Argyros & Jarvi - [2022] FedCFamC1F 65

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Argyros & Jarvi [2022] FedCFamC1F 65

File number: BRC 3735 of 2019

Judgment of: CAREW J

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where the father is found to have perpetrated family violence on the mother and children – Where the father poses an unacceptable risk of harm to the children – Where the risk cannot be ameliorated by supervision – Where the presumption of equal shared parental responsibility does not apply – Where the mother is granted sole parental responsibility – Where the father is restrained from contacting or communicating with the mother and children – Where the mother and children are at liberty to relocate overseas.

LegYtion:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
AMS v AIF (1999) 199 CLR 160

Babcock & Waddell [2019] FamCAFC 129

Baghti & Baghti & Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Johnson & Page (2007) FLC 93-344

Jones v Dunkel (1959) 101 CLR 298

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Zahawi & Rayne [2016] FamCAFC 90

Number of paragraphs: 127

Date of hearing: 15 – 19 November 2021

Place: Brisbane

Counsel for the Applicant: Mr Jordan

Solicitor for the Applicant: Simonidis Steel Lawyers

Counsel for the Respondent: Mr George

Solicitor for the Respondent: Redland Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Dart

Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor
ORDERS

BRC 3735 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ARGYROS

Applicant

AND:
MR JARVI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born … 2013 and Y born … 2015 (“the children”).
2.The children live with the mother.
3.The mother be at liberty to relocate the children’s residence outside of the Commonwealth of Australia to Country Q.
4.The father be restrained from spending any time with or communicating with the children unless initiated by the children or the mother.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and children, the father be restrained from:
(a)Coming into contact or attempting to come into contact (or having another person seek to contact) or communicating with by any means or attempting to communicate with (or having another person attempt to) the mother;
(b)Coming within 500 metres of any residence that the mother or the children reside at from time to time.

6.Pursuant to s 68C of the Family Law Act 1975 (Cth) if a police officer believes, on reasonable grounds, that the father has breached the injunction issued in paragraph 5 herein by causing, or threatening to cause, bodily harm to the protected person or harassing, molesting or stalking that person, then the police officer may arrest the father without warrant.
7.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the children are permitted to have an Australian travel document as defined by s 6 of that Act and are permitted to travel internationally.
8.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in this Order.

NOTATION:
A.It is inappropriate to communicate directly with Chambers other than in exceptional circumstances and any such necessary and exceptional communication must be with the consent of all parties and contemporaneously copied to all parties.
B.All communications, unless otherwise directed, should be via the Registry to …@fcfcoa.gov.au to the attention of the case manager or to the National Enquiry Centre on 1300 352 000.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Argyros & Jarvi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:

Ms Argyros (“the mother”) and Mr Jarvi (“the father”) are in dispute about the mother relocating with their two young children to Country Q in circumstances where the mother opposes the father having any ongoing relationship with the children. The mother recounts a long history of alcohol fuelled family violence perpetrated by the father upon her and the children and contends that this history and the father’s continued excessive use of alcohol creates an unacceptable risk of harm for the children should they have any relationship with him. The mother has made it abundantly clear that even if ordered to do so she could not comply with an order that the children spend time with the father.
The father contends that the mother is a compulsive liar and wherever her evidence is not corroborated by an independent source, his evidence should be preferred. The father nevertheless concedes a history of family violence but just not as bad as alleged by the mother. The father further concedes a history of excessive alcohol use, including over the last three years. Given the mother’s fierce stance against him playing any part in the children’s lives, he contends that the children should live with him and if that occurs he says he will reduce or abstain from consuming alcohol. He argues that the risk of emotional and psychological abuse if the children remain with the mother presents a greater risk of harm to the children than any risk posed by him.
For the reasons which follow I propose to order that the children continue to live with the mother and that she be at liberty to relocate with them to Country Q. The mother will also have sole parental responsibility. The father will be restrained from spending time with or communicating with the children unless initiated by them at some future time.
PROPOSALS OF EACH PARTY
The mother proposes that she be at liberty to relocate with the children to Country Q and that the father spend no time and have no communication with the children. The precise terms of the order sought by her are set out in her Amended Application for Final Orders filed 7 September 2020 save that paragraph 9 (relating to the provision of a copy of these Reasons for Judgment to the police) is not pressed.
While the father’s initial position was for the children to continue to live with the mother in Australia and spend alternate weekends with him (see his Response filed 18 October 2019) he ultimately pressed for a change in the living arrangements given the mother’s intractable opposition to him having anything to do with the children and what he contends is the risk of emotional and psychological harm to them if they remain living with the mother. The precise terms of the order sought by the father is set out in Exhibit 14 (although expressed to be in the alternative).
The Independent Children’s Lawyer (“the ICL”) submits that the only practical option is an order for the children to live with the mother and for her to be at liberty to relocate with them to Country Q. The ICL recommends against making any order about the father spending time with the children i.e. that the order be silent. The ICL supports paragraphs 1, 2, 3, and 8 of the mother’s application (sole parental responsibility, live with the mother, relocation to Country Q and issue of passports for the children).
ISSUES
The parties identified the following issues as requiring determination in these proceedings:
(1)Does the father pose as an unacceptable risk of harm to the children by reason of his alleged history of family violence and alcohol abuse?
(2)What is the likely impact on the mother of an order being made for the father to spend time with the children?
(3)What are the advantages and disadvantages of the children living with the mother in Country Q as opposed to Australia?
(4)What is the likely impact on the children if an order were made that they live with the father?
Prior to considering the issues it will be helpful to set out some background and the legal principles that apply to all parenting cases.
BACKGROUND
The mother is 41 years of age. She moved to Australia from her home in Country Q after commencing a relationship with the father in 2009. She studied at university but has not been employed for many years. The mother has no family in Australia.
The father is 40 years of age. He was born in Australia. He is a tradesperson in the construction industry.
The mother and father met and married in 2009 and had their first child, W (“W”), in 2010. It is apparent that the parents only married because of the pregnancy. Final separation occurred on 1 August 2016.
The parents have two other children. X was born in 2013 and Y was born in 2015. In December 2017 W was diagnosed with a rare cancer and tragically died in 2018.
The father spent very little time with the children after separation and was working interstate for extended periods. He did not see X and Y from the date of W’s funeral in 2018 until several unsuccessful attempts at supervised visits occurred during the period September to October 2020. The father has not seen them since.
The mother commenced proceedings on 1 April 2019.
There have been five final domestic violence protection orders made against the father for the protection of the mother and all bar the first one also included the children as persons protected. The first protection order was made in 2011 for a period of two years and the most recent protection order was made on 2 November 2020 and does not expire 2 November 2025. In 2013 the father was fined for three contraventions of the protection order with no conviction recorded. Also in 2013, the father was placed on a good behaviour bond on his own recognisance of $1,000 for another contravention of the protection order. The father breached his good behaviour bond two days later, and was then placed on probation for another contravention of the protection order and for assaulting or obstructing a police officer. Later that same year, the father breached his probation order and was convicted of a further contravention of the protection order and assaulting or obstructing police. The father was fined $2,200.
The mother has paid legal fees to date of $78,744 and has outstanding fees and disbursements of $28,345. Her estimated legal fees and disbursements for the five day trial are between $40,000 and $50,000.
Due to the existence of a protection order which remains in force until 1 October 2025, the mandatory provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibited cross-examination by the father of the mother. Accordingly, pursuant to the Commonwealth Government legal aid scheme the father was provided with legal representation at the expense of the taxpayer. The scheme is not subject to a means test. The legal fees incurred up to and including the trial are $15,483. The father’s taxable income for 2020 was $113,000. During his oral evidence the father said his current weekly income is about $2,000 after tax. The father’s current child support assessment is $25,546 per annum. He has arrears of $4,630.
WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
A parenting case involving relocation is just another parenting case.[1] There are no special tests that apply. Neither parent has to establish a compelling reason for wishing to live where they want to live.[2] Nor is the enquiry one that is directed to whether or not a parent should be ‘permitted’ to relocate.[3] The best interests of the children remain the paramount though not the sole consideration.[4] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[5]
[1] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[2] AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”).
[3] Babcock & Waddell [2019] FamCAFC 129 at [141]–[142] (Aldridge J), quoting AMS v AIF (1999) 199 CLR 160 at 223, [188] (Kirby J) and at 231–232, [217]–[218] (Hayne J).
[4] AMS v AIF (n 2) at 225, [193].
[5] Ibid.
Every parenting decision requires the application of the relevant sections of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[6]
[6] The Act, s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault, of the child; or
(b)person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act which provides as follows:
Definition of family violence etc.
(1)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[7]), or causes the family member to be fearful.
[7] As defined in the Act (n 6), ss 4(1AB) and 4(1AC).
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[8] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[9] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[10] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[11] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[12] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[13]
[8] Evidence Act 1995 (Cth), s 140.
[9] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[10] Ibid.
[11] M v M (n 9) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[12] Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891, [68].
[13] Ibid at 81,891, [71].

The Full Court of the Family Court of Australia (“the Full Court”) recently reviewed the role of the Court in assessing risk in Bant & Clayton[14] and said from [38]:
[14] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[15] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[15] Ibid.
The paramount issue for the Court, is to determine what parenting order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [16] on each and every factual dispute.[17]
[16] M v M (n 9) at 76.
[17] Baghti & Baghtiand Ors [2015] FamCAFC 71.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these Reasons each subparagraph of each relevant section of Part VII, I have considered all sections as required when making my determination.[18]
[18] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF HIS ALLEGED HISTORY OF FAMILY VIOLENCE AND ALCOHOL ABUSE?
The mother provides a very detailed account of numerous vicious attacks upon her dating back to the parents’ wedding night in 2009. I propose to set out, discuss and make findings about particular incidents but not all of them. As noted earlier in these Reasons (see [28]), when determining whether a risk is unacceptable, it is not necessary to be satisfied on the balance of probabilities about every factual assertion nor is it necessary to make findings on every factual dispute (see [31]). I am nevertheless acutely conscious of the father’s contentions that the mother has lied about particular incidents and most significantly about his alleged repeated attempts to strangle her.
While not denying absolutely that he perpetrated family violence, the father said this during his evidence:
We used to fight like cats and dogs. Just arguing and – there’s no strangulation. There’s no brutal beatings. I – I never hit my wife.
The father nevertheless concedes that the police attended at their home “many times” and that the mother frequently complained about his abuse of her. The father also conceded during cross-examination that at one point, coinciding with the mother’s pregnancy with X, he gave up drinking for six months at the mother’s request, seemingly in acknowledgement that he was drinking too much.
The wedding night
On both parents’ accounts the wedding night was an unhappy event. Within a few months of meeting, the parents got married and they both agree that the impetus for their marriage was the mother’s pregnancy. The father said during his evidence that he “did not really feel trapped” which seems a far cry from being happy about the marriage. The mother contends that although she felt ignored by the father during the wedding reception she was happy to be married and said as much to the father who allegedly responded as follows:
Like I want to be with you, you fucking cunt.
The father denies making this statement. The mother contends that she pleaded with the father not to leave her on the wedding night to go out drinking with his friends. The father concedes that there was an argument and that the mother was probably unhappy with how he had behaved at their wedding, but denies he was proposing to go out with his friends alone. He contends he wanted the mother to join him and his friends. The mother gives the following account of what then occurred:
31. … After arriving in our room, I said to [the father] "as if you're going to leave. We just got married and we have this awesome room". [The father] then became violent with me. I was standing in front of him. He said to me "get out of my way. Fuck off”. He pushed me with both of his hands while I was still dressed in my wedding gown, and I fell to the ground. I recall [the father] was frothing at the mouth. [The father] then stood over the top of me while I was on the ground, and put his [sic] both of his hands around my neck and began to strangle me. I could not breathe. After some time, I cannot recall how long, he let go of me. I gasped for air and began to cry. I thought [the father] was going to kill me. I got up off the ground and ran to the washroom. I locked the door behind me. I waited in the room until [the father] left.
The father denies the mother’s account but conceded during cross-examination that he and the mother did not spend the wedding night in the same bed. His concession was made despite deposing in his trial affidavit that he could not remember whether or not he and the mother slept in the same bed on their wedding night. The concession was forthcoming after the father was taken to the record of his interview with the family report writer which reported his statement that they had slept in separate beds on their wedding night. The father further conceded that he had been drinking and that this caused an argument, as did his wish to continue partying with his friends.
Early 2010 (shortly after W’s birth)
The mother went into labour with W in early 2010 and he was born after an emergency caesarean section. Upon her discharge from hospital, the mother was prescribed oxycodone for pain relief. The mother contends that after returning home she was in immense pain and at about 6.00 or 7.00 pm that night she called out to the father to bring her the medication. When he did not respond she got out of bed and found him drunk in the lounge room. She repeatedly asked him where he had put her medication and contends that she recalls “his eyes kept rolling in the back of his head”. When she leant over him and said – “I need you to get up and get my medicine” – the mother contends that the father raised his foot and kicked her in the stomach with his work boots. The mother describes experiencing immense pain but she just went back to bed.
The father denies that he was drunk and contends that he had not had anything to drink as he had driven the mother and W home from the hospital. He also denies kicking the mother. He rejects the suggestion that he was wearing his work boots the day they brought W home from the hospital.
The following morning the mother contends that the father spoke to her as if nothing had happened the night before. The mother contends that she told the father she had a lump where he had kicked her and that he dismissed her saying – “I’m sure it’s fine. I’m sure it’s not that bad. I’m sure you’re just exaggerating”. When the mother asked where her medication was the father gave her the box but there were only three or four tablets left. The mother contends that she told the father that she needed to go to the doctor because of the lump in her stomach and to get a further prescription. It is unclear whether or not the mother did attend upon a doctor at this time. The father denies what he describes as the mother’s “allegations” and during cross-examination denied having consumed the mother’s medication.
25 September 2010
On 25 September 2010 the mother organised a “meet W day” and invited the father’s family who lived interstate. It appears to be common ground that the father and his family consumed alcohol over the weekend of their visit although the father denies the mother’s allegation that they were drunk for the whole weekend. On the particular day in question the father conceded during cross-examination that “it is possible” that he had a lot to drink but said “I would not say I was drunk”. The mother contends that the father verbally and physically abused the maternal grandmother. The mother’s account is as follows:
46.After [the father] and his family got home, [the father] charged at my mother. He was stumbling as he did so. He yelled at her words to the effect of "it is all your fault ... you're a fucking bitch. I'll kill you. I'll snap your fucking head off like a turkey bone. Let me at her”. He then pushed my mother over and knocked her to the ground. He then stood over her, yelling in her face. I stood there holding [W]. [W] was vomiting. I remember being inconsolable and in tears. After some time, one of [the father’s] relatives pulled him off my mother. I cannot remember who.
The maternal grandmother provides her account of the incident as follows:
12.Out of nowhere, [the father] came into the kitchen and was screaming at me "/ hate you fucking bitch, I will twist your neck and drop you dead like a chicken ". [The father] then physically used both of his hands and placed them around my throat with great force. [The father] had raised me completely off the ground using his strength to do so, slamming me against the wall causing me great pain and discomfort.
13.      While [the father’s] hands were around my throat, I was completely caught off guard unable to tell him to stop.
14.I do not recall how long [the father] held me like that as I was panicking and so scared, but I do remember I could not breathe.
15.      The next thing I remember is [the father’s] uncle, whom I know as [Mr B], pushing [the father] to release me. I then remember [Mr B] telling [the father] to "stop".
16.      While trying to regain my breath, I saw [the father] storm out towards the front door pushing [the mother] violently out of his way with one hand causing [the mother] to stumble with [W] still in her arms. [W] was vomiting at the time.
17.      Then I heard banging noises by the front door and [the father] screaming foul language.
18.      [The father’s] mother, [Ms V], then approached me and stated words to the effect of "Oh it's not too bad, he is just drunk''.
19.      Approximately ten minutes later, [the father’s] father, [Mr T], approached me and stated words to the effect of "[Ms R], you need to go and talk to [the mother] and tell her she needs to stop telling [the father] to stop drinking. [the father] is a man and that is the way Australia is".
The father denies “the allegation in respect of the acts of violence”. He nevertheless concedes he probably swore at the maternal grandmother including “possibly” calling her a “cunt”. Although the father contends his mother, father, brother and uncle were all present on this occasion, not one of them were called as witnesses in his case and no reasonable explanation was forthcoming for his failure to do so. This is even more remarkable when the father says that his mother “would not have said ‘Oh it’s not too bad, he is just drunk’”. If the father’s account of this incident were correct, at least one member of his family would be expected to have been able to corroborate his version as to the absence of violence towards the maternal grandmother and what was said and not said.
25 August 2011
The mother contends that another incident occurred on 25 August 2011 which she describes as follows:
56.On 25 August 2011, [the father] came home from work drunk. He was angry. I could see that he had urinated on himself. He began to throw things around the house. He also kicked the baby gate and smashed glasses stored in the kitchen. He was yelling and screaming as he did so. He was frothing from the mouth. He came out of the kitchen and pushed me over the lounge. He pushed me so violently that the lounge tipped over onto its side. [The father] then jumped over the lounge, stood over me, and put his hands around throat and started strangling me. [The father] strangled me for longer than he had on the previous occasions. I thought I was going to die. The thought kept running through my head. I could not breathe. After he let go, I ran upstairs. [The father] could not follow me as he was too drunk to get up the stairs.
57.I called the police and told them what had just happened. I told them that I thought [the father] was going to kill me. I turned the videotape function on my phone after I hung up to 000. I went back downstairs and saw [the father] go outside. I saw him kick our dog when the dog licked his hands as he walked past.
58.[The father] then came back inside and went into the kitchen. He began to violently vomit into the sink. After being sick, [the father] came up to me and grabbed my phone off me. He then threw it onto the floor and stomped on it with his boots.
59.Fortunately, the police arrived not long after. Soon as [the father] saw the police, he gave me a look like he was going to kill me. He shook his head at me as if to say "don't say anything". In fear, I did not tell the police anything that had happened.
(As per the original)
The mother’s contemporaneous diary note of the 25 August 2011 refers to the father strangling her.
The police records for this incident indicate that when the mother called 000 she said the father strangled her. Police attended at about 9.05 pm and when they spoke to the mother she denied the father had attempted to strangle her and police “could not observe any marks on or around the neck” of the mother. The mother is reported to have said that she called the police because the father was heavily intoxicated; that he was using insulting language towards her e.g. calling her a “fuckwit”; throwing objects about the home and pushing furniture and pushing her about”. Police observed that a child’s safety gate was lying on the floor in the kitchen. The police records note that the mother tried to play down the incident and that she said she loved her husband and that it was only his drinking that made him commit domestic violence. The mother said she did not want the father in trouble with the police and said she did not want police to apply for a protection order. When police spoke to the father, he was noted to be intoxicated and conceded only that he and the mother had had an argument. A summary of outcome included in police records states the following:
The resp. behaviour is more than likely due to consuming large amounts of alcohol in a short amount of time. Police have now attended this address on 2 occasions in the last 12 months. The agg has no relatives living in Australia and the resp is from interstate. The agg states they have no friends living in [C Town]. The resp is employed in a good paying job and has no criminal history, A DVO issued by the court and a referral to [U Services] by police would make it clear to the resp that he is now required to address his offending behaviour towards the agg. and to get help for a percieved drinking problem.
(As per the original]
As a result of an application by the police, a protection order issued on or about 31 August 2011 for the protection of the mother. The protection order was for two years.
While denying the allegations made by the mother, the father concedes that the mother did videotape him on her phone and that he grabbed her phone and threw it, but denies that he “stomped” on it. He also made the following concessions during cross-examination:
(a)He remembers an argument where the lounge was tipped over but he does not remember how it was tipped over;
(b)He has broken one phone (not the three alleged by the mother) and believes he threw it in the backyard;
(c)He was aware that the mother had called the police on this occasion and police attended many times;
(d)He definitely had a drinking problem at this time;
(e)He smoked marijuana on a daily basis until about 2015 and continues to use it although “not very often”;
(f)The mother asked him to leave the house on many occasions.

Despite the above concessions the father contends that he had no idea why the mother made an appointment for marriage counselling later that year.
15 April 2012
On 15 April 2012 the mother describes another incident as follows:
76.On 15 April 2012, [the father] attacked me over nothing. He pushed me and started to strangle me. My mother was still with us at the time, and she witnessed [the father’s] assault. Her immediate reaction was to grab [W] and to run to our neighbour's house. She called the police. [The father] must have saw my mother run to the neighbour's house, and immediately stopped strangling me. He then said to me to not talk to the police or to tell them anything, and that he was going to kill me if I did.
The maternal grandmother’s account of this incident is as follows:
30. On 15 April 2012, [the father] had been hostile toward [the mother] all day, and was verbally and emotional abusing her, calling her "good for nothing fat ugly cow" and a "dick head", and saying to her to "get out of my house before I kill you".
31. He also abused me, saying "what are you looking at stupid […] maid” and "you will see when I finish with her''. [The father] appeared so out of it that his face seemed to be swollen, his eyes twitched out of control, the veins on his forehead bulged, and bubbles came out of his mouth.
32. Later that day, [the father] took [the mother] upstairs and the screaming continued. At one point, I heard loud noises and decided to run upstairs. Upstairs, I saw [the father] with his construction boots on kicking [the mother] who was on the floor. I screamed and yelled "stop it [the father]!" [The father] then stopped kicking [the mother] and chased me downstairs. He then left the house. [The mother], [W] and I waited out the front for a long time for the police to arrive. The police did eventually arrive, but by then [the father] was long gone.
In response to these allegations, the father makes a simple denial of the mother’s account set out above but in relation to the maternal grandmother’s account the father responds as follows:
227. In relation to paragraph 30, [the mother] and I may have an argument but I deny saying "get out of my house before I kill you".
228.In relation to paragraph 31, I deny saying "what are you looking at stupid […] maid" and "you will see when I finish with her".
229. In relation to paragraph 32, I deny kicking [the mother] with my construction boots on when she was on the floor.
It is notable that the father does not dispute calling the mother a “good for nothing fat ugly cow” and a “dickhead”. He does not deny the maternal grandmother’s description of his appearance. His denial about kicking the mother is carefully worded. It is not an outright denial. He does not deny the maternal grandmother’s evidence that she screamed at him to stop and that he then stopped kicking the mother. He does not deny chasing the maternal grandmother downstairs. When cross-examined about this incident the father said he could not recall attacking the mother or attempting to strangle her, nor could he recall the maternal grandmother grabbing W and running to a neighbour’s house. He conceded it might have happened, and when asked if he had ever seen the maternal grandmother running to another house with W and the police arriving thereafter he agreed that he had.
The police records confirm their attendance at the parent’s home on 15 April 2012 after being contacted by the maternal grandmother. The records note that both the mother and maternal grandmother played down the seriousness of the incident. The mother stated that the maternal grandmother had panicked and exaggerated the details of the situation when she contacted police. The maternal grandmother continually apologised to police and was noted to be “quite emotional” and said to police that she was “worried her son-in-law may possibly take her 2 year old grandchild off her daughter if the matter went any further” and that her daughter was not an Australian citizen. The maternal grandmother was further noted to be “reluctant and hesitant with providing Police with any details regarding the incident. She denied any domestic violence had taken place between her daughter and son-in-law”. No damage to property or injuries to the mother were noted by police. The father was not at the premises when police arrived.
Early 2013
In 2013, shortly after X’s birth, the mother required transportation to hospital by ambulance due to a fever and pain she was experiencing. The father concedes that the paramedics called the police as the father indicated his intention to drive with the children in the car while intoxicated. The police records note the father’s intoxication and belligerence and further that he was not only intending to drive while intoxicated but was disqualified from driving at the time.
April 2013
In April 2013, police again attended the parent’s home in response to a domestic violence incident which the mother describes as follows:
83.In April 2013, my mother was still in Australia visiting us from [Country Q] for [X]'s birth. [The father] was fuming about something. I do not know what about. We had just arrived home, and after walking through the door, he turned on me. [The father] went into a rage and began destroying the house. He was breaking glasses and tipping furniture over. In the process, [the father] strangled me and threw me to the floor. He then kicked me. I then stood up. [The father] was pointing at me, [W] and [X], and screaming. He was yelling at us to get out of the house. We left the house and walked backwards up the driveway, so that we could see [the father] (rather than have our backs to him). [The father] followed us. [W] was crying and said that he did not have any shoes on. [The father] overheard this, bent down into [W]'s face and screamed "I don't care". We continued to walk up the driveway, to across the road. Once we were off the property, [the father] walked back to the house. We stood across the road and watched [the father] drag the bins up to the front door of the house and begin throwing all of our belongings into the bin. I later found out that some of the things [the father] put in the bin were irreplaceable, including [W]'s first lock of hair, his baby books, and his hand prints.
The maternal grandmother provides an account of this incident as follows:
43.In April 2013, [the father] had another of his violent outbursts. At some point, we all ran outside the house to escape. [The father] followed us. [W] had no shoes on at the time and said to [the father] "dad I have no shoes". [The father] then screamed at [W] "I don't care" and kept swearing and screaming "get out of my house you fucking […]".
44. We walked up the driveway together. [The father] followed. After leaving us, [the father] went back to the house and began to throw all my belongings and the presents I had brought the children from [Country Q] out the front door.
45. When the police arrived, he began to fight with them and said that was in "his" house and they (the police) were trespassing on "his" property. The police arrested him.
The police records note the mother’s complaint about the father drinking extensively and that he has “gone off … abusing her, intimidating her by screaming within an inch of her face”, calling her a “fucking pig, telling her to fuck off and to get fucked”. She further complained that he continued his verbal tirade on the maternal grandmother, and then collected property belonging to the maternal grandmother and herself and the children and proceeded to throw it in the rubbish bin. When the police arrived the father was still throwing items in the rubbish bin. The mother made no complaint of any physical assault. She said that the father was a different person when he was not drunk. The police records note that the father was “grossly affected by alcohol” and that the inside of the house “appeared to be trashed”. The father conceded that he had thrown the maternal grandmother’s property around the house and damaged it. The father told police that if they continued to talk to him about domestic violence he would fight them. The father conceded during cross-examination that he was “rude, obnoxious and aggressive towards police”. The father was arrested and placed in handcuffs. The father started hitting the window of the police vehicle with the handcuffs and head butting the vehicle. The children were noted by police to be present and upset. Neighbours told police they had heard the father yelling abuse at the mother. The maternal grandmother told police that the father had made threats to kill her. The mother said she had not heard those threats.
The father conceded during cross-examination that he was grossly affected by alcohol at the time and did not remember much about the incident. As a consequence of this incident a protection order was made that included a condition prohibiting the father from consuming alcohol or being intoxicated while at the former matrimonial home.
6 July 2013
On 6 July 2013 the police again attended at the parent’s residence as a result of a domestic violence complaint. In contravention of the conditions of the protection order the father had consumed alcohol at the residence and police records indicate that the father had a blood alcohol level of 0.206. The police records further note that domestic violence incidents at the home were “frequent” and occurred in view or hearing of the children.
About a week later there was another incident involving the father allegedly pushing, kicking and spitting at the mother. The mother’s brother collected the mother and the children about 10.00 pm that evening. They were waiting on the street for him with their bags when he arrived. The mother’s brother describes the scene upon his arrival:
10.I could see that [the father] and [the mother] were both distraught as I pulled into their driveway. I got out of the car and [the mother] and the kids got in. [The father] started to cry and so I went up to him and hugged him. I noticed he smelt strongly of alcohol. The smell was pungent and overwhelming. I reassured him that everything was going to be okay and he kept telling me that he had really fucked up several times. I told him to get some rest and to call in the morning. I left him at the house and drove off with [the mother], [W] and [X]. [The mother] and the kids stayed with my family and me for the next week or two.
19 December 2013
On 19 December 2013 the police responded to a further incident. The father admitted to police that he had been drinking but refused to submit to a breath test. He pushed passed police in an attempt to leave the residence. The father was arrested and then lashed out and violently struggled with police in an attempt to escape. The father was handcuffed and forced to lie on the ground. The children were in view or hearing of the incident and were observed by police to be scared. The father conceded during cross-examination that he was unable to contain his behaviour despite his children being present. The protection order was varied to include an ouster order prohibiting the father’s presence at the home for a period of two years.
The mother contends that the father repeatedly breached the ouster order by turning up at her home and taunted her with the statement that he would be gone by the time police arrived.
The father conceded during cross-examination that during 2013 he hid bottles of alcohol in various places around the home so that he could drink undetected. He also conceded having three convictions for drink driving offences. On the first occasion on 7 February 2013, the father’s breath test revealed an alcohol content of 0.108 (i.e. over twice the legal limit). On the second occasion on 5 April 2013 his breath test revealed an alcohol content of 0.164 (i.e. over three times the legal limit). The father was also disqualified from driving at the time. On the third occasion the father’s breath test revealed an alcohol content of 0.181 (i.e. over three times the legal limit). Again the father was in charge of a motor vehicle not only while intoxicated but also while disqualified.
Prior to these offences the father had consulted a Dr D on 9 February 2013, who advised the father to go into rehabilitation and to contact the S Health Service (“SHS”). The father was further advised to commence medication to treat his alcohol addiction. The father did not do so and conceded during cross-examination that he has never done anything to treat his alcohol addiction.
August 2016
On 28 August 2016 the mother contends that she tried to escape the home with the children but that the father rushed to the car faster than she could drive off. The mother then describes an incident at the F Hotel where they had gone for a buffet breakfast at 8.00 am. The mother contends that the father was still drunk from the night before and could not walk to the buffet to get his food. The father grabbed food off the children’s plates with his bare hands and then threw a jug of water at the mother which cut her. The mother contends that she grabbed the children and ran to the car and drove to the police station. The mother complains that the police did not take her seriously and suggested she sleep in her car until she could get an ouster order from the local court, the previous one having expired on 19 December 2015.
In response to the mother’s account of this incident, the father denies that he was drunk and contends that the family simply went out to breakfast. The father denies that he threw a jug of water at the mother but nevertheless concedes that he “spilt water” and “[the mother] was wet”. He contends that the mother became angry and left with the children.
The mother applied for a further protection order (including an ouster order) on 29 August 2016. The protection order (including an ouster order) was made. The particulars of violence contained in her application at that time include an allegation that the father had made threats including to burn the house down, take the children from school and vandalise the property. The mother also included particulars of the vile verbal abuse allegedly directed at her and the children including the following:
Make that fucken baby stop crying you stupid bitch …
[W] is a little fucken shit cunt. Make him stop …
I can’t fucken stand [X]’s screams …
(As per the original)
The mother also described the father’s habit of urinating on himself when drunk. The mother contends that when she returned from court on 29 August 2016 the house was in disarray and that she had to dispose of couches, chairs and mattresses that had been urinated on.
The mother’s friend, Ms E, deposes to the mother contacting her in August 2016 in a distressed state saying she needed somewhere to stay because she feared for her children’s safety from the father. Ms E says that the mother told her she had been to police and they suggested she sleep in her car and go to court the following morning to get an ouster order. Ms E observed that the mother and children appeared very anxious and distressed and says that W was so upset that he passed a bowel motion behind some furniture. Further, she says that the mother was so fearful of the father seeing her car that she parked it at the back of Ms E’s house and covered in with branches.
On 29 August 2016 the police attended at the residence and their records include the following information:
… [The father] was highly intoxicated and it appeared [the father] was going to be his usual belligerent self however stated that he would leave without a fight. [The father] was offered half an hour to get some things together. At this point [the father] called police fuckers and told them to get out of his house. [The father] was told that that sort of behaviour would not be tolerated. [The father] then continued to look for his belongings at the same time swearing at police and telling them to get out of his house as there was no order. [The father] then threatened [Constable G] saying “I would take you out in a second". Due to this threat [Constable G] has then restrained [the father] on the ground before standing him up and escorting him off the property. As [the father] was walking away from his property he continued to swear at police calling them fucking cunts. At this time there were members of the public nearby. [The father] was warned that if he did not cease the offensive language he would be issued with a public nuisance … [The father] once again called police fucking cunts.
[The father] was then arrested for public nuisance and transported to the … police station were he was provided advice about his behaviour and offered help with his alcohol issues. ..
(As per the original)
During cross-examination, the father conceded the particulars of his behaviour as contained in police records and also that he was offered help to address his alcohol abuse. The father did not accept the offer.
2 April 2020
On 2 April 2020 the father’s former solicitors made a complaint to police about the father’s threats. After initially denying that he had made any threats, the father eventually conceded during cross-examination that after his solicitor withdrew his professional services, he said the following to a staff member at the lawyer’s office:
Tell [lawyer] he is in a lot of trouble. Tell [lawyer] he is a cunt. I am going to come up and sort [lawyer] out.
The father sought to excuse his threats and language by stating that he was “very angry at the time”. The father concedes that he spoke to a staff member and a senior solicitor at the firm. At least one of the conversations was recorded and police records confirm that the father said:
I want to turn up and smack his face in. If you send me a bill, I will go and see [redacted].
12 September 2020
Between 12 September 2020 and 5 December 2020 there were five unsuccessful attempts for the father to spend time with the children.
On the first visit the supervisor noted that the father - “smelt slightly of alcohol yet did not appear to be intoxicated”. X was particularly resistant to seeing the father and at one point began to scream and threw herself on the floor of her mother’s car. Despite the supervisor’s encouragement X refused to see the father, and the mother objected to the children being separated after Y indicated a preparedness to take the supervisor’s hand and enter the centre.
26 September 2020
The mother arranged for her friend, Ms E, to take the children on the next occasion, namely, 26 September 2020. Both children were very resistant to seeing the father although the supervisor opined that Y was following X’s lead. Eventually the children were persuaded to enter the Centre. The children were dressed in long pants, jumpers, gloves and full face masks (reminiscent of masks worn at the Carnival of Venice i.e. painted and decorated face masks). When X saw the father she started to scream and ran out of the Centre. Both children said they did not want the father to see them and they did not want to see him. The father remained calm and spoke to the children. X was noted to “de-escalate” very quickly. Y giggled at one point. Neither child would remove their masks. The visit ended shortly thereafter. I note that the school report for X in semester 2, 2020 refers to her designing and making a mask.
10 October 2020
On 10 October 2020 the notes prepared by the supervisor state that when speaking to the father she - “smelt an odour of alcohol”. The father conceded during cross-examination that it is likely that the supervisor did smell alcohol on him but said it was from the day before. Upon arrival, the children were very agitated and refused to see the father. They were again wearing their face masks, gloves, long sleeve tops and long pants despite the weather being very warm. They were persuaded to enter the Centre but X immediately yelled – “I don’t want to see him! I want to leave! I don’t want to be here!” Y said the same. When the father came to the top of the stairs, X screamed – “I don’t want to see you! I don’t want to be here!” X became more aggressive and continued to yell. The visit was aborted.
Additional matters

Ms H has been a neighbour of the mother’s for the past 11 years. Ms H deposes to having heard the father yell at the mother on the night they moved into the property and says that since that night the mother has “essentially used my house as a safe house”. She recalls the maternal grandmother rushing over to her home with W and calling the police from her property and thereafter seeing the police arrive. She recounts another occasion when she saw the mother walking up her driveway with a small baby in her arms and W by her side with the father following closely behind, “essentially standing over [the mother] as she walked … and yelling at her”. Ms H says that she could hear the father yelling from across the road and heard W asking the father to “please stop, daddy”. On this occasion she called the police. Ms H says that on one occasion the father told her she had better be careful and that he “will cut my break [sic] lines”. Ms H recalls an occasion in October 2021 when she saw the mother get out of her car visibly upset and shaken. When asked if she was okay, the mother told Ms H that she had just seen the father at the cemetery and that he had just driven passed her and waved. Finally, Ms H says that a few weeks prior to swearing her affidavit (her affidavit was sworn on 15 October 2021) her husband received a phone call from the father which she overheard. She says that the father was abusive and sounded drunk.
On 6 November 2019 an order was made by the Federal Circuit Court of Australia (as that court was then known) requiring the father to register for alcohol counselling. The father did not do so. The father was further ordered to submit to a carbohydrate deficient transferrin (“CDT”) CDT test by 15 November 2019. The father did not do so.
On 24 November 2020 the father submitted to a CDT test which indicated “probable ongoing excessive alcohol use”. When the father discussed the results with a Dr J, the father became annoyed and the doctor called in the practice manager.
On 4 January 2021 police officers visited the father at his home in relation to allegations by the mother of historical assaults. The father initially hid from police but when told he could be seen, he presented himself. The police records note that the father “smelt strongly of alcohol and his eyes are bloodshot”.
On 10 June 2021 the father made two telephone calls to the K Company after hours service centre. A report was made to police and recordings of the calls were provided to police. The police records note that the father sounded under the influence of alcohol and demanded the number of the manager. The father swore during the conversation but apologised when asked not to speak in that manner. The manager informed the police that earlier in the year he had received a phone call from the father in which he had said “the bitch left me with nothing” when referring to the mother.
Conclusion about whether or not the father poses an unacceptable risk of harm
The father seeks to portray himself as a victim, and accuses the mother of being a compulsive liar. His main focus in the trial was to seek to discredit the mother’s allegations of physical violence but, in my view, the evidence of the father perpetrating family violence upon the mother, both physical and verbal, is overwhelming. I find that the mother endured the father’s appalling abuse and denigration for years. Much of that abuse occurred in the presence of the children. At times the violence was directed at the children and I have no doubt that it caused them to be fearful.
The evidence from police records corroborate the father’s belligerent, aggressive and violent tendencies. He has assaulted police, resisted arrest, and issued threats of harm to police, his former solicitor and a neighbour. Further, the maternal grandmother was herself a victim of a vicious attack by the father on 5 September 2010. I accept the maternal grandmother’s evidence of this attack entirely. The father did not call, what he contends would have been, exculpatory evidence from his family members. His failure to do so causes me to draw an adverse inference i.e. their evidence would not have assisted his case.[19]
[19] Jones v Dunkel (1959) 101 CLR 298.
I accept the mother’s account of the wedding night when the father pushed her and began to strangle her. The mother gave a detailed and particularised account of that incident and events leading up to it. The father’s concessions on key points e.g. that they argued about his drinking and behaviour at the wedding, argued about going out, and did not spend the night together, lends weight in my view to the mother’s account.
I find that the father attempted to strangle the mother on 25 August 2011. The mother made a contemporaneous diary note of the father strangling her on 25 August 2011. When she called police she told them that he was strangling her. Her denial of attempted strangulation when police arrived was likely to be for a number of reasons: she loved the father and did not want to get him into serious trouble with police, she was scared of him, and she felt trapped in Australia with a baby and no permanent rights of residence or rights to social security. Police noted the mother’s attempt to minimise the incident. Although the police could not see any injury to the mother’s neck, I do not find that this negates her allegation. There is no evidence of what the mother was wearing such that any injury would necessarily have been apparent. There is no medical evidence to indicate how long it would take for bruising or marks to appear or even if the method used by the father would have left marks.
I find that the father kicked the mother and attempted to strangle her on 15 April 2012. The maternal grandmother was a witness to part of the attack and the father concedes the possibility of her running from the house with baby W in her arms. I find that the father verbally abused the mother calling her a “good for nothing fat ugly cow” and a “dickhead”. I accept the mother’s evidence that she did not disclose details of the attack because the father had threatened to kill her. The police records note the attempt by the highly emotional maternal grandmother to play down the seriousness of the violence telling police that she was scared the father would take the baby if the matter went any further.
I find that in April 2013 the father engaged in a drunken violent rampage that included pushing the mother and attempting to strangle her in front of the terrified children. Neighbours heard the abuse and the maternal grandmother witnessed part of the violent outburst. Police records corroborate the father’s extreme intoxication, the trashed home and the father’s abuse and violence towards the police. Ms H, a neighbour of the mother’s, witnessed what is likely to have been this incident. She describes seeing the mother walking up her driveway with a small baby in her arms and W by her side. The father was following closely behind, standing over the mother and was yelling at the mother. She heard W say to the father – “please stop daddy”. Ms H was understandably very distressed and called the police. She observed the father throwing things into the bin. Ms H gave unchallenged evidence that the father had threatened her saying she had better be careful – “he will cut my break [sic] lines”. The father made similar threats to the mother. The mother had every reason to be fearful of the father killing her.
I accept the mother’s evidence that on a date about one week after 6 July 2013, the father pushed, kicked and spat at her. The mother’s brother came to the rescue on this occasion and found the mother and the children waiting for him on the footpath with their bags packed. The father admitted to the mother’s brother that he had “really fucked up”. The mother and children remained with the brother for about two weeks.
I accept the mother’s evidence that on 28 August 2016 the father was drunk and threw a jug of water at her in front of the children. The father was either still intoxicated or again intoxicated the following day when police attended and the father threatened police and was arrested.
I accept the mother’s evidence that despite obtaining an ouster order the father continued to attend her home and taunted her that he would be gone by the time police arrived. The father conceded during cross-examination that at one point the mother moved into a hotel with the children and told him he had to leave the house permanently.
I find that the father minimises his violence and alcohol abuse and has ignored repeated advice, including from police and his doctors to go into rehabilitation. The father has also failed to comply with Court orders that he undergo “alcohol counselling” (order made 6 November 2019) and file a report from his counsellor confirming he has successfully undertaken the program (order made 10 August 2020). The letter from the L Program dated 11 January 2021 does not assist the father. The letter is brief and identifies that the father identified his goal as being to attend six group support sessions which he did during the period 5 August 2020 and 16 September 2020.
Further, the father failed to comply with Court orders to provide results of Carbohydrate Deficient Test (“CDT”) and Liver Function Test to the mother by 15 November 2019 (order made 6 November 2019) and to undertake CDT liver function test within 24 hours of a request from the ICL.
The three CDT test results in evidence, including one obtained during the trial, demonstrate that the father continues to consume alcohol to excess.
The father has had years to turn his life around. He has done nothing. He has demonstrated no remorse. Indeed the father went on the attack, accusing the mother of being a compulsive liar. The father latched on to evidence given by Dr M about the discrepancy between what the mother said occurred at the cemetery on 10 October 2021 and what actually happened, as depicted in the father’s video recording of the incident. The mother gives the following account of the incident:
147.On 10 October 2021, at approximately 9:15am, I ran into [the father] at the [C Town Cemetery]. I usually avoid being at [C Town] on Sundays to avoid the risk of running into [the father], but on this particular Sunday, I had to be at home to work on documents for these proceedings. So that I had the whole day free of distractions, that morning, I dropped the girls off to a friend's house for them to spend the day. While dropping them off, the girls and their friend's (being my friend's children) picked some flowers for [W]'s grave.
148.After leaving my friend's house, and on the way home. I went to [W]'s grave to quickly deliver the flowers. As I was leaving and walking towards the gate to exit, I saw [the father] standing behind the bushes, videotaping me. He was yelling at me but I cannot remember what he was saying. He then moved to in front of the gate so as to block me in. I froze and immediately began to cry. My heart was racing and I feared the worst; that he was going to kill me. I said nothing to him. I could not bring myself to speak. He eventually moved away from the gate and got in his car. I then walked out of the gate and in the other direction along the nature strip. [The father] then drove off abruptly. After he was out of sight, I walked over to my car, got in and drove off heading home….
The father’s video recording of the encounter bears no resemblance to the mother’s account. The father was not hiding behind bushes; he was not yelling at the mother; the mother did not freeze; the father did not move in front of the gate; the mother did not appear to be crying. When asked to explain the extraordinary discrepancy between what actually occurred and her evidence, the mother said the following:
Well, I felt startled, and it probably triggered a lot of memories of him asserting himself over me. Like I said, I didn’t intend to see him that day. It’s quiet and peaceful there – I can hear just the quietest sounds. For him to be booming his voice, it was very startling for me. But I do know that it wasn’t shouting from what it looked like on that video.
During cross-examination, Dr M offered an explanation for the inaccurate account of the incident given by the mother, namely, that it may indicate that she suffers from pseudo logia fantastica (i.e. compulsive lying). Unfortunately, Dr M gave his evidence after the mother’s treating psychologist, Dr N, and treating psychiatrist, Dr P, gave their evidence.
Dr N and Dr P each opined that the mother suffers from post-traumatic stress disorder (“PTSD”) as a consequence of the years of family violence to which she was subjected by the father. I accept their opinions that the mother is likely to suffer from PTSD. Dr N has been treating the mother since 2017 and Dr P has been treating the mother since the beginning of 2021. They are in a far better position in my view to assess the mother’s psychiatric condition than Dr M who saw the mother for a one off assessment. Dr M did not consider that the mother suffered from a mental illness or psychiatric disease that can be treated. In his opinion, the mother “lives with the emotional and psychological sequalae of her life experiences and decisions” which he said “could be called a syndrome of diagnosed existential angst that requires long term support”. When asked about Dr M’s opinion Dr P said the following:
… I can’t speculate what [Dr M] meant, but I understand that many patients or clients who are assessed may at the time defy traditional classification as per the DSM or the ICD. However, I would add two points, that all the DSM diagnoses are essentially syndromes in that they are clusters of symptoms that are sort of ill-defined and not tangible, and that I have seen [the mother] for many hours as a treating psychiatrist and I probably have a little bit more access to her accurate mental state than a once off assessment.
…
I’ve never used that exact phrase, but we do describe existential difficulties or, as I mentioned, situations that defy traditional classification.
When the family report writer, Dr O, was asked for her opinion on the mother’s evidence (relating to the incident on 10 October 2021), which bore no resemblance to reality, she opined as follows:
I understand that it would be in line with PTSD that they may have flashbacks from a previous encounter and that they may feel fearful. Definitely. That’s often reported. Even if the situation is not fearful or fear-provoking, and they may feel anxious or perhaps feel like they’re screaming in their head. Those sorts of things are really typical of someone with PTSD. Changing the lived experience to fear – a narrative that is internal is not necessarily a symptom of PTSD but more of a personality trait. And there is a pattern of that happening with the mother throughout the information I’ve read.
Dr O was asked for an example of her latter statement (set out in the preceding paragraph) and she said:
The hospital. I think the hospital – in the behaviours at the hospital. I think that was another similar situation, where the mother reported the father behaving in an angry and aggressive manner and the staff asking him to leave, repeatedly. But the hospital report doesn’t say that that happened, and the father’s [sic] doesn’t say that that happened. That would be another indication.
I reject the contention that because the mother gave an inaccurate account of the incident on 10 October 2021 that she is a compulsive liar. The mother knew the father was video recording her and therefore knew that she would be caught out in a lie. In my view, it is more likely that when the mother observed the father unexpectedly at the cemetery it triggered internal feelings and memories of past violence and that the mother was describing what she believed had occurred. This may also explain other discrepancies in her evidence e.g. her perceptions of the father’s behaviours at the hospital.
I conclude that the father poses an unacceptable risk of harm to the children by reason of his violence and alcohol addiction.
WHAT IS THE LIKELY IMPACT ON THE MOTHER OF AN ORDER BEING MADE FOR THE FATHER TO SPEND TIME WITH THE CHILDREN?
The mother would be extremely concerned for the children’s safety if an order were made for the children to spend time with the father. In my view, her concerns would be entirely justified. The father has a long history of alcohol addiction and violence, not only to the mother but also to third parties. The father has done nothing to address his alcohol addiction and largely minimises both his addiction and his violence. The mother was adamant that she could not comply with an order for the children to spend time with the father.
Dr N has been the therapist for both the mother and X since 2017. In her view the mother suffers from PTSD and a major depressive disorder (“MDD”) which is being treated with anti-depressants prescribed by her general medical practitioner. In her opinion, any contact between the mother and the father will lead to further deterioration of the mother’s psychological functioning. I accept her opinion.
Dr P commenced regular treatment of the mother on 4 March 2021. In her opinion, the mother meets the criteria for a diagnosis of PTSD noting that her symptoms include “flashback phenomena, avoidance behaviours (local area sites), hypervigilant and hyperarousal, disturbed sleep”. While such a condition is described by Dr P as “chronic” she opined that “[t]he prognosis is determined by both the availability of treatments, but also the removal of the offending circumstance. Prognosis will be determined by the ruling as to whether [the mother] is forced to remain in contact with [the father]”.
WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF THE CHILDREN LIVING WITH THE MOTHER IN COUNTRY Q AS OPPOSED TO AUSTRALIA?
While the children have a home and settled life in Australia, the mother has no ready access to family support in Australia. The children are familiar with Country Q having spent time there in the past.
The children participate in distance education supervised by the mother and Y has just completed grade one and X has just completed grade three. The children are progressing well academically. The children attend onsite sports’ days and have home visits by the school several times each year. The children also attend weekly tutoring at an independent organisation for English and Mathematics. The children attend church weekly and Sunday school for religious instruction. The children are engaged in numerous extracurricular activities including sports and language school.
Dr O, the family report writer, opined that the children presented as “physically healthy, bright and engaging young girls” when she saw them in October 2021. X has been attending counselling with Dr N since 2017 and has been diagnosed with PTSD, separation anxiety, grief and depression.
The mother has endured years of abuse from the father and lives in fear of him. If the mother chooses to relocate with the children to Country Q she would have family support which in turn would be likely to improve not only her emotional wellbeing but also her financial wellbeing. With family to support the children, she would have greater prospects of obtaining employment.
Despite the father earning $2,000 per week after tax he remains in arrears with his child support. The father has tried to reduce his child support responsibility and on 5 April 2021 informed the Child Support Agency that the mother had received $185,000 cash which she had failed to disclose to Child Support. This allegation was untrue. The mother did not receive $185,000 cash. She received a superannuation split. When asked about a letter sent to the Child Support Agency containing this false information the father contended that his parents had written the letter and that he did not see it before it was sent. He said he did not remember signing the letter. He nevertheless conceded that the signature on the letter looked like his signature and that at the very least - “it was spoken about on the phone, what I was going to say in the letter”. The letter is written in the first person e.g. [the mother] receives child support from me. The father’s attempt to distance himself from the false information provided to the Child Support Agency was unconvincing and further damaged his credibility.

If I were minded to order that the father spend time with the children then an obvious disadvantage of a relocation to Country Q, would be the inability for regular time between the father and the children. Unless an order is made for the father to spend time with the children, it will make little difference whether the children continue to live in Australia or relocate to Country Q.
In Dr O’s opinion, the children “require a life free from conflict”. It seems more likely that such a life would be experienced by them if they were to relocate with the mother to Country Q in accordance with the mother’s long held wishes.
WHAT IS THE LIKELY IMPACT ON THE CHILDREN IF AN ORDER WERE MADE THAT THEY LIVE WITH THE FATHER?
Quite apart from my findings about risk, the father is simply not a candidate for the children to be living with him. He has spent no time with the children for over three years and prior to that his time with them after separation was limited. The father invites the Court to accept that he would give up drinking if the children lived with him. I have absolutely no faith that the father would do so. He has had ample opportunity to demonstrate that likelihood and has failed to do so.
A move to live with the father would be an extremely traumatic experience for the children, particularly X. It would also involve not only a change in homes and primary carers but also removal from the community in which they have lived for the last several years and in which they are quite involved through church and extracurricular activities.
Even if I were minded to order a change in the living arrangements for the children, I can foresee no practical way for such an order to be implemented. The children have largely refused to see the father. Despite the best efforts of the supervisors in late 2020, they were unable to achieve a successful encounter between the father and the children, even in the absence of the mother. Dr O had a little more success when she supervised a visit between the father and the children on 19 October 2021 but even then, X was at times very distressed. Dr O noted that at one point X “started to whimper” and appeared “both stressed and confused”. After giving the father a note in which she said he was “bad”, X left the room. Dr O opined that “[e]xposure to violence is a powerful deterrent for a child to engaging with an adult associated with previous suffering”. Y, on the other hand seemed relaxed and engaged with the father for the 35 minute supervised encounter, which Dr O described as “encouraging”. Y is likely to have had less direct exposure to the father’s violence than X and that may account for her preparedness to see the father in Dr O’s presence. However, as noted by the supervisors, Y is very much influenced by X.
WHAT PARENTING ORDER IS PROPER IN THE CIRCUMSTANCES?
I have found that the father poses an unacceptable risk of harm to the children and, in my view, the risk cannot be ameliorated by supervision. Attempts at supervised time between the father and children have failed and according to Dr N, future contact between the mother and father is likely to cause a deterioration in the mother’s mental health and X’s.
The father has done nothing to ameliorate the mother’s concerns about him. He has not accepted responsibility for his appalling past behaviour and the impact it has had on the mother and children. The father has done nothing to address his alcohol addiction. He did not demonstrate any remorse. In short, he has done nothing to demonstrate any likelihood of improvement.
The presumption of equal shared parental responsibility does not apply given my findings about family violence.
I propose to order that the children continue to live with the mother and that she have sole parental responsibility for them. There will be no restrictions placed on where the mother lives with the children. I intend to make an order that the father spend no time with the children and will restrain him from contacting or communicating with the mother and the children as sought by the mother. It might be that in the future one or both of the children reach out to the father and in that unlikely event the father will be permitted to respond.
Although there is an existing protection order in place, the mother sought more extensive protections e.g. extending the distance by which the father is prohibited from her residence. I consider such restraints to be appropriate in the circumstances.

I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 18 February 2022

File number:	BRC 3735 of 2019
Judgment of:	CAREW J
Date of judgment:	18 February 2022
Catchwords:	FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where the father is found to have perpetrated family violence on the mother and children – Where the father poses an unacceptable risk of harm to the children – Where the risk cannot be ameliorated by supervision – Where the presumption of equal shared parental responsibility does not apply – Where the mother is granted sole parental responsibility – Where the father is restrained from contacting or communicating with the mother and children – Where the mother and children are at liberty to relocate overseas.
LegYtion:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Babcock & Waddell [2019] FamCAFC 129 Baghti & Baghti & Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs:	127
Date of hearing:	15 – 19 November 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Jordan
Solicitor for the Applicant:	Simonidis Steel Lawyers
Counsel for the Respondent:	Mr George
Solicitor for the Respondent:	Redland Legal Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Dart
Solicitor for the Independent Children's Lawyer:	Barbara Fox Solicitor

BRC 3735 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ARGYROS Applicant
AND:	MR JARVI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	18 FEBRUARY 2022