computer devices and her car keys) and that she believed they had been stolen by the father; and that in December 2020, the father had assaulted her, including pushing her onto the bed, and placing his hands around her throat and choking her. Those reports form part of Exhibit 14.
2. The mother reported to the police that the father said to her "you're my wife and if you ever leave me, I'll fucking kill you. Do you understand?" The mother then reports that the father, after pushing her onto the bed, had sex with her. The implication of the report is that the mother did not consent to having sex with the father.
3. The police note further in that document that the sexual assault report was made after other matters had been raised and that the mother indicated that she did not wish to divulge further information and, "although upset", seemed more focussed on the property issues.
4. The mother was cross examined about these allegations. She was asked about the police noting that her account (of the sexual assault) was "vague". The mother said that she did not want to talk to two male police officers about her experience.
5. The father was arrested in February 2021 and charged with four offences.
6. The alleged sexual assault, which the mother says occurred in December 2020, was not put to the father in cross examination (and it did not form part of the matters about which he was charged by police in February 2021). It was more generally put to the father in cross examination, that there had been occasions when he had sexually assaulted the mother and that he had told her that if she did not let him have sex with her, he would bring other wives into the home. The father denied those matters.
7. The father entered a guilty plea to one count relating to the events in December 2020, and the remaining charges were withdrawn. He was placed on a 12-month community corrections order (under supervision) and was required to undertake a particular domestic violence course.
8. Notwithstanding, in his oral evidence, the father asserted that while he did plead guilty, his actions were in self-defence.
9. The Court Attendance Notice of December 2021 relating to the hearing of these charges became Exhibit 11. The facts expressed in that document were the contentions upon which the father entered a guilty plea. Those facts are consistent with the report made to the police by the mother and include:

(a) "The accused pushed her up against the wall and held her around the neck with one hand, after threatening to kill her if she left him. He let go and the victim went to her bedroom, the accused followed her into the bedroom."

(b) "The accused stood in front of the victim as she sat on the bed at the foot end of the bed. He pushed her back and straddled her holding her down with his body weight and knees in her hip and on her left arm, the victim's right arm was pinned behind her. The accused used both his hands to strangle the victim placing his hands around her neck and squeezing, the victim found it hard to breath[e] and told the accused to get off her."

(c) "The accused said "You're my wife and if you ever leave me, I'll fucking kill you. Do you understand?""

1. This was a serious assault, which occurred in the mother's home and while her children were also in the home. On the above facts presented to the Local Court and consistent with the mother's evidence in these proceedings, and notwithstanding the father's recent attempt to justify his conduct, I am comfortably satisfied, and find, that the father assaulted the mother in her home in December 2020. While the charges relating to intentional choke did not proceed, the mother alleged in these proceedings that such conduct had occurred. I accept the mother's evidence about these actions by the father, and I find that the father has engaged in the conduct described previously including placing his hands around the mother's neck, applying force, on two occasions during this assault (once in the hallway and once in the bedroom). I am satisfied that this occurred because:

(a) The father's oral evidence about these events was inconsistent.

(b) He denied in cross examination that he had behaved in the manner described by the mother in her evidence (including saying "never happen" and that he "did not assault her at all").

(c) Later in the cross examination, the father instead suggested that he "just push her back on me because she was hitting me like crazy woman. She's mental".

(d) He then suggested that it happened but "in different ways".

(e) The father pleaded guilty to one count.

(f) I also have regard to my general preference for the mother's evidence to that of the father.

1. The Family Report writer notes the instances of attempted strangulation by the father of the mother as being indicators of the increased risk of lethality to the mother. Having found that the assault occurred as described by the mother, I also take into account the gravity of the nature of this family violence.

Email from the father to the mother on 8 February 2021

1. Exhibit E, tendered on behalf of the father, was an email that the father sent to the mother on 8 February 2021. In that email, the father said, "[...], my slut wife. You sleep with stranger while I'm not at home, what kind of women u are...". That extract is indicative of the tenor of the whole document which includes further accusations, including: "...u choose to have stranger inside our home, u getting drunk with them, u dance with them, u make sex with them, and I have prove about this, at the same times u try to ripe my bank account...". That communication from the father to the mother was sent when the mother said they were "broken up" (but subsequently reconciled).
2. The father did not address that communication in his written evidence and the email was made an exhibit in his case. The father's email to the mother is suggestive of a rigid and highly critical view of the mother.
3. That poor attitude is expressed elsewhere in the father's written evidence. The father deposed to his view that the mother "manipulated and controlled" him and "used and abused me for her personal gain, while engaging in extramarital affairs". Similar highly critical views of the mother were expressed by the father to the Family Report writer.
4. I find that the contents of that communication are abusive, demeaning and offensive. I find that the sentiments expressed in that email by the father reflect the father's fundamental contempt for, and disrespect of, the mother. His written evidence, prepared in January 2025, does not suggest that his highly critical views have tempered.

Family violence incidents in October and November 2021

1. The mother deposed to being beaten "very badly" by the father in October 2021, when she intervened to protect one of her children from the father. In her written evidence, the mother said that she was punched in the face by the father and that he "threw himself against the walls, my car and a window". The mother was cross examined about that event and in that process, she deposed to another similar event which occurred in November 2021. She was invited to provide further detail about both events.
2. On 23 November 2021, the mother contacted Ms H, a counsellor who had assisted the parties during the relationship and made certain reports to her about the father's conduct at that time, consistent with the account given in her written and oral evidence.
3. The mother, in her oral evidence, stated that there had been "multiple times" when the father had thrown himself into a glass window (which she clarified was Perspex sheeting used in the sunroom).
4. When asked to clarify if the events reported by Ms H (described as having occurred in November 2021) were in fact the same as the events reported in her affidavit (stated to have occurred in October 2021), the mother said:

I can't remember exact dates of every time that he assaulted me or hurt me or my kids or punched me. I can't remember every single date.

(Transcript 5 March 2025, p.141 lines 25-26)

1. The mother was invited to recount her memory of what occurred and did so, stating that the father had deliberately hit his head against the Perspex window, then "rebounds" into the mother's car, and then headbutted the Perspex window again. The mother said that in the October 2021 incident, she had been intervening to protect one of her children (then aged 17) from the father, who was referring to the children as "stupid" and "retarded".
2. The mother was again invited to explain what had occurred and said that the father started hitting himself, that he threw himself onto the car, and that he then returned to the sunroom and headbutted the Perspex window.
3. In response to clarifying questions from the father's counsel, the mother explained that she stepped in to shield her son J from being struck by the father and that the father instead hit her face and her stomach. The mother was shown a text message from the father in which he said "I punched myself. I hurt myself. I punched my head". While the mother recognised and accepted that the text was from the father, she said that communication related to another occasion when the father was hitting himself.
4. The mother clarified that the incident between she and the father, which involved J, had occurred in November 2021 and that another similar incident had also occurred in October 2021. In re-examination, the mother produced a series of images of herself, which photographs she had taken in October 2021. Those images, which show various marks and bruises to the mother's face and also to her abdomen, were part of Exhibit 3. Those images were consistent with the mother's oral evidence about the father's assault of her in October 2021.
5. The events of November 2021 were later reported to the police by the mother, in February 2022.
6. At that time, she made certain complaints about the father's conduct towards her and referred to "previous" assaults she had experienced. The mother gave certain information to the police about the incident in November 2021.
7. The father was charged with two counts because of the events of November 2021. NSW Police documents, forming part of Exhibit 14, record the mother's account of the events of November 2021, which include that she was struck to the face and had been punched to the head area and her stomach (when she was pregnant). Those records report that the father had then motioned to strike the mother's child, when the child attempted to step in to protect the mother. The police document reports that the mother had been struck by the father, to the head, when she "pushed the son out of the way".
8. The cross examination of the mother about the father's conduct in October and November 2021 served to amplify the mother's primary evidence before the court as to the physical violence she experienced on those occasions, at the hands of the father.
9. The father was cross examined about the events in November 2021. The father denied the assertions, stating that "I did not remember at all. I did not touch her or her son" but he later conceded that he did throw himself into the (Perspex) windows. The police records refer to the father's attendance upon a third party to whom the father "made full admissions to assaulting the victim in relation to this particular incident".
10. In due course, those charges were dismissed, on mental health grounds.
11. I accept the mother's evidence about these events. The mother's account of the events and assault which occurred in November 2021 is consistent with the account she gave to Ms H (which account was given by the mother close to the time the events occurred) and as reported to the police. The mother explained in her oral evidence that a similar incident and assault had occurred in October 2021, and she produced images taken by her at that time, which were consistent with her account of the assault upon her (Exhibit 3). I am satisfied in these circumstances, that there were two separate occasions where the father behaved in this violent manner, including engaging in self-harming behaviours, and which included assaulting the mother.
12. Nothing about the manner in which the mother gave this evidence caused me any concern as to the veracity of her account. When the mother was asked to clarify, she was able to provide some particulars distinguishing the two different events, the nature of the violence she experienced, and when they each occurred. I accept the mother's evidence that she had experienced the father to become distressed and engage in self-harming behaviours, prior to assaulting the mother.
13. The evidence comfortably persuades me, and I find, that the father engaged in serious family violence to the mother on an occasion in October 2021 and November 2021. I also find that the violence in November 2021 occurred in the presence of at least one of the mother's children. Concerningly, these incidents of serious family violence occurred at a time when the father was already the subject of a provisional ADVO for the protection of the mother and her children.
14. I also note that the father has assaulted the mother when she was pregnant with the subject child. That consideration again weighs in my finding that the family violence directed at the mother by the father is very serious.

1. The mother deposed in her written evidence to being assaulted by the father in December 2021, with the father punching and kicking her (the mother's affidavit at [46]). The mother said she later drove the father to meet with his Parole Officer, as scheduled, and it was there, with the assistance of the Parole Officer, that she was able to separate from the father.
2. The mother's oral evidence was that with the encouragement of the Parole Officer, she that day attended upon police at Suburb K Station; that it was during Covid restrictions; that she waited at the station for two and a half hours; that the police were "stretched" and that they told her they would send someone to speak with her later at her home.
3. The mother said she believed that she later spoke with police, that she did not seek to press any charges and that she was assisted with adding further detail to her ADVO.
4. The mother's oral evidence was inherently consistent. Her explanation as to the events (in response to a question asking her to clarify her written evidence) was clear. In circumstances where I generally prefer the evidence of the mother over that of the father, as set out previously in these reasons, I accept the mother's evidence that there was a further instance of violence directed to her by the father in December 2021. I accept that these events were experienced by the mother as a catalyst for the final separation between the parties.

1. The mother deposed in her written evidence to being charged with, and convicted of, one count relating to an incident involving the father in January 2022. The mother did not otherwise provide primary evidence in her affidavit of the events leading to that charge. However, as a result of questions put to her in cross examination and the production of other documents which were made exhibits, the circumstances leading to those charges became clearer.
2. The mother said that one of her children, then aged five, had come to her on the morning in January 2022, after observing intimate images of a woman on the child's iPad. The mother believed that the images were shared from the father's phone account (inadvertently it would seem) because of the family sharing an iCloud account, managed by the father.
3. After discovering the images, the mother attended the father's accommodation and knocked at his door. The mother says that she was accompanied by two of her children, then aged 16 and 15. The mother said that upon opening the door, she confronted the father about the images on the child's iPad. A disagreement between the parents followed. The mother asserts that the disagreement between them took place in the father's room and outside near her car.
4. The mother said that the father pulled her into his room and that he closed the door and prevented her from leaving. An altercation thereafter occurred in which she was physically wrestled by the father.
5. In that scuffle, the mother asserts that the father took her car keys and that she was attempting to get them back; she denied striking the father with a frying pan though admitted that she had grabbed it before it was taken from her by him; she said that the father manhandled her onto the bed and had straddled her, restraining her from leaving the room.
6. The mother was pregnant at this time. The mother asserts that she was assaulted by the father and that he struck her stomach with both an open hand and a closed fist. The mother reports suffering bruising and marking to her body as a result of the father's assault of her. She said that her finger was cut during the scuffle, when she attempted to get her car keys out of the father's pocket.
7. In response to further questions, the mother gave evidence that she was restrained and forcibly detained by the father, and that she was screaming out for help from within the locked room. The mother said that her children (who were outside the room) later told her that an older man, who did not speak English, was speaking to her children and that he rang his son, who then spoke to the children (in English). The mother said that the person on the phone telephoned the police along with her children.
8. The police later observed spots of blood on the father's t-shirt and shoes. The mother asserts that the blood came from the injury to her hand. The father told the police that the blood was his, caused by injuries sustained in the attack by the mother.
9. The mother gave an account of these events to the police. At that time, the father was subject to an ADVO protecting the mother. While the police initially investigated this event as a possible breach of the ADVO and assault of the mother by the father, the police later formed the view (after speaking with the father), that the mother was the assailant and that the father had been assaulted by her.
10. The mother was charged with one count, and no charges were directed at the father.
11. The father's counsel asked the mother about her subsequent attendance upon Ms H. A letter from Ms H (dated 16 February 2022) and which became Exhibit M, was shown to the mother. The following is expressed in that letter:

On [...] January 2022, [Ms Taina] contacted me again, informing me about a DV incident during which [Mr Markas] had allegedly held her captive and punched her in the face [...], and had also punched her and her pregnant daughter in the stomach. She texted me photos of the bruises and wound on her knees. She stated that she had tried to defend herself with a frypan and was charged by police for this, whereas there was no repercussions for [Mr Markas].

1. The mother maintained, as reported to Ms H and recorded in her letter, that the father had on that occasion, struck her to her face, that she had been restrained ("held captive") and that he had punched her (and her daughter) in the stomach in January 2022. Ms H records in that document (the information underpinning which was given by the mother proximate to the occurrence of the event) an account of those events which is consistent with the mother's evidence.
2. The mother said that her children (who were present and witnessed these events and have, in accordance with her evidence, also been assaulted by the father) were not interviewed by the police. She also maintained that she had later sent the police images of the injuries she had sustained.
3. The father, in his oral evidence, denied the mother's allegations. He admitted to locking the door while the mother was in the room with him and asserted that he wanted the mother to return his phones to him. He asserted in his oral evidence that the mother had "five people with her" and that he had been assaulted by her. The father had the mother's car keys and she had his phones.
4. The court received into evidence a series of photographs taken by the mother that day which became part of Exhibit 3. I accept the mother's evidence that some of those images were taken by the mother in January 2022 and that they show various marks and bruises to parts of the mother's body and of her bloodied finger. The photographs of the mother were corroborative of her account of the injuries which she says she sustained from the father's assault of her.
5. I have regard to the NSW COPS extracts relating to these events (being Exhibit I). The mother is recorded as the victim in one document and the accused in the other document. The mother gives an account to the police which is consistent with her evidence.
6. It was put to the mother that she was present at the Local Court when the charges were heard and that she had observed the father give evidence that the two people who attended with her were wearing balaclavas. The mother denied that the children were wearing balaclavas. The NSW COPS reports made at the time of the initial encounters with the parties do not record the father alleging that anyone was wearing a balaclava.
7. The mother was convicted of one count, relating to the events of January 2022. The mother said that she is pursuing a review of that conviction and understands she will need to file an application to adduce additional or other evidence. The mother said that she was pursuing those matters herself, without legal representation.
8. Despite the mother's conviction, the evidence as a whole persuades me, and I am satisfied, that the events occurred as the mother has asserted in her oral evidence. I do not know the evidence which was available to the Local Court when these matters were determined there. However, the evidence before me, taken as a whole, leaves me comfortably satisfied that the events occurred as the mother contends. I note that Exhibit M records the mother's account given to Ms H, shortly after the event, and is also in terms consistent with her oral evidence. The mother was clear about the events that led her to attend the father's home and as to what then occurred. She was not shaken in cross examination, and when invited to, was able to set out with detail her recall of what had occurred. The photographs taken by the mother after the event are consistent with her account that she was injured during this altercation with the father.
9. The mother conceded that she should not have attended the father's home (after she became aware of the images on the iPad being used by her child) and that it was a mistake to have done so, especially when there was an ADVO in place for her protection from the father. However, the mother was unshaken and consistent in her evidence as to the events which occurred once she was at the location. I prefer the mother's evidence about these events over that given by the father.
10. Given those matters, I am satisfied on the evidence as a whole, and I find, that the father behaved in the manner as asserted by the mother in January 2022 and assaulted the mother and restrained her.

The father's views and further physical violence during the relationship

1. The mother deposed to having experienced the father express "fanatical views of Islam" which she considered to be "dangerous and harmful" to the child. When asked by the father's counsel what she meant by "fanatical views", the mother said:

That I would have to give birth to his child while he brings many wives into the house, and that I had to prepare meals for those women and watch degrading stuff to be done in front of me, and that I was not allowed to have a say.

(Transcript 4 March 2025, p.64 lines 8-10)

1. The mother was asked by the father's counsel to clarify this evidence. She explained that the father had told her that he could have up to six wives and that she would be required to do as she was told (presumably by the father). When the mother was asked when the father said these things to the mother, she replied "every time he beat me". In response to a question from me about the frequency of these beatings, the mother answered, "probably over 20". The mother explained that on occasions, the father would sit on her chest, telling her "that I would have to do what they told me to do".
2. I accept the mother's evidence. The mother was direct and clear when giving this evidence, though at times it was clear that she was distressed when doing so. Nothing about the manner in which the mother gave this evidence caused me to question its veracity. I am satisfied that the father has been physically violent to the mother during their relationship and that he "beat her" and made demeaning comments to her, as described by the mother.
3. I find that the mother has experienced other occasions when she has been struck and, or, "beaten" by the father. The mother said that this had occurred on "probably over 20" occasions. The frequency of the asserted assaults by the father of the mother (linked to the comments the mother asserts were made by the father) was not expressly put to the father. In circumstances where I prefer the mother's evidence to that of the father, I accept that she experienced other occasions when the father used physical violence towards her. I do not find that such occurred more than 20 times but accept more generally that other instances of violence occurred by the father to the mother during their relationship.

1. The mother deposed to her ongoing assistance to, and support of, the father in relation to his mental health during the relationship, in addition to gathering information and evidence to support his defence, on mental health grounds, of various charges pending against him.
2. The mother said during her oral evidence that "all" of the father's other charges (he was charged in relation to events with his former wife and his former brother-in-law) were dismissed as a result of "plea deals" with the police and, or, relying upon asserted mental health impairment.
3. The mother was able to particularise the support she provided to the father about these matters, including assisting the father to attend appointments with court appointed psychiatrists, doctors and a counsellor (and Ms H who was at times part of that process). The mother said that the father "got her to do" the paperwork for all of these matters.
4. The mother said that she was present when the father had discussions with doctors about his mental health functioning, including when he was admitted to the involuntary mental health unit at M Hospital.
5. The evidence before the court makes clear that on a number of occasions, the father has told the police that he was suicidal, and the police have observed him to be in a distressed state. The police records make clear, for example, that in July 2021, when the father was arrested over allegations that he had committed an offence against his brother-in-law, the father was observed by police to become highly distressed, saying that he would kill himself; he also made threats to kill himself when arrested by police in February 2022, as revealed in Exhibit 14. Consequently, the father has been assessed as having, and on one occasion was hospitalised due to, mental health vulnerability.
6. The documents produced to the court by the NSW Police (Exhibit 14) make clear, and I find, that the father has himself asserted mental health vulnerabilities under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) on a number of occasions and has consequently, avoided trial and, or sanction for a range of criminal offences. I am satisfied that one such occasion was in relation to the assault charges faced by the father after the events of November 2021 (addressed previously in these reasons).
7. In the process of preparing to face those criminal charges, the father, with the assistance of the mother, has engaged with, and sought the opinion of, a number of psychologists, counsellors, doctors and other allied health providers. The Court received two reports prepared by mental health providers relating to historical assessments of the father's mental health and functioning, created for use by the father, or for his benefit, in criminal proceedings faced by him (Exhibit 17). That exhibit includes a letter dated 15 October 2021 from Ms H addressed to the father's general practitioner, Dr L. In that letter, Ms H records that she had seen and worked with the father since 13 June 2021. The father also consulted a nurse practitioner, Ms N, who prepared a letter for the father's then lawyers (dated 2 June 2022) which also summarised aspects of the father's presentation, the relevant history provided by him and recorded that Ms N had met the father in March 2022.
8. I find that the father, between June 2021 to June 2022, provided instructions to those providers as to a history of mental unwellness, including suicidal ideation and depression. The father also provided instructions as to trauma he had experienced when he was assaulted while in custody (when facing the charges relating to his former wife). I accept from this evidence that the father has in the past been prescribed anti-depressant medication.
9. The father, at the time of the hearing, rejected any ongoing mental health concerns. He indicated that he was not consulting a psychologist and that he did not need to do so. During his oral evidence, the father suggested that the general practitioner he had consulted, Dr L, was the mother's doctor and that the mother had provided instructions and directions to the doctor and that Dr L did not act on information provided by the father. To the extent the father may have intended to convey that he was not responsible for the shaping of his instructions to the doctor and the broader mental health engagement in his criminal proceedings, I reject the contention. I find that the father embraced the mental health pathway to assist him in the resolution of the criminal matters he was facing and that Ms H and Ms N prepared documents in support of that outcome, based on information provided (at least in part) by the father.
10. As is addressed more fully later in these reasons, the father did not place contemporary evidence before the court as to his current mental health functioning.

1. I am satisfied, and have found, that the father has engaged in serious family violence against the mother during their relationship which has occurred on multiple occasions, and which has occurred, in some instances, when the mother was pregnant with the child.
2. The father's choice to engage in family violence has been sustained over the entirety of the parties' relationship and has also occurred at times when the mother has been protected by an ADVO.
3. The instances of family violence about which I have made findings include two occasions, as found by me, when the father has placed his hands around the mother's neck and has applied force. I have regard to the views of the Family Report writer about the seriousness of the family violence and the recognition that a number of characteristics of the father's conduct, as found by me, are suggestive of more serious family violence with a higher risk of lethality (strangulation and violence occurring while pregnant). I accept that evidence.
4. The father's conduct has occurred on occasions in front of the children of the mother.
5. I have found that the father's attitude to the mother is disrespectful and contemptuous. The entirety of their relationship has been characterised by serious family violence. The father continues to reject any responsibility for his conduct to the mother in the relationship and blames her and maintains that she is untruthful.
6. I accept the mother's evidence that she is fearful of the father, and I find that those fears are reasonably based and properly held, given the mother's experiences.
7. The child was not born until after the parties had separated but the child was in utero when the father made choices to engage in family violence towards the mother. In engaging in such conduct to the mother, the father was also placing the unborn child at risk.
8. The father made no admissions in these proceedings as to his conduct and maintained that the mother was untruthful and had fabricated allegations against him. I do not accept those contentions which are against the weight of the evidence. I have expressed elsewhere, my reservations as to the father's evidence.
9. The mother identifies the father's lack of insight and accountability for his actions as another risk factor. While the father has engaged in certain courses intended to address his behaviour and management of emotion (including as part of his sentence following upon his assault of the mother) and has engaged the supports of counsellors and therapists, he remains fixed in his belief that he has been wrongly accused by the mother.
10. I am not persuaded that the father has gained any material benefit from the courses he has completed (including the 1-2-3 Magic and Circle of Security programs) nor the engagement he has experienced with counsellors and, or, other mental health providers. The father remained singularly without insight with respect to his own conduct and the likely consequences for the child of the orders being sought by the father, at various stages of these proceedings, including at the final hearing.
11. I am satisfied that if the father had unsupervised time with the child, such would place the child at unacceptable risk of exposure to family violence. I am also satisfied that the child would be at risk of exposure to the father's highly negative and critical views of the mother in the event the father was to spend time with the child.

The developmental, psychological, emotional and cultural needs of the child

1. The particular vulnerabilities of this child have been identified and are set out previously in these reasons. The child is very young and remains entirely dependent upon his mother to provide for his needs. The observations of the Family Report writer make clear, and I accept, that the mother is meeting his needs very well.
2. I accept the mother's evidence as to the steps she has taken to ensure the child is also aware of the child's Country F culture and that she is sharing with him opportunities to learn about the Islamic faith. I also accept the mother's evidence as to her intention to continue to expose the child to his paternal cultural heritage.

The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs

1. The father has not displayed insight into the consequences of his choices in his relationship with the mother and especially as to his choice to engage in family violence.
2. To the extent the father has engaged in certain counselling and therapeutic supports, it is not evident that he has derived benefit from those experiences. I find that the father's continuing refusal to take responsibility for his engagement in family violence is another serious risk factor and I accept the evidence of the Family Report writer at paragraph 74 about this:

Furthermore, if the Court was to determine that [Ms Taina's] narrative of the alleged family violence was accurate, and [Mr Markas] was unable to take responsibility for his abusive behaviours including learning new ways of managing feelings, stress, and anger in non-violent ways, then it is unlikely that [X's] safety could be assured in [Mr Markas'] care.

1. Those factors leave little space for optimism about the father's prospects of developing insight in the future. The father sought orders that the child live with him, until the morning of the first day of the final hearing. He sought those orders despite never having met the child and despite his knowledge that the child has certain health vulnerabilities. The father was ignorant of the likely impact of such radical change upon the child (telling the Family Report writer that the child would "get attached to me"). He remained sceptical as to the veracity of the identified health vulnerabilities of the child and suggested that he would require the child to be tested by other doctors such that he could receive satisfaction about those matters (with little apparent regard for the impact of that process upon the child). That position speaks of an absence of any understanding of the needs of a young child and insight into the terrible consequences for a child in being abruptly removed from the child's primary carer.
2. The Family Report writer observed of the father's proposal (The Child Impact Report at paragraph 28):

... In the interview with [Mr Markas], he did not however, appear open to developing a relationship with [X] at a gradual and steady pace, nor did he wish for his time with [X] to be supervised in a supported setting to provide the best positive outcome. [Mr Markas] wishes for [X] to live with him and his new partner, [Ms G]...

1. When challenged by the Family Report writer about the possibility that the court might not accede to the father's orders sought (and as recorded in the Family Report), the father then proposed an equal shared care arrangement, apparently on the basis that if he could not have the child, then the mother should not have the child either.
2. I find that these comments made to the Family Report writer (which were not the subject of challenge) and the father's orders sought in these proceedings, reveal a complete lack of understanding of the child's needs and the importance to the child of the care provided by the mother, and they appear imbued with a sense of proprietorial interest in the child.
3. My concerns in that regard are amplified by the findings I have made as to the father's very poor attitude to the mother as displayed in his written and oral evidence.
4. At the time of the observations of the mother with the child in June 2024, the Family Report writer said, at paragraph 68, that "[Ms Taina] presented as an attuned and loving parent who was capable of reading [X's] verbal and non-verbal cues, and she ([Ms Taina]) was observed to provide positive stimulation, offer enjoyable play experiences, and meet [X's] physical, emotional and psychological needs during the assessment process." The relationship between the mother and the child was described as warm, loving and secure (The Family Report at paragraph 82). I accept the evidence of the Family Report writer.
5. I find that the father does not understand or respect the mother's role in caring for the child, nor does he appreciate the many essential benefits the child derives from his mother's care and nurture.
6. In addition, I note the father's lack of insight with respect to the orders he sought about wholly changing the child's name (including his first name), only modified during cross examination when he said he would not make the change if there was going to be an impact upon the child. I find that the father's evidence about this matter revealed another instance of his absence of insight about the likely impact of such a change upon the child.
7. The father also appears to have his own mental health vulnerabilities. Those vulnerabilities may impede the father's ability to reflect and develop capacity and insight with respect to the needs of the child and more generally, may suggest that the child will not be safe in his care. Those vulnerabilities, discussed previously in these reasons, were at times such that he expressed suicidal ideation and engaged in self-harm, as recently as 2021, as observed by the mother, and as found by me. The Family Report writer opined that if the father had difficulties maintaining his mental health, this was another factor which contributed to risk for the child, in the event he was to spend time with his father. I accept that evidence.
8. The father has not placed contemporary evidence before the court as to his mental health and psychological functioning, save for his own declaration that he no longer requires mental health supports.

The benefit to the child of being able to have a relationship with his parents, and other people who are significant to the child, where it is safe to do so

1. If no spend time orders are made, the child will be denied the opportunity to develop a relationship with the father and to know and understand more directly, his heritage on his father's side.
2. At the conclusion of the evidence, the father's counsel made submissions about the orders for time as sought by his client, as follows:

Those orders are based on his overall sense of wanting to have a relationship with the child. They're very aspirational orders at this particular point in time... they do not take into account the impact of such orders might have on the child, particularly the age of the child, and there's no references here for family therapy or any type of reintroduction, and so it does have a number of deficiencies, but the intention seems honourable in the sense that, effectively, if the court accepts, and I will be saying that the court would be making findings of family violence in this relationship ...

(Transcript 18 June 2025, p.558 line 41 to p.559 line 2)

1. This is not a case however, where the child has two capable and engaged parents from whom he may derive benefit in experiencing aspects of care from each of them. The principles which inform the broad proposition that a child benefits from a relationship with each of his parents (see for example, U & U [2002] HCA 36; (2002) 211 CLR 238 at pages 285-286) are displaced as here, where there are serious deficiencies which undermine the parenting offerings of one parent. I recognise and take into account that the child may derive some benefit from knowing his father and his paternal heritage. However, in circumstances where a parent has been found to have engaged in serious family violence and noting the other risk considerations identified elsewhere in these reasons, the need to protect the child outweighs those other possible benefits.
2. I recognise that it is a serious decision, not to be made lightly, to determine that a child will not spend time with or communicate with a parent - and in this matter, for the child to not meet the father.
3. These considerations must be assessed within the guiding framework in relation to the safety of the child and of the child's mother.

1. The child is Aboriginal, and his mother will continue to support his exposure to, and learning about, his culture. The mother gave specific evidence about the steps she has taken to foster the child's exposure to his Indigenous culture and heritage.
2. I note that the father did not accept the mother's indigeneity, which I identify as another risk factor with respect to the father's ability to support aspects of the mother's care of the child and in support of the child's heritage and identity. His disrespect for and rejection of the mother and child's cultural heritage is such that I find that there is a risk that he would communicate those disrespectful views to the child in the event that he had an opportunity to spend time and communicate with the child. That is likely to be confusing and distressing for the child and is entirely inimical to the development and nurturance of the child's cultural identity.

Can the unacceptable risks be mitigated such that they become acceptable?

1. I have found that the father poses an unacceptable risk of harm to the child, consequently invoking a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level (Bielen & Kozma [2022] FedCFamC1A 221 at [51]-[55]). As was said by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
   1. A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child'".
2. It was submitted on behalf of the father that the court could find that the father had engaged in family violence to the mother. However, it was pressed on behalf of the father that supervised time could be ordered and implemented and that such would provide some protections against the risks identified relating to family violence. The father placed no evidence before the court as to the specific supervision service he proposed to use but referred to the service about which previous orders had been made (relating to an intake process which was not ultimately completed by the mother). I have no evidence as to the practical considerations relating to the use of that service.
3. The mother contends that she remains fearful that the father may hurt the child, even if his time was the subject of professional supervision. She also expressed fear that the father might abduct the child even in a professionally supervised setting and, or, might locate the place at which the mother and child are living if spend time arrangements commenced.
4. In cross examination of the mother, the father's counsel explored these issues with the mother, gauging the extent of her support for supervised time and, in open questions, invited her evidence as to the basis for her concerns. The mother was clear that the presence of supervisors did not ameliorate her fear about the father hurting the child. She was invited to explain and said:

And why is that? Because he has made threats that he will run off with [X] and take him to [Country F] and that I would have no rights because [X] is [of Country F background]. The mother's signature does not have to be on a passport in [Country F] - in that country, and I have verified that by ringing the consulate, and they have confirmed that if [Mr Markas] took [X] to the embassy that he can apply for a passport in - without my signature.

I understand, [Ms Taina]. But you're aware, of course, that there would be a supervisor present throughout this contact between [X] and the father? But they cannot actually stop him and prevent him from leaving the room.

Okay. So you're not comfortable, notwithstanding? I'm scared.

You're scared for? For my son.

For [X's] safety? And scared for everyone's safety.

And assuming the court were to make those orders, as in allowing the father supervised time, how would that make you feel personally? Scared.

Scared for [X]? [X] and myself. Scared that he will find where we live again. Scared that he will hide in my home again. Scared that he will follow my every movement. Scared that he will hurt [X], and that I wouldn't get to say goodbye.

I understand, [Ms Taina], with respect to those fears. But you've also given some evidence about what has occurred in court today, and how your fears have incited a physical reaction. You recall giving that evidence? Yes.

In that you were vomiting? Yes.

Now, is that something that you would say occurs often when you experience feelings of fear? Not in normal situations, no. Only when I'm around him.

Only when you're around? [Mr Markas], or if I feel threatened from him. But I haven't - I don't do that in general every day.

Okay. So that physical reaction that you experienced today is a result of your fear of [Mr Markas] in particular? I get flashbacks.

Okay. Now, we've spoken about [X's] physical safety in a supervised environment, but would you have concerns about [X's] emotional safety in a supervised environment with [Mr Markas]? Yes.

And what are those concerns? That he might hurt him. He might try and force him to do things. He might also badmouth - badmouth myself and his siblings. My most thing is that I'm scared to death that he will hurt him.

Physically hurt him? Physically, emotionally, mentally.

Okay. And [Mr Markas']s denigration of yourself and your family, is that something that you experienced throughout your relationship with him? Sorry, what's denigration?

Denigration - it basically means criticisms for? He still does it to today, even in the courts.

(Transcript 5 March 2025, p.223 line 1 to p.224 line 12)

1. The mother's oral evidence made clear the extent of her fears of the father and the risk that he posed to the child. I accept her evidence.
2. The Family Report writer expressed concern that while the father remained defiant and without insight as to his conduct and its consequences, the risk to the mother and the child remained high and supervision of his time with the child may not be sufficient to ameliorate that risk. These considerations informed her recommendations, expressed in paragraph 90 of the Family Report.
3. The safety considerations in this matter loom large, given the history of family violence as found by me.
4. The father has engaged in serious family violence to the mother during and following their relationship. He has directed that violence to the mother while she was pregnant with the child and he has engaged in family violence in the presence of other children of the mother. The father remains unapologetic and unremorseful about his conduct and his contempt for the mother is evident in his behaviour towards her. He has engaged in family violence notwithstanding being subject to restraints under an ADVO.
5. It is difficult to contemplate an arrangement which would sufficiently promote the safety of the child and the mother in all of these circumstances.
6. I place some weight on the risk, as identified by the mother, of the child being removed from the supervision centre by the father. The risk of that occurrence cannot be entirely mitigated, and while I assess it as being improbable, it is still possible in circumstances where the father denies he has engaged in family violence, has no insight into the consequences of his conduct and has a misplaced sense of proprietorial entitlement to the child (as evidenced by his comments to the Family Report writer).
7. While the risk of abduction is low in the circumstances of professionally supervised time occurring, the consequences for the child and the mother, in the event it occurred, would be devastating.
8. The mother may also be at some risk of being located by the father, with the attendant risk to her safety, the safety of the child, and the wider maternal family in that event, given my previous findings.
9. There is no evidence before the court about how this child would be adequately supported in the introduction of his father. That responsibility would inevitably fall to the mother and the adjustment process for the child is compounded by the risk that even in a supervised setting, the father may share with the child his intemperate and highly critical views of the mother. Again, while in a professionally supervised setting the opportunity for such poor conduct by the father is reduced, the risk of its occurrence cannot be entirely excluded, including because of my findings as to the father's presentation and the uncertainty as to his mental health functioning.
10. In addition to the findings I have made as to the serious family violence committed by the father upon the mother and the risk created by the father's lack of accountability about his conduct, I also have regard to the views of the Family Report writer in the Family Report:
    1. At the very least, the commencement of time spent between [X] and [Mr Markas] would need to be established with protective measures in place such as in a supervised setting, with a supervisor's oversight however, [Ms Taina] has reported significant concerns about [X's] safety within this context including [Mr Markas] abducting [X] from the children's contact centre, and / or [Mr Markas] locating [Ms Taina's] residential address and re-engaging in stalking behaviours and harassment. [Ms Taina's] concerns about [X] spending any time with [Mr Markas] has the potential of causing significant anxiety and distress for [Ms Taina] should time commence, and potentially compromise [Ms Taina's] sense of emotional and psychological safety. If [Ms Taina's] stress and anxiety went unmanaged, this could have a significantly negative impact on her capacity to cope with the demands of parenting and the care she provides to [X].
11. I have regard to the possible impact upon the mother if supervised time was to occur. I accept and I find that the mother holds a genuine and reasonably based fear of the father and fears about what he may do to her and, or, to the child. I am satisfied, and I find, that the child spending time with the father, even in a supervised setting, would create a risk of the mother being so fearful and anxious for the well-being of the child that she will decompensate. There may be consequences to the mother's ability to parent the child, if contact was to begin, even with supervision. The child is at risk, accordingly, of being deprived of his primary carer, or at least having her ability to provide care to the child to become compromised.
12. This is a child who remains very young and who has a series of health and developmental challenges. He is entirely dependent upon his mother, as his primary carer, to meet all of his needs. I assess the risk that the mother decompensates (in the event time is ordered to occur) to be real and such was identified as a risk by the Family Report writer.
13. The primary factor which weighs against consideration of supervised time is the remaining risk created by the father's conduct and his lack of acceptance and insight into his conduct. A secondary, but significant, factor weighing against supervised time is the mother's genuine and reasonably based fear of the father and the risks she considers he poses to the child.
14. It was put to the mother that the father had not sent threatening messages to her about harming the child, and that he had never told her that he would harm the child in any way. The mother rejected those contentions, saying:

Punching me in the stomach and telling me he could take my son away whenever he wants, telling me I'm his wife, and that I had to do what he wanted, and assaulting me while pregnant, do you think that's not - that he's trying to take my son or hurt him? That he didn't endanger him? How many nights I sat at hospital bleeding after he bashed me, or to a medical centre?

(Transcript 5 March 2025, p.196 lines 33-37)

1. I do not accept that the provision of professional supervision is sufficient to ameliorate all unacceptable risk for the child in spending time with the father, and it is therefore not safe for the child to experience the benefits (albeit identified by me as limited) that may potentially flow from having a relationship with the father.
2. The assessment to be undertaken is not evenly balanced. This young and vulnerable child is entirely dependent upon his mother to provide for his needs and care. I am not persuaded to make an order which places any additional pressure upon the mother, or which places the child at risk of his mother's distress or decompensation.
3. This child does not know his father and no proposal for the management of the introduction of the father to the child was made. In addition, I have regard to the father's long held critical and derogatory views of the mother and of her parenting and his rejection of the mother and the child's indigeneity. These challenges are compounded by remaining uncertainty as to the father's mental and emotional health.
4. I take into account the mother's very likely distress and fear, even if the time was subject to supervision. The best interests of this child require that his primary carer should remain able to provide for his care and support without the risk that her functioning significantly deteriorates as a result of her apprehension about the child spending time with the father. I have found that the mother's fears about the father are genuine and reasonably based.
5. I find that the possible benefits to the child of spending time with his father even in a supervised setting are overwhelmingly outweighed by the risks to the child in the father acting inappropriately during the supervised time (across a number of domains, not just in a physical sense) and the risks of the mother's increased fear and anxiety about this. The findings I have made as to the risk which the father poses to the mother and child make clear that supervision of the father's time is not sufficient to render that experience safe for the child (or the mother).
6. Taking all of the evidence into account, I am not persuaded that the benefits to the child of such a course can be sufficiently mitigated by the imposition of professional supervision.
7. In making that determination, I am conscious of my obligations under s 60CG of the Act:

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

1. I am satisfied, for the reasons set out previously, that the child should live with the mother and spend no time or have no communication or contact with the father. I have determined that the safety of the child and the mother will only be properly promoted by the making of those orders. There is no relationship foundation between the child and the father to support the commencement of communication orders. The imposition of communication orders in isolation may only serve to confuse the child (given he does not know the father) and likely distress the mother.

Parental responsibility and decision-making responsibility

1. The mother sought orders for sole parental responsibility and decision making for the child. The father sought orders for joint parental responsibility and decision making.
2. In final submissions, counsel for the father made various concessions, including:

The father seeks for joint parental responsibility. I cannot make any positive submissions in relation to joint parental responsibility. There is no evidence supporting a making of such an order. There is a great deal of issues, as detailed between the parties, about their lack of trusting and significant communication difficulties, their inability to make any joint decisions, particularly going into the future, would be entirely impaired having regard to the safety concerns of [Ms Taina], and she has notably made references, a great deal of reference to her fears that she holds, and she certainly does not want to, and indeed, she has an AVO protecting her and all of her children from communicating with the father.

... separated parents need to be able to communicate their views and opinions in a respectful way, and what I've observed in the courtroom does not yield any of that at this particular point. In fact, I hold some concerns about what I observed in the courtroom in relation to these two parents. So there is no evidence before the court that would suggest that these two parents are able to make any joint decisions.

(Transcript 18 June 2025, p.555 line 41 to p.556 line 16)

1. Given the findings I have made as to the father's use of family violence, the fear the mother holds of the father, and acknowledging the concessions made on behalf of the father, I am satisfied the father should not exercise parental responsibility for this child. It is unreasonable to expect the mother to engage in a consultative process with the father, even if that process was shaped by way of further order, and she has indicated that she would be fearful in doing so. I am satisfied that it would be unreasonable to expect the mother to discharge the obligations inherent in s 61CA of the Act, as it would not be safe to do so. I also note that in the circumstances of this case, the mother has made decisions for this child for the last three years, without input from the father, and has done so in a way which is appropriately child focussed, and the child is doing well in his mother's care.
2. I will make orders that the mother shall have sole parental responsibility and decision-making responsibility for the child.
3. These orders also ensure that the child is able to enjoy his Aboriginal culture, by having the support, opportunity and encouragement necessary to do so as facilitated by his mother.

1. The mother and the ICL sought additional restraints upon the father in accordance with s 68B of the Act. I accept that there is a proper basis for making the orders given the findings I have made as to the father's conduct. The father has assaulted the mother on occasions, despite the existence of an ADVO protecting the mother and I have found that the mother is fearful of the father and that there is a reasonable basis for her to hold that fear.
2. I am persuaded that given the father's use of family violence, as found by me, the mother should have such additional protections as can be afforded her, in the interests of facilitating the mother's care of the child.
3. The orders being sought on behalf of the mother will continue to operate beyond the term of the ADVO which is in place for the protection of the mother and the child (but which will expire in 2028).

1. Given the orders I have made as to parental responsibility and decision making, there should be no separate impediments to the mother making decisions, as she determines, that are in the best interests of the child.
2. Any previous restraints made limiting the mother's travel are discharged by the making of final orders.
3. I will make the orders sought by the ICL to remove this child from the Airport Watch List and to permit international travel by the child with the mother. The mother should be at liberty to travel with the child should her circumstances permit that in the future.
4. Similarly, I will make the orders sought about obtaining passports for the child.

1. The father sought an order about the child's birth certificate being changed to include the father's details (Exhibit 1, paragraphs 25 and 26). An order was made about this in 2023, and it is the mother's evidence that the father needed to take steps to complete that process.
2. No submissions were made about these orders sought. Given the orders sought by the father will require him to take steps to seek to effect the change to the child's birth certificate (and does not require input from the mother) and given it will ensure that this aspect of the child's heritage is formally acknowledged, I will make that order.
3. I decline to make the balance of the orders sought by the father.

I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.