Berisha & Berisha
[2025] FedCFamC2F 483
•14 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berisha & Berisha [2025] FedCFamC2F 483
File number(s): PAC 568 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 April 2025 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk of harm – Father is a perpetrator of family violence against the children and mother – No time Legislation: Family Law Act 1975 (Cth) ss 60CC, 61C, 61D Cases cited: Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Pickford & Pickford [2024] FedCFamC1A 249
WK v SR (1997) 22 Fam LR 592
Division: Division 2 Family Law Number of paragraphs: 130 Date of hearing: 9-12 September 2024 & 24 January 2025 Place: Parramatta Counsel for the Applicant: Ms E Clifton Solicitor for the Applicant: H K Husseini & Co Counsel for the Respondent: Mr T Iuliano Solicitor for the Respondent: Bartier Perry Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms M Norris Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 568 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BERISHA
Applicant
AND: MS BERISHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 APRIL 2025
THE COURT ORDERS THAT:
1.The children, V born in 2012, W born in 2013, X born in 2015, Y born in 2016, and Z born in 2021 spend no time with the applicant (“Father”).
THE COURT NOTES:
A.The final Orders of 25 March 2024 that:
(a)The Mother have sole parental responsibility for the children V born in 2012, W born in 2013, X born in 2015, Y born in 2016, and Z born in 2021 (“the children”).
(b)The children shall live with the Mother.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are parenting proceedings concerning the parties’ 5 children:
(a)V (‘V’) now 13 years old;
(b)W (‘W’), now 11 years old;
(c)X (‘X’), now 10 years old;
(d)Y (‘Y’), now 8 years old; and
(e)Z (‘Z’), now 3 years old.
(collectively ‘the children’)
On 25 March 2024, final orders were made by consent for the respondent (‘mother’) to have sole parental responsibility for the children, and for the children to live with the mother. At final hearing, the issue for determination was what time, if any, the children spent with the applicant (‘father’).
The children last spent time with the father in about September 2023.
There are complex issues of risk and parental capacity which are the focus of the Court’s determination.
For reasons which follow, it is in the children’s best interest that they spend no time with the father.
THE PARTIES’ CASES AND EVIDENCE
The father commenced proceedings in February 2023.
At final hearing he sought orders for time with the children during school term and school holidays, an injunction against the maternal grandfather coming into contact with the children and orders for communication with the children.
The father relied on the following documents:
(a)Outline of Case Document filed 6 September 2024;
(b)Affidavit of the father filed 8 February 2023, sans [16] and [68];
(c)Family Report prepared by Ms D dated 26 February 2024; and
(d)Further Amended Initiating Application filed 10 September 2024.
The mother sought orders for the children to spend no time with the father; that she be able to travel internationally with the children and apply for passports without the father’s consent, and injunctive orders in respect of the father.
The mother relied on the following documents:
(a)Outline of Case Document filed 9 September 2024;
(b)Amended Response to Final Orders filed 3 September 2024;
(c)Affidavit of the mother filed 2 September 2024;
(d)Affidavit of Mr B filed 10 March 2023; and
(e)Family Report prepared by Ms C dated 26 February 2024.
The Independent Children’s Lawyer (‘ICL’) relied on the Case Outline Document filed 6 September 2024 in support of orders for the children to spend no time with the father and for the mother to apply for passports and travel internationally without requiring the father’s consent. The ICL also sought costs in the amount of $6,786.50 to be paid by each party.
Exhibits
The following documents were exhibits in the proceedings:
(a)Exhibit 1 being NSW Police COPS Event reference number …, commencing Narrative Date/Time created late 2022, page 3 through to page 15, being at pages 5 to 17 of the ICL’s Tender Bundle.
(b)Exhibit 2 being a USB containing a Gorilla TikTok video.
(c)Exhibit 3 being NSW Police COPS Report, Narrative 2 of 3, Creating Officer Ms C of Child Abuse, Created Date late 2023 at 10:35 through to Narrative 3 of 3, being at pages 27 to 28 of the mother’s Tender Bundle.
(d)Exhibit 4 being NSW Police COPS Report, Creating Officer Ms E, Created Station Suburb F, Created Date early 2023 at 17:58, being at page 165 of the ICL’s Tender Bundle.
(e)Exhibit 5 being documents identified in the index titled ‘ICL’s Tenders’ handed up to the Court on 12 September 2024 together with that index as an attached aid memoire, this comprising of:
(i)Triage record start date early 2024, end date early 2024 being 3 pages.
(ii)Phone Intake Assessment for G Family Services conducted with Mr Berisha dated 23 July 2023, being 7 pages.
(iii)Child Familiarisation Session Report of G Family Services dated 29 July 2023, being 3 pages.
(iv)Client Case Notes 2023-2024 of G Family Services, being 2 pages.
(v)G Family Services Visit report dated 6 August 2023 – focuses on Y, being 4 pages.
(vi)G Family Services Visit report dated 6 August 2023 – focusses on W and X, being 6 pages.
(vii)G Family Services Visit report dated 13 August 2023, being 5 pages.
(viii)G Family Services Visit report dated 20 August 2023 – focusses on W and X, being 5 pages.
(ix)G Family Services Visit report dated 3 September 2023 – focusses on W and X, being 4 pages.
(x)G Family Services Visit report dated 10 September 2023.
(xi)Provisional AVO for the protection of Ms Berisha, W, V, Z, X and Y from Mr Berisha dated early 2023, being 6 pages.
(xii)Email from Mr Berisha to Ms Berisha dated 6 April 2023 sent at 8.29pm, being 1 page.
(xiii)4 x emails from Mr Berisha and Ms Berisha dated 13 and 14 June 2023, being 2 pages.
(xiv)Email from Mr Berisha to Ms Berisha dated 24 June 2023 sent at 8.56am, being 1 page.
(xv)Email from Mr Berisha to Ms Berisha dated 4 July 2023 sent at 4.28pm, being 1 page.
(xvi)Email from Mr Berisha to Ms Berisha dated 15 August 2023 sent at 10.17pm, being 1 page.
(xvii)Email from Mr Berisha to Ms Berisha dated 19 September 2023 sent at 4.51pm, being 1 page.
(xviii)5 x emails between Mr Berisha and Ms Berisha dated 14 September 2023, being 1 page.
(xix)2 x emails from Mr Berisha to Ms Berisha dated 26 January 2024, being 1 page.
(xx)Emails from Mr Berisha to Ms Berisha dated 20 February 2024 sent at 3.38pm, being 1 page.
(xxi)Email from Mr Berisha to Ms Berisha dated 14 March 2024, being 1 page.
(xxii)Email from Mr Berisha to Ms Berisha dated 30 March 2024, being 1 page.
(xxiii)Emails from Mr Berisha to Ms Berisha dated 31 March 2024 (sent at 1.28pm) and 30 March 2024 (sent at 10.48pm, at 4.09pm and at 3.33pm), being 2 pages.
(xxiv)7 x emails between Mr Berisha and Ms Berisha dated 28, 29 and 30 April 2024, being 2 pages.
(xxv)Email from Mr Berisha to Ms Berisha dated 30 June 2023, being 1 page.
(xxvi)Email from Mr Berisha to Ms Berisha dated 2 July 2023, being 1 page.
(xxvii)Email from Mr Berisha to Ms Berisha dated 12 May 2023, being 1 page.
(xxviii)3 x photographs of the screens of Mr Berisha’s mobile telephone taken by the mother on 21 May 2023, being 3 pages.
(xxix)Email from Mr Berisha to Ms Berisha dated 17 April 2024, being 1 page.
(xxx)Email from Mr Berisha to Ms Berisha dated 24 February 2024, being 1 page.
(xxxi)Emails from Mr Berisha to Ms Berisha dated 21 March 2024 sent at 7.06pm and 6.33pm, being 1 page.
(xxxii)Email from Mr Berisha to Ms Berisha dated 26 March 2024 sent at 8.56pm, being 1 page.
(xxxiii)Email from Mr Berisha to Ms Berisha dated 3 May 2024, being 1 page.
(xxxiv)Email from Mr Berisha to Ms Berisha dated 14 June 2024, being 1 page.
(xxxv)3 x emails between Mr Berisha and Mr B dated 30 January 2023 and 1 x email from Mr Berisha to Ms Berisha dated 29 January 2023, being 3 pages.
(xxxvi)Letter from Bartier Perry Lawyers to EE Lawyers dated 21 September 2023, being 2 pages.
(xxxvii)Letter from EE Lawyers to Bartier Perry Lawyers dated 29 November 2023, being 1 page.
(xxxviii)Letter from Dr H Consultant Psychiatrist to Dr J of K Medical Centre dated 3 April 2024, being 9 pages.
(xxxix)Helpline Assessment of the Department of Communities and Justice dated mid-2018, being 2 pages.
(xl)Helpline Assessment of the Department of Communities and Justice dated late 2022, being 5 pages.
(xli)Helpline Assessment Record details of the Department of Communities and Justice dated early 2023, being 6 pages.
(xlii)Emails between G Family Services and Ms Berisha dated 29 and 31 August 2023, being 2 pages.
(xliii)Emails between G Family Services and Mr Berisha dated 29 and 31 August 2023, being 2 pages.
(xliv)COPS events, being 6 pages, numbers:
(A)… dated mid-2024;
(B)… dated early 2024;
(C)… dated early 2024;
(D)… dated early 2024; and
(E)… dated early 2024.
(xlv)COPS event no. … dated mid-2023 and COPS event no. … dated mid-2023, being 2 pages.
(f)Exhibit 6 being NSW Police COPS Event, Narrative 1 of 3, Event Number …, Report Dated late 2023, being page 27 of the mother’s Tender Bundle.
(g)Exhibit 7 being an agreed chronology.
(h)Exhibit 8 being Family Reported dated 26 February 2024 of Child Court Expert Ms C.
(i)Exhibit 9 being email chain from Ms L to parties dated 14 January 2025, with responses from parties on 14 January 2025 by the applicant and 15 January 2025 by the respondent.
(j)Exhibit 10 being the mother’s bundle of documents as identified in the index to the bundle, comprising of:
(i)Email from Mr Berisha to Ms Berisha dated 23 April 2023 “Hi can I tell the kids good night before they go to sleep”.
(ii)Emails between Mr Berisha and Ms Berisha dated 23 December 2023.
(iii)Email from Mr Berisha to Ms Berisha dated 26 January 2024 at 7.00pm.
(iv)Email from Mr Berisha to Ms Berisha dated 14 March 2024 at 1.41pm.
(v)Email from Mr Berisha to Ms Berisha dated 26 March 2024 at 8.17pm.
(vi)Emails between Mr Berisha and Ms Berisha dated 30 and 31 March 2024.
(vii)Email from Mr Berisha to Ms Berisha dated 2 April 2024 at 10.40pm.
(viii)Emails between Mr Berisha and Ms Berisha dated 28, 29 and 30 April 2024.
(ix)Emails between Mr Berisha and Ms Berisha dated 9 May 2024.
(x)Interim ADVO dated early 2023.
(xi)Interim ADVO dated early 2023.
(xii)NSW Police record dated mid-2023.
RELEVANT LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The children’s best interest remains the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (‘Act’) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[1] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[2]
[1] Family Law Act 1975 (Cth) s 64C (‘Act’).
[2] Act s 61DAA.
In determining what is in the children’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act and, if the children are Aboriginal or Torres Strait Islander, the matters set out in s 60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[3]
[3] See Act s.60CC(3).
Otherwise, s 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the children’s best interests:
(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.
In considering what arrangements would promote the safety of the children and of each person who has the care of the children, the Court must consider any history of family violence, abuse or neglect involving the children or a person caring for the children together with any family violence order that current or has previously applied to the children, or a member of the children’s family.[4]
[4] Act s.60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration.
The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[5]
[5] Isles v Nelissen [2022] FedCFamC1A 97 at [83] (‘Isles v Nelissen’).
Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of violence and abuse.[6] The party alleging the fact bears the burden of proving it and the standard of the burden is the balance of probabilities.[7]
[6] WK v SR (1997) 22 Fam LR 592.
[7] Pickford & Pickford [2024] FedCFamC1A 249 at [79].
While conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.[8] The assessment of risk is still an evidence-based conclusion and is not discretionary.[9] The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not.[10] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[11]
FINDINGS
[8] Ibid at [53].
[9] Ibid at [85].
[10] Ibid at [85].
[11] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
Chronology
The parties relied on a joint chronology.[12]
[12] Exhibit 7
1981 Mother born 1981 Father born Mid 2011 Parties commence cohabitation 2011 Parties marry 2012 V born 2013 W born 2015 X born 2016 Y born 2021 Z born Late 2021 Mother admitted to M Hospital with severe post-natal depression 27 December 2022 Parties separate on a final basis January 2023 Children spend time with the father each Sunday during day time periods only and supervised by the maternal grandfather, Mr B 30 January 2023 Mother visits the paternal aunt, Ms N, with the children. Whilst the other is at Ms N’s home, the father attends. Father takes Z and mother calls the Police 30 January 2023 – 23 April 2023 V, W and Y spend no time with the father ~ 2 February 2023 Mother is contacted by the paternal aunts Ms O and Ms P who advise that Z is at Ms P’s. Mother attends Ms P’s home and collects Z. Ms P advises the mother that the father has placed a tracking device in Z’s nappy bag. Mother leaves the nappy bag at Ms P’s home Early 2023 Provisional ADVO made for the protection of the mother and the children from the father. Conditions ABC, 2, 5 Early 2023 Interim ADVO made for the protection of the mother and the children from the father. Conditions ABC, 5, 6 13 February 2023 Father files Initiating Application seeking urgent ex parte interim parenting orders including an order that the children live with him.
The father otherwise seeks the following final parenting orders:· Father to have sole parental responsibility
· Children to live with the father
10 March 2023 Mother files Response seeking the following final parenting orders:
· Mother to have sole parental responsibility
· Children to live with the mother
· Children to spend no time with the father
· Father to be restrained by injunction from removing the children from their school or place of residence
· Father to be restrained by injunction from approaching or contacting the mother in any way, including through a third party
13 March 2023 Interim Orders made by Senior Judicial Registrar Malinowsky as follows:
· Children live with the mother
· Father to commence Q Program with Ms R and attend each session as directed
· Father to provide evidence of his completion of the Q Program to the mother within 48 hours of same
· Parties to each attend a Parenting after Separation programme
· Parties to each attend the Circle of Security parenting programme (noting the mother has already completed this)
· Restraint on physical discipline
· Non denigration order
Early 2023 Interim ADVO varied in Local Court for the protection of the mother and the children from the father. Conditions ABC only 23 April 2023 – 22 May 2023 V, W, Y and Z spend day time periods with the father on a weekly basis supervised by the mother 22 May 2023 Mother ceases facilitating supervised time between the children and the father 22-24 May 2023 Child Impact Report interviews and observations take place 5 June 2023 Child Impact Report of Child Court Expert Ms S released to the parties Mid-2023 Father calls Suburb T Police Station and requests a welfare check on the children Mid-2023 Father calls Suburb F Police Station and requests a welfare check on the children Mid-2023 Father attends Suburb U Police Station and requests a welfare check on the children 7 July 2023 Father completes Parenting after Separation course 14 July 2023 Interim Orders made by consent by Judicial Registrar Weaver for the children to spend supervised time with the father with supervision to be provided by a professional agency. Pursuant to these Orders, time occurs with V and Z in week one and with X, W and Y in week two 23 July 2023 Father completes the phone intake assessment with G Family Services and states that there will be 4 visits only 6 August 2023 – 10 September 2023 Children spend time with the father in accordance with the Interim Orders under the supervision of G Family Services 6 August 2023 W, X and Y spend time with the father under the supervision of G Family Services for 2 hours 13 August 2023 V and Z spend time with the father for 2 hours under the supervision of G Family Services. Father advises the supervisor that he saw the children and the mother prior to his arrival 20 August 2023 W, X and Y spend time with the father for 2 hours under the supervision of G Family Services 27 August 2023 V and Z spend time with the father for 2 hours under the supervision of G Family Services 3 September 2023 W, X and Y spend time with the father for 2 hours under the supervision of G Family Services 10 September 2023 V and Z spend time with the father for 2 hours under the supervision of G Family Services 19 September 2023 G Family Services advise the parties that they require confirmation from the father as to the future visit times between the father and the children 21 September 2023 Mother’s solicitor requests that the Father confirm his next visitation dates with G Family Services by 25 September 2023 otherwise time with the children would not proceed in October 2023 21 September 2023 Father calls the police and requests a welfare check on the children 28 September 2023 G Family Services advises the parties that their file is now closed and no further visits will be arranged 25 November 2023 Parties attend an appointment with the father’s counsellor 29 November 2023 Father’s solicitor writes to the mother’s solicitor advising that the father is having financial difficulties in meeting the costs of supervision and proposes that time occur under the supervision of a paternal family member or the mother 4-5 December 2023 Family Report interviews and observations take place 7 December 2023 Mother’s solicitor advises the father’s solicitor that time could be reduced to accommodate the father’s financial difficulties or could take place with an alternative professional agency Late 2023 Interim ADVO for the protection of the mother and children is dismissed by Local Court Late 2023 Father calls the police and requests a welfare check on the children Early 2024 Father calls the police and requests a welfare check on the children 28 February 2024 Family Report of Child Court Expert Ms C released to the parties 25 March 2024 Matter listed for compliance and readiness hearing before Judge Murdoch.
Final Orders made by consent for the children to live with the mother and for the mother to have sole parental responsibility for the children. The issue of the father’s time with the children is listed for final hearing before Judge Obradovic for 4 days commencing on 9 September 2024.Early 2024 Father calls the police and requests a welfare check on the children Early 2024 Father calls the police and requests a welfare check on the children Early 2024 Father calls the police and requests a welfare check on the children Mid-2024 Father calls the police and requests a welfare check on the children 21 May 2024 Father’s solicitor files Notice of Withdrawal as Lawyer 8 July 2024 Father files Application in a Proceeding seeking the following interim orders:
· Matter to be dealt with urgently
· Father to have sole parental responsibility for the children
· Mother to spend no time and have no communication with the children until she goes to hospital and receives mental health treatment
· Final hearing to be adjourned
· Maternal grandfather to spend no time with the children
· Maternal grandfather to be placed on the Child Protection Register.
Application is listed on day one of the final hearing.
7 August 2024 Father files Amended Response seeking the following final parenting orders:
· Father to have sole parental responsibility
· Children to live with the father “during the mother’s recovery”
· Mother to spend time and communicate with the children after medical treatment
12 August 2024 HK Husseini & Co file a Notice of Address for Service indicating that they are now acting for the father in the proceedings 3 September 2024 Mother files Amended Initiating Application seeking the following final parenting orders:
· Children to spend no time with the father
· s68B injunctions restraining the father from removing the children from their home or school or from approaching or contacting the mother in any way including via a third party
9 September 2024 – 12 September 2024 Matter listed for final hearing for 4 days before Judge Obradovic
The Father
The father is 43 years old.
The father lives alone in the former home of the parties, which is a large residence and which he rents. The father works in his own services business.
The father has provided the mother with financial support for the children, however this has not been consistent and is not ongoing. He has never been assessed for child support.
The mother
The mother is 43 years old.
The mother currently lives in rental accommodation with all 5 children. She is a homemaker, although she is seeking employment in administration.
The mother has had a medical condition since her late 20’s which she treats with medication, and she takes medication each day to treat social anxiety and prevent relapse of depressive symptoms.
The children
V, the parties’ first child was born in 2012. She has just recently turned 13 years old. V presented as engaged, relaxed and jovial during her interview with the Court Child Expert. V takes a protective role with her siblings.
V is seeing a counsellor to provide her with emotional support. The mother has been proactive in assisting V to receive help in this regard. This occurred after the mother came across an application that V had been using on the iPad, which was used by V to track the days she had not self-harmed.
V described her relationship with her mother in positive terms, and her relationship with her father as ‘botchy’. V recalled the father hitting the children and yelling at them. V feels unsafe about seeing her father and is worried he will try to take one of them again in the future.
W, the parties’ second child was born in 2013. She will be 12 years old soon. W has a diagnosis of attention deficit hyperactivity disorder (‘ADHD’). W’s presentation during the Family Report interviews was of concern to the Court Child Expert, and she appeared to be very withdrawn and timid.
W described her relationship with the mother as good, and she said that the father hits the children regularly, using objects such as wood and shoes, and that this scares her. W does not miss anything about the father. W is anxious and worried about seeing her father, and is scared he will try to take one of the children again.
X, the parties’ third child was born in 2015. She has recently turned 10 years old. To the Court Child Expert, X appeared calm, polite and engaged during the interview. She spoke positively about the mother, and about feeling safe with her. X stated that she did not like the father, that he makes her feel uncomfortable and she was concerned about the father taking one of her siblings.
Y, the parties’ fourth child was born in 2016. He is currently 9 years old. Y is being assessed for ADHD. While being interviewed by the Court Child Expert, Y was very energetic, hard to engage and very distracted and hyperactive.
Y described his relationship with the mother as good, and with the father as bad. However, Y said that he would like to spend time with the father as he misses him. He said his father used to always smack him.
Lastly, little 3-year-old Z was born in 2021. He has a diagnosis of global developmental delay (‘GDD’) and autism spectrum disorder (‘ASD’). Z’s needs are such that he will require a high level of supervision, patience and parental proactivity.
The children had not spent any time with the father since October 2023, save for observations conducted for the purposes of preparation of the Family Report on 5 December 2023.
During the observations for the Family Report with the mother, the children played well together, they appeared comfortable and they engaged with the mother, who remained calm throughout the observation session.
X refused to participate in the observation with the father.
During the observations with the father, the two boys ran up to him and cuddled him, and the three of them were smiling and laughing. W sat as close to the door as possible, she then lay down, and appeared anxious. She sucked her fingers during the entire observation. W ignored the father when he tried to cuddle her, and V refused a cuddle from him. V played on her own.
Y and Z engaged with the father, by tackling, wrestling and rough-housing, while W was watching. V joined in the play after about 10 minutes. All the children were hitting the father with gym blocks during the play, and V appeared to be hitting him very hard. The children were also kicking the father who was rolling on the floor making a loud grunting noise, playing. The Court Child Expert formed the view that the play was too rough and that one of the boys might get physically harmed. She consequently ended the observation earlier than scheduled.
The Dynamics of the Parties
In or around December 2022, the mother saw the father’s phone search history for brothels. She discovered that the father had been visiting sex workers at brothels for about five years and, when he confronted the father, the father blamed her saying ‘you gave me the green light because you won’t have sex with me’.
The father says that he admitted to visiting a brothel, and that he did not want to force himself on the mother so he ‘went outside the marriage for sexual satisfaction’ and that the mother’s medication affected her sex drive. In fact, the father gives a few different explanations as to why he visited brothels. One of those is so that he could get treatment for his bad back. He of course, ‘knew’ that the mother would ‘freak out’ which is why he did not tell her about it. It was the father’s case at final hearing, evident through the cross-examination of the mother, that she left the parties’ home because of the father’s infidelities rather than because of the father’s violence, both physical and psychological.
Despite the parties’ separation in December 2022, the father has continued to hound the mother with unwanted attention. He has sent her many emails where he has referred to his continued love for her, that he misses her and that he wants her back. For example, on 24 April 2024, the father sent the mother an email saying, ‘Hi babe Can I talk to the kids Love [the father]. The mother replied, ‘I’m not babe…’ to which the father responded, ‘Ok Honey’. These emails proclaiming his love for her were peppered throughout his barrage of emails about the mother’s mental health, about her being a ‘psycho’ and needing treatment.
The father did not stop there. His communications with the mother post-separation encompassed a wider range of topics. For example, on 17 April 2023, the father sent the mother an email which said, ‘I’m home now from the wanking and porno addiction class at [AA Centre]. I’, free to talk if you like’. Why the father thought this information was relevant for the mother to know is unclear.
On 23 April 2023, the father handed the mother his phone and said he had nothing to hide. The mother said that when she opened YouTube for Y to watch, the first video was titled ‘How to control a narcissist wife’. This occurred during time the father was spending with the children, which the mother supervised. The father emailed the mother later that day saying ‘the reason you saw the how to control a narcissist wife video it was explaining to me that the reason for that behaviour I don’t think your one’ and ‘I think you looked absolutely amazing today’.
On 22 May 2023, the mother stopped facilitating the children spending supervised time with the father. She explains that she did so as V had discovered pornographic material on the father’s phone. The father’s phone was available to the children during time they were spending with him.
These actions of the father are almost a textbook example of behaviour that would make a person question their own sense of worth and reality. They are, at the very least, entirely confusing and manipulative, if not coercive or controlling.
Father’s Allegations of Sexual Abuse by the Maternal Grandfather and the Father’s Abduction of Z
As noted in the agreed chronology, in January 2023, the children spent time with the father each Sunday, supervised by the maternal grandfather.
The father claimed that in January 2023 he saw the maternal grandfather touching X inappropriately. The father claimed that he was at the maternal grandfather’s house and that he saw the maternal grandfather place his hands on X’s shoulders, push her into the bathroom and undress her. In his oral evidence, the father also said that the maternal grandfather had previously made sexual advances towards him.
The father claimed that he emailed the mother about what he alleged he had seen between the maternal grandfather and X on 29 January 2023. No such email was produced to the Court by the father in these proceedings. However, the father did email the mother in the late evening, asking her if the children could attend to attend a family event and also welcoming her and the maternal grandfather to attend.[13] It is highly unlikely that if the father had witnessed the maternal grandfather sexually abusing one of the children, that he would not have reacted immediately to stop the abuse from continuing, but also that he would then invite the maternal grandfather to a family function with the extended paternal family. The father’s actions are incongruent with the abuse he alleges he witnessed.
[13] Exhibit 5.
On 30 January 2023, the father emailed the mother at around 8:19am quoting school fees and suggesting the children stay with him ‘so they can get a good education’ and that it would allow the mother to find a job. At 8:32am the father emailed the maternal grandfather asking him to ask the mother about the school fees. Later at 11:26am the maternal grandfather sent the father an email demanding that the father have no further communication with him, and to ‘cease applying undue pressure’ on the mother.[14] That email was a plea from the maternal grandfather to the father about the father’s parenting and conduct towards the mother. It was entirely appropriate.
[14] Exhibit 5.
During the day on 30 January 2023, the mother and the children were visiting the paternal aunt, Ms N. The father says that he asked Ms N to speak to the mother about responding to his email, and that Ms N told him that the mother was at her house, which the father then attended.
The father entered the side gate into the backyard where the mother was sitting with Z on her lap. The father grabbed Z, who was one-year old at the time and yelled ‘your brother and father are fucked in the head’. The mother stood up and the father started walking towards the side gate with Z. The mother yelled for the father to come back. The older children then walked into the backyard and Y walked towards the father who grabbed him by the arm and started to drag Y as well. The mother pulled Y back and the father continued to walk out the gate, got into his car, and placed Z on the front passenger seat. The mother and children tried to open the car doors to get Z, but the father sped off with two doors still open. The mother called the Police who arrived some hours later.
The father’s evidence in chief is that he went to Ms N’s home to talk to the mother, and that he confronted her about the maternal grandfather’s behaviour. The father claimed that the mother did not respond at all, that the mother ‘seemed sedated and completely out of it’, and that he took Z because he was concerned about the mother not being able to properly care for him. The father stated the mother started screaming and trying to grab him whilst he was holding Z, and that he told Y to get in the car as well but that he was too scared. The Court accepts that the mother was screaming and trying to grab the father whilst he was holding Z, but otherwise the Court does not accept the father’s evidence about what occurred nor his stated motivations.
On or around 2 February 2023, the mother was contacted by the paternal aunts, and was told that Z was at the paternal aunt’s Ms P’s place. The mother collected Z and Ms P told the mother that there was a tracking device in Z’s nappy bag, which the mother then left behind.
The father explained that he had a tracking device in Z’s bag so that he could be aware of where Z was while he was with him, and that the father had given Ms P ‘strict instructions that if [the mother] did come to collect [Z] that she was not to give [the mother] the bag with the tracking device.’
The Court does not accept the father’s evidence in respect of his explanation for the tracking device. It is inferred that the reason for the tracking device being left in Z’s bag, was so that the father could track the mother, rather than Z.
The father further claimed that the mother had disclosed to him that the maternal grandfather had sexually abused her when she was a child. The Court does not accept the father’s evidence about this, that is, the Court does not accept that the mother ever said such a thing to the father. The father was dishonest in his evidence about this.
The Court accepts the evidence of the maternal grandfather in respect of the events of 29 January 2023, and otherwise. He was an impressive witness.
In early 2023, the maternal grandfather was interviewed by the Police, and in late 2023, the Police closed the case in respect of the maternal grandfather. The complaint was not substantiated.
The Court finds that the maternal grandfather did not engage in any of the conduct alleged by the father in terms of inappropriate touching, sexual abuse, or sexual grooming, whether in respect of any of the children, the mother, or the father himself.
The father’s evidence is bizarre at best and his logic and stated justification for abducting Z are entirely flawed. He was being dishonest.
The Court does not accept that the reason the father took Z was to make the mother listen to him about his concerns in respect of the maternal grandfather. The father took such action knowing it would cause the mother distress, and that he did it maliciously.
Together with the father’s actions in sending the mother an email on 6 April 2023, in which he said ‘I would like to go to church with the family and have something to eat after. I promise not to kidnap anyone lol’ and in the context of the Gorilla TikTok video referred to later in these reasons, the father’s continued actions were calculated to cause the mother fear and distress.
Family Violence
The mother’s evidence contains many examples of family violence and aggressive or inappropriate behaviour which the father exhibited during the parties’ relationship and also post-separation. Such evidence ranged from the father threatening to kill a neighbour’s dog that had escaped its yard, to assaulting his sister, to harsh discipline of the children, to hitting the children with various objects, to emotional manipulation of the mother.
Not all of the evidence is referred to in these reasons for judgment. The father by and large denies any wrongdoing or inappropriate and/or violent behaviour, except to say that he did physically discipline the children and occasionally hit them, but that this was because the mother asked him to and/or insisted on him doing so.
For reasons which are more fully explained below, the Court finds that the father did perpetrate family violence by:
(1)Assaulting the children at various times, where such violent behaviour caused the children and the mother to be fearful;
(2)Making repeated derogatory taunts to the mother in respect of her mental health, where such behaviour coerced or controlled the mother, and/or caused her to be fearful; and
(3)Sending the mother the TikTok video of a gorilla taking a baby gorilla from its mother, in circumstances where the father had taken Z from the mother’s care and withheld him for 3 days, causing the mother to be fearful.
Examples of Harsh Discipline and Assaults of the Children
In mid-2018, a Helpline Assessment was made after V disclosed to a teacher at school, ‘Do not tell anyone this but dad messed up the kitchen and he hit me with a belt’.
In or around 2019, the mother was changing Y when she observed welts on his back. The mother asked Y where he received the welts and Y replied, ‘Dad hit be with the belt’.
At some point in 2022, the mother she observed some marks on X’s hand and when she asked X what had happened X said, ‘Dad hit be with the tool belt’.
In late October 2022, V came running down the stairs crying for the mother. V told the mother that the father hit her with a plank of wood because she did not clean her room.[15] In a call he made to the Department of Communities and Justice in early 2023, the father admitted to hitting V with a piece of wood when the child refused to clean her room. This was said to have occurred approximately three weeks prior,[16] although it may be that the father was speaking to the event that occurred in late 2022 and he was mistaken about the date.
[15] See also Exhibit 5, Helpline Assessment record dated late 2022.
[16] Exhibit 5, Helpline Assessment record dated early 2023.
On 27 December 2022, the parties separated on a final basis after the mother left the matrimonial home with the children. She did so without any notice.
The mother’s evidence, which the Court accepts, is that on that day she was folding laundry while the father was cooking burgers for lunch. The father hit Y on the bottom with a thong because he was not listening when the father told the children to clear the table. The children were reluctant to eat the food the father prepared. The mother stopped folding laundry and told the children to get changed as she was going to the shops. She then took the children to a venue where she met a friend of hers, Ms BB, who looked after the children whilst the mother called the Domestic Violence Hotline. The children and the mother were then sent to a domestic violence shelter. The mother then called Suburb F Police Station and made a statement in relation to the father’s physical abuse of Y.
In late 2022, the Police attended the shelter to interview Y, and later that day interviewed the other children as well.
While there are some discrepancies between the mother’s evidence and the police records as to how it was that Y was hit, the father was interviewed in January 2023 and he made an admission that he hit Y with his hand. The father also mentioned that the mother had poor mental health. In his oral evidence to the Court, the father admitted that he hit Y with a thong that day.
On 11 May 2023, the mother took V, Y, and W to see the father at a shopping centre. The father took the children to a shop to purchase a Mother’s Day gift while the mother went to a different store. V called the mother crying saying that the father had yelled at her. When the mother reached the shop, V was being comforted by a stranger. Afterwards the mother received an email from the father stating ‘Could you please let [V] and [sic] I’m really sorry I understand her and the kids are really sensitive. I did tell her in a nice tone to get three Mother’s Day cards and 3 large bags. Could you call me back please.’
Father’s View of the Mother’s Mental Health
In late 2021, the mother was admitted to M Hospital with post-natal depression (‘PND’). On this occasion, the maternal grandfather called emergency and the mother was taken to M Hospital by ambulance, and ultimately diagnosed as having severe depressive episode with psychotic symptoms arising in the post-natal period.
The father claims that the mother’s mental health had been on a severe decline since this admission and that the mother requires ongoing treatment, including in hospital treatment. This is maintained in the context of the parties being separated since December 2022, and where the children have been living with the mother since that time and spending very limited time with the father, it is also said in circumstances where the parties have very limited contact with each other.
For example, on 30 June 2023, the mother received an email from the father saying, ‘I would like to go with you to see someone about you possible having [a mental health condition] that would explain a lot of what’s been happening sinch [Z] was born. I know this would trigger you but im [sic] trying to help only because i [sic] care. Love [the father]’. Furthermore, on 2 July 2023, the mother received an email from the father which said, ‘Your [sic] a psycho You need some real help And I was only following orders and your [sic] upset Think about it’.[17]
[17] Affidavit of the mother filed 2 September 2024 at [69]; Exhibit 5.
During the Family Report interviews in December 2023, the father was ‘extremely preoccupied with discussing the concerns he holds regarding [the mother’s]… mental health…’.
The father continued emailing the mother in this vein in 2024.
On 26 January 2024, the father sent the mother two emails. The first listed a series of symptoms after which the father commented, ‘What you presented to the hospital was post Nadal [sic] depression what you presented to me is post Nadal [sic] psychosis/cptsd We can go together and get treatment and I will help you get better’. The second email sent three minutes later said, ‘In other words you will not be a Psycho any more and feel better lol’.
On 20 February 2024, following emails concerning a baby crib, the father sent the mother an email which said, ‘Just would like to pick the kids up this weekend with my new car is that possible. Iv [sic] made some inquiries and found [CC Hospital] in [Suburb DD] offer a 3 week stay to treat CPTSD and weakly [sic] follow ups is about $25,000 I think you dad should be paying the bill since he the pedo.’
On 24 February 2024, the mother received an email from the father saying, ‘Since you have tried all the different types of anti psychotic anti depression sleeping medications under the sun. Come to [church] tonight at 7pm and try having an exorcism done. (Christian counselling DBT therapy) Love [the father]’.
On 14 March 2024, the father sent the mother an email with a link to a YouTube video and a message which said, ‘Just a quick video on understanding what crazy you have Love [heart emoji] [the father]’.
On 21 March 2024, the mother received an email from the father saying, ‘I haven’t spoken to the real you since you come out of hospital. You look like [the mother] on the out side but something has Possessed you. I’m not kidding Come to [church] on Saturday night and bring a bucket’.
On 26 March 2024, the mother received an email from the father saying, ‘[CC Hospital] at [Suburb DD] have a treatment for post-natal depression. It’s 3 weeks in hospital stay with a weekly follow-up If you agree to get treatment I will get private health cover to pay for it The kids stay with me. My mum will help me with them as you recover. You really need to get this done if you want to treat this mood disorder and recover. It’s the first step [walking emoji] to the road to recovery and getting back to normal life again. When you suffer [heart emoji] we all suffer with you. Love [heart emoji] [the father]’.
In early 2024, the father called the police to request a welfare check on the children. Also on this day, the mother received an email from the father which said, ‘I received a call from police that you were making up fauls [sic] accusation of storking [sic] and make a seen [sic]. I asked police to call you an ambulance and taken back to […] mental hospital. Thay [sic] declined. You have been told to drop the kids off on the weekends and for me to pick them up every other week. This is perantal [sic] alienation and a form of child abuse.’
On 3 May 2024, the mother received an email from the father saying, ‘You need to get your shit together. Ever since you came out of the psychotic ward and told me your dad is a paedophile you have been carrying on like a Psycho. […] You can make your life ezy [sic] or you can make it hard. If you want to fuck up your own life go ahead I’m not following you not will I let the kids go with you. You have been told by the judge to bring the kids over.’
On 14 June 2024, the mother received an email from the father which said, ‘I understand how emotionally painful it’s been since PND. I really think it would be good for you to do the treatment. We don’t want to see you suffering like this. The treatment at [CC Hospital] will make you feel better. Can we agree that you do your treatment My mum will help me look after the kids until you recover. I would like to see you get better so will the kids. I can pay for it using my super or if you got private insurance that would cover it’.
On 3 July 2024, the mother’s solicitor and the ICL received an email from the father proposing, amongst other things, ‘[the mother] admitters [sic] her self [sic] to [CC Hospital] for her post-natal care and treatment of cptsd’.
The father continued in his dogged views regarding the mother’s mental health at final hearing.
The father’s interim application dated 8 July 2024, was for the mother to ‘get treatment for her condition’ and his Amended Initiating Application dated 7 August 2024, was for the children to live with the father during the mother’s recovery and that the ‘mother can have contact with the children after medical treatment’. Both of these were filed after final orders were made by consent on 25 March 2024, for the children to live with the mother and for the mother to have sole parental responsibility. His application at final hearing was ultimately only for time with the children.
The father’s oral evidence was just as disparaging of the mother in respect of the father’s opinion of the mother’s mental health. It was highly distressing for the mother to hear the continued vitriol during the day and a half that the father was in the witness box. For example, the father, in his oral evidence, referred to the mother as a ‘fucking fruit loop’ when describing her behaviour towards the children.
The mother has received and is continuing to receive treatment in accordance with medical advice. She is compliant. There is no suggestion in the evidence, except to the extent of the father’s assertions, that the mother’s capacity to parent the children is in any way affected.
The father does not have one iota of medical or other relevant training.[18] His trawling of internet sites and purported discussions with medical professionals all paint a dark picture of an irrational and dangerous man, who will not give up his flawed and baseless views, despite objective and reliable evidence to the contrary.
[18] Despite his assertion that he is training to be an allied health worker.
The Gorilla TikTok Video
As noted in the agreed chronology, on 15 August 2023, the father sent to the mother a TikTok video which he asked her to show the children. The video was played in Court. The father was smiling and laughing while the video was being played.
It shows a male gorilla ‘dad’, Haoko, who ‘absolutely adores some playing time with his little ones, however, there’s one slight problem, his missus doesn’t allow it while the kids are still too young, but Haoko has a solution. He playfully abducts his own kids, turning it into a fun game. Every time the mum comes around, he forces her into a harmless funny chase. This has become something of a family tradition, as Haoko has done this with all of his three children. Here he is making a run for it with his six month old son. The mother may not look too pleased, but rest assured, Haoko is a fantastic dad and his playful antics have never ever resulted in any harm to his kids.’
In the context of the father taking Z from the mother some months prior, while she was trying to stop the father from doing so, upsetting and scaring all of the other children who were present (something which has had a lasting effect on all of the children) the video is not ‘funny’ as the father suggests. It is an implied threat that the father will ‘abduct’ one or more of the other children. It is frightening.
The mother, of course, did not show the TikTok video to the children. At least she has some insight.
BEST INTEREST CONSIDERATIONS
The discussion of the best interest consideration below is informed by the Court’s findings and it is to be read together and understood in the context of those findings and in the context of these reasons for judgment overall.
Arrangements that would promote the safety of the child and each person who has care of the child
When the Court Child Expert spoke to the father about the rough play, the father laughed and said that this was normal play for them. He dismissed the concern, and said that the boys love to wrestle. The father said that V and W do not usually behave like that, and placed the blame on the mother for the girls’ lack of engagement and apparent changes in behaviour.
While discussing the children’s play with him during the observation session, the father could not stay on topic, and ‘again became extremely preoccupied with discussing’ the mother’s mental health. This was consistent with his behaviour in the witness box.
The father is a perpetrator of family violence.
The father’s behaviours pose a significant and unacceptable risk of harm to the children. The risks which have been identified in the evidence are not only risks of physical harm, but risks of psychological harm.
The father’s behaviours also negatively impact the mother, such that in the past, they have negatively impacted her parenting capacity. There is an unacceptable risk that the children’s needs would not be met if the mother’s parenting capacity was further negatively impacted by the father’s behaviours.
Any views expressed by the children
V, W and X are very strong in their views about not wanting to spend time with the father.
Y is ambivalent.
Z is too young for his views to be given any weight.
The four older children have all expressed a fear of the father arising out of the father’s abduction of Z. There is an ongoing concern, particularly for the three girls, that the father may again attempt to take one of the children.
The developmental, psychological, emotional and cultural needs of the children
The children are all at varying stages of development, with different needs, including specific diagnosis. The father does not accept Z’s diagnosis of autism, which further adds to the risks for the children.
Since the parents’ separation, the children have all experienced a great deal of change which has been unsettling. They have changed residence twice, and they have had changes in their schooling and most importantly, there have been significant changes in their relationship with the father.
The eldest four children are engaged in a weekly group program to support them with understanding and regulating their emotions.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs
There is already an order for the mother to have sole parental responsibility for the children.
It is not proposed that the father have parental responsibility for the children.
In those circumstances, and on a strict reading of s 60CC(2)(c) the Court need not consider the father’s capacity to provide for the children’s needs.
It is, however, clear on the evidence that the father does not have the capacity to provide for the children’s needs. He is dismissive of the children’s diagnosis, and he does not accept that they have any particular or special needs. He also displayed a view that the mother was making up the diagnoses.
The mother has acknowledged the challenges which the children will face and which she will face raising the children with minimal support. She is attuned to the children, and she understands them and their needs.
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
The mother is the children’s primary care giver. They rely on her meeting all of their needs. She is an integral part of their lives.
There is limited evidence as to the benefit to the children of being able to have a relationship with the father. There is significant evidence as to the detriment the children would suffer if they were to have a relationship with the father.
The father did not avail himself of the time he had been able to spend with the children pursuant to the interim orders. His own needs, financial or otherwise, were more important to him than spending time with the children.
Any other relevant matters
The father poses an unacceptable risk of harm to the children because of his dogged and unrelenting insistence that the mother has unresolved mental health issues for which she requires inpatient treatment, and his flagging of an intent to tell the children that the mother has ‘baby brain’ and that ‘sometimes mums go a little bit crazy’. The father maintained at final hearing, that his insistence on the mother getting further treatment, comes from a place of love. This is significantly concerning.
The continued stated view of the father that the maternal grandfather has sexually abused X, in light of the Court’s findings above also pose an unacceptable risk of harm to the children in that the father will attempt to manipulate and psychologically abuse the children through his inability to protect the children from his views and wrongly held assertions in relation to X being sexually abused.
DETERMINATION
The Court is well aware of the impact that an order for no time will have for the children long term. However, weighing up all of the risks and any benefits to the children from a relationship with the father, the scales are simply too far tilted in the direction of the risks. Those risks are unacceptable.
In all of the circumstances, it is in the children’s best interest that there be an order for no time with the father.
The Court so orders.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 14 April 2025
0
3
1