Ghazal & Edmiston

[2021] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ghazal & Edmiston [2021] FCCA 732

File number(s):

PAC 1816 of 2018

Judgment of:

JUDGE OBRADOVIC

Date of judgment:

23 April 2021

Catchwords:

FAMILY LAW – Parenting – young children – no relationship with father since separation – separation nearly eight years ago – post separation harassment and intimidation of the mother – serious findings of family violence perpetrated by the father – lack of capacity and insight – unacceptable risk of harm – mother to have sole parental responsibility for the children – children to live with mother – children spend no time with the father.

Legislation:

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68, 102NA.

Cases cited:

Banks & Banks [2015] FamCAFC 36
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Starr & Duggan [2009] FamCAFC 115
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Number of paragraphs:

90

Date of hearing:

12 February 2021

Place:

Parramatta

Appearing for the Applicant: 

In person

Appearing for the Respondent: 

Ms Sipka

Solicitors for the Respondent: 

Forshaw Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Fermanis

Solicitors for the Independent Children’s Lawyer:

Claremont Legal

ORDERS

PAC 1816 of 2018

BETWEEN:

MR GHAZAL

Applicant

AND:

MS EDMISTON

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	23 APRIL 2021

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for the children X, born in 2012 and Y born in 2010.

2.The children shall live with the mother.

3.The children shall spend no time and have no communication with the father.

4.X, born in 2012 and Y born in 2010 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X, born in 2012 and Y born in 2010. The mother shall be the only person with ‘parental responsibility’ of the children X, born in 2012 and Y born in 2010 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2012 and Y born in 2010.

5.Pursuant to section 65Y of the Family Law Act 1975, the mother shall be entitled to remove the children, X born in 2012 and Y born in 2010 from the Commonwealth of Australia at such times, for such purposes and for the purpose of travelling to such destinations as she may desire from time to time without the consent of the father.

6.Pursuant to section 68B of the Family Law Act 1975 the father, Mr Ghazal, shall be and is hereby restrained from contacting the mother Ms Edmiston born in 1987 or the children X born 2012 and Y born in 2010, by any means whatsoever and shall be further restrained from approaching any residence at which Ms Edmiston or the children reside from time to time, any place of employment, school, vacation care or similar service provided to the children or being within 100 metres of such premises.

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 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 under the pseudonym Ghazal & Edmiston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. On 24 November 2012, the respondent mother took the parties’ two children, Y who was born in 2010 and X who was born in 2012, and fled the parties’ home. She had done this after 3 or so years of physical and verbal abuse at the hands of the applicant father. Since that date the children have not spent any time with the father. For all intents and purposes he is a complete stranger to them.

2. In April 2018, the father commenced parenting proceedings in the Federal Circuit Court of Australia, seeking final orders that the children “have contact and spend time with the father” on a final basis and a location order on an interim basis. The Initiating Application was amended in August 2018, when the father again moved the Court for final orders that the children “have contact with the father”, that they live with the mother and that the parties have equal shared parental responsibility. Again, the application sought interlocutory relief of a location order, which was made in September 2018.

3. In February 2019, a Further Amended Initiating Application was filed this time seeking both final and interim relief for the children to “spend time with the father”.

4. In May 2019, after a contested interim hearing, the Court made orders for the children to live with the mother and spend no time with the father.

5. A family report was prepared and released to the parties in August 2019, and the matter thereafter prepared for trial. The father failed to comply with any of the filing directions and the matter was originally set down for undefended hearing to take place on 12 February 2021.

6. On 16 December 2021, the father filed an application in a case seeking to vacate the undefended hearing and that the matter be allocated a new date and proceed as a defended hearing. The application was made returnable at the commencement of the undefended hearing.

7. The father was represented by both counsel and solicitor at hearing of that application. The application to vacate the final hearing was refused but the father was granted leave to rely on his material previously filed, in effect, with the matter to proceed on a defended basis. Thereafter, the father’s counsel and solicitor sought leave to withdraw from the proceedings. The matter proceeded on a defended basis and the father was self-represented.

   RELEVANT LEGAL PRINCIPLES

8. The central enquiry is for the Court to determine the outcome that will be best for the children who are the subject of these proceedings.

9. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) “the Act”. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

10. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

11. In determining what is in the children’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (Slater & Light [2011] FamCAFC 1 at [45]).

12. In applying the primary considerations the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.

13. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the children (McCall at [122]).

14. Consideration of the s.60CC factors does not take place in a vacuum and the relevant factors will need to be assessed in the context of the competing proposals (Starr & Duggan [2009] FamCAFC 115 at [35]-[36]).

15. Consideration of relevant factors does not mean discussion (Banks & Banks [2015] FamCAFC 36 at [39]).

16. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence (s.60CG (1)(b); See Salah & Salah [2016] FamCAFC 100 at [36]). The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (s.60CG(2).

17. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.

18. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [13]).

    CREDIT

19. Both the mother and the father gave evidence in the proceedings, as did the Family Consultant. Due to s.102NA of the Act cross-examination was limited.

20. The father was a witness of little credit. His evidence was contradictory and evasive. The father’s oral evidence is inconsistent with his affidavit in a number of significant aspects.

21. For example, on the one hand he says to the Court that he is a good person and that he has not done anything wrong. On the other hand it is a fact that he was imprisoned for a number of months as a result of a criminal conviction for breaching the terms of an apprehended domestic violence order (“ADVO”) and subsequent bonds granted. He pleaded not guilty to those charges, he was convicted, he appealed and he lost. While the father acknowledged that breaking the law was wrong, he did not acknowledge that his actions (which led to the breaking of the law) were wrong. The father’s affidavit purported to excuse his behaviour as he “did not fully appreciate the full extent of the orders….” and that he believed that he could try to reconcile with the mother “as couples do in Middle Eastern culture”. The father indicated that as a result of attending psychological counselling he has learnt how to respect others and their personal decisions and choices.

22. The Court accepts the evidence of the mother, and where the evidence of the father and the evidence of the mother are in conflict, the Court prefers the evidence of the mother.

    FINDINGS AND DETERMINATION

23. The father was born in 1974.

24. The mother was born in 1987.

25. As noted earlier, the parties have two children together, Y who was born in 2010 and X who was born in 2012.

26. The parties met in early 2009. At the time the mother was working in a grocery store and the father was working in a local business which were both owned by the same person. The owner of the two businesses introduced the father to the mother. After the introduction, the father insistently asked and continued to ask the mother out on a date each day. A while later, the mother’s resistance was worn down and she relented and said that she would go out with him.

27. At the end of the parties’ first date, the father sexually assaulted the mother. This was done in circumstances where the father invited himself into the mother’s home and forced himself upon her. This was the mother’s first experience at sexual intercourse. The mother says, and the Court accepts her evidence, that she felt powerless to stop the father and that she was not aware that she could report the matter to the police. The parties moved in together shortly afterwards as the mother could no longer stay at her previous accommodation.

28. In or around 2009, the father took the mother to a sheik in Suburb B. He brought the parties’ passports with him. Upon meeting the sheik, the father and the sheik spoke in Arabic. As they were leaving, the sheik said in English “I’ll see you in one month and one day”. When the mother asked the father what that was about, he told her it was nothing.

29. Over the following weeks, the father would often say to the mother words to the effect: “I’m a good guy, you’re not going to find anyone as good as me… I love you and you love me, I don’t think anyone else will want you, we will have a family together.” The mother says that she started to believe that what the father was saying was true. The father also told the mother that she was not allowed to tell anyone that they were getting married. 

30. The parties were married in 2009 by that same sheik.

31. It was only after the parties’ marriage that the mother told her family and friends about the marriage.

32. During the parties’ relationship, the father convinced the mother to stop seeing and associating with her mother and step-father, and he also limited her contact with other family and friends.

33. Shortly prior to Y’s birth, the father insisted that the mother travel to the United States of America (“America”) so that the baby could be born there. The father booked the mother’s flight and the mother booked accommodation to stay in a hostel. The father was insistent that the mother dress in a way which would hide her pregnancy on the upcoming trip.

34. On the day she was due to travel out, the mother felt that she had no choice but to leave. The father took her to the airport and insisted that she board the plane. He tied a belt around her pregnant belly and told her to dress in loose clothes. This was done with a view to hiding the mother’s pregnancy from the authorities upon her departure from Australia and entry into America.

35. Whilst she was in America, the father limited the amount of money that the mother had access to. After Y was born and whilst still in America, the mother was visited by child protection services and placed in a hotel room by them. She left America with Y in late 2010.

36. When the mother and Y returned to Australia, the father started to take the majority of the mother’s Centrelink payments. He did this by accompanying the mother to an automatic teller machine and insisting that she withdrew her funds and give those funds to him. After giving the father her money, the mother had no way of financially supporting Y and herself, and the father refused to provide funds. The mother regularly contacted charity organisations to pay for food and bills, and she also obtained food vouchers.

    Physical and Sexual Violence during the relationship

37. The mother’s evidence is replete with instances of sexually violent and abusive behaviour by the father towards her and at times violent and abusive behaviour towards the children. The father maintained at final hearing that the mother had simply made these things up. The Court accepts the mother’s evidence in respect of such violence.

38. Only some of those instances are outlined below, which the Court finds are instances of family violence perpetrated by the father against the mother (and the children where relevant).

39. In or around July 2019, whilst in the parties’ home the father tried to kiss the mother, and she said “no”. He attempted again and she moved away. He then grabbed her head and turned it towards her and started kissing her. The mother tried to push him away.  The father got up and took his pants off, he then grabbed the mother by the ankles and started to pull her pants off. The mother shouted out telling the father to let her go. He continued to pull her towards him, pulled off her pants and underwear and forced his legs in between hers. He then grabbed her arms and pinned them down. The father then penetrated the mother. During this whole time, the mother kept saying “no” and “get off me” but the father continued to sexually assault her. He said to the mother “you’re stupid, a wife is meant to have sex with her husband whenever he wants it”. The following morning the father apologised to the mother saying he would not hurt her again.

40. During the mother’s pregnancy with Y, the husband insisted that she continue working in a business that he had started with some friends. The father required her to work long hours and lift heavy things. She was not permitted to take breaks. The mother was scared of the father and in her words “not brave enough to leave him”.

41. On one occasion after working in the shop till late into the night, the mother went home to have a shower and to go bed. As she was getting ready for bed, the father told her not to get dressed. When she told him that she was tired, the father hit her with two open hands into the middle of her back causing her to fall onto her knees. She was in pain and crying. The father said to her “a wife should give her husband sex whenever he asks for it”, and after she lay down on the bed to go to sleep he pulled her towards him and had sexual intercourse with her. The mother was crying the entire time.

42. Approximately 4 days later, the mother had been sick and was lying in bed. The father punched her in the arm, but then apologised. After having a shower, he got into the bed, rolled the mother over and tried to pull her underwear off. The mother resisted but he kept going. During the struggle the father grabbed the mother’s legs and pressed them down on her chest, making it hard for her to breathe. He let her legs go but then proceeded to have sexual intercourse with the mother against her will.

43. In or around April 2010, the mother attended a hospital for a check-up with the mid-wife. Up to this point, she had missed 4 appointments as the father had not permitted her to attend. Whilst she was at the hospital, the father called her every 10 minutes or so. After the check-up the mother returned to work in the shop. After work that same day, the father approached the mother and got on top of her. The mother did not actively resist as she did not want to be hurt anymore.

44. In or around February 2011, the parties, together with Y, were at a friend’s house. Y was unsettled and crying. The mother took the child upstairs to try to calm him and was breastfeeding him. The father came upstairs, and when the mother protested that he had turned on the lights, he slapped her to the left side of her face with his open hand. She was breastfeeding the baby when the father hit her.

45. In or around March 2011, the parties were eating dinner together. The mother was also trying to feed Y, the father then began pulling faces at the child distracting him from his dinner. The mother asked the father to stop, the father then turned to the mother and put both his hands around her neck and squeezed “for a few seconds”. In shock, the mother took Y to their bedroom and settled him to sleep whilst the father left the room to watch television. Later, the father approached the mother for sex, which she complied with as she did not want to be hurt further.

46. That same night, the father directed the mother to attend his friend’s house with Y. The father did not accompany them and instead got into another friend’s car and left. The mother, when satisfied that the father was not following them, left the parties’ home with Y. This was the parties’ first separation.

47. The mother made a complaint to the police and an interim ADVO was made for the mother’s protection. The father was also charged with common assault.

48. During the period after their first separation, the father continually messaged the mother asking her to return to him. He also attended the mother’s step father’s property to see the mother.

1. In or about March or August 2011, the parties reconciled. That same day, the father sexually assaulted the mother.

2. In August 2011, the ADVO was made final in August 2011 and the common assault charge was withdrawn. The mother says she had organised for the ADVO to be revoked because the father was unable to obtain a work license and that she had recently found out that she was pregnant with their second child.

3. In or about November 2011, the father, during a meeting with the Department of Housing, began yelling and belittling the mother. The mother told the father that she wanted to leave the relationship and then ran into the organisation named C Centre and stayed in a shelter. During this period of separation, the father continually messaged the mother telling her that he loved her and wanted her to return back to him.

4. The mother returned to the father in or about December 2011.

5. The parties travelled to America for the birth of their second child, X, in 2012. The father forced the mother to obtain food stamps and rental assistance as he refused to pay for anything.

6. In 2012, the mother told the father that she had started having contractions. The father made her attend an appointment with social security first, which had them wait two hours for that appointment. The mother’s contractions became increasingly worse during this time.  

7. After the appointment, the mother was taken to the hospital and gave birth to X. Whilst in hospital the father was abusive to hospital and other staff. The father also sexually assaulted the mother 4 days after giving birth to X.

8. The parties returned to Australia in 2012. The parties’ relationship continued to deteriorate and the mother began seeing a counsellor through C Centre.

9. On or around 16 November 2012, the mother was in the lounge room with Y and also breastfeeding X. The father then ran out of the shower naked towards the mother and standing over her put his leg on the children’s table and began yelling “you think you can call up and cancel my citizenship, you think I’m getting my citizenship from you but I’m not I’m getting it from the kids, you can’t kick me out of Australia”. The mother says that Y inserted himself between the father and herself. The mother further says that this was the incident that caused her to begin to build resolve to leave the father on a final basis.

10. On 24 November 2012, the mother left the home with the children and remained in a refuge for two weeks whilst the police arranged the removal of the father from their home. The father has not spent any meaningful time with the children since this date. 

11. The mother moved back into the home with the children in December 2012. On 12 December 2012 and interim ADVO was made for the protection of the mother and children. That ADVO was made final on 9 January 2012 and was entered for a period of two years.

    Post Separation Harassment and Intimidation

12. During the period between January 2013 and January 2014 the father engaged in an unrelenting campaign of harassment and intimidation towards the mother as follows:

    a.In or about January 2013, the father attended Suburb D Park where the mother was with the children. He then followed them and said to the mother “Ms Edmiston this is no good. It’s been two months. I miss you and the kids… I still love you, Y and X. Please give me one more change [sic] I promise I won’t hurt or yell at you again”. The mother told the father that she was going to call the police and the father left the location.

    b.On or around 11 February 2013, the mother received 19 text messages and one missed call from the father.

    c.On or around 13 February 2013, the father again approached the mother and children at Suburb D Park, he then spoke with the mother and Y. The father said to the mother “Hello Ms Edmiston, Happy Valentines Day…”. Later that day, the mother also discovered a red envelope in her mailbox with a red rose and love hearted shaped card which read “I love Ms Edmiston, Y and X – Mr Ghazal”.

    d.On or around 14 February 2013, the mother discovered a further white envelope in her mailbox. This was after she had been awoken by someone buzzing at her apartment intercom. The contents in the envelope bore the father’s signature. The mother advised her caseworker and then attended Suburb D Police Station.

    e.On or around 10 July 2013, the mother received a text message from the father which said “Happy Birthday Y I love Ms Edmiston, X, E, F”. The reference to E and F are the names the father would have given to any future children if they had got back together.

    f.On or about 12 August 2013, the father approached the mother while supervising the children playing at Suburb D Park and said to the mother “I love you, me to Ms Edmiston” and continued walking.

    g.On or around 13 August 2013, the father sent the mother a text message.

    h.On or around 23 August 2013, the mother and children were walking down a street and the father who was up ahead of them blew the mother a kiss and then ran away.

    i.On or around 12 December 2013, X fell off her bed and broke her collar bone. After receiving medical attention X continued to cry often so much so that the mother received complaints from her neighbours. In response to those complaints the mother put signs on her windows to explain the reason why X was crying.

    j.On or about 16 December 2013, the father stopped the mother who was pushing X in a pram and said “…What happened to X, I saw one of the signs and was worried about X…”. The father then kissed X and attempted to kiss the mother. He further continued to follow them towards their unit block.

    k.On or around 14 January 2014, the mother spotted the father standing outside the kitchen window as he said “hi Ms Edmiston”. The mother went away from the kitchen window and into the lounge room, however the mother could hear the father from the kitchen window saying “I forgive you for making all of the breaching on me. You should not come back to me straight way but after two or three days. You have my phone number”.

    l.On or around 22 January 2014, the father attended the mother’s home where she was outside with the children in the common area hanging clothes. The father said “hello Ms Edmiston” and proceeded to pick up X and say “daddy’s here”. The mother took the children back into their unit block. A similar incident also occurred on or about 29 January 2014.

    m.On or about 30 January 2014, X was screaming and the mother was trying to settle her when she heard the father’s voice say “hello X stop screaming”. The father was again standing outside the kitchen window, then the dining room window and then the bedroom window following the mother trying to get away.

    n.On or around 31 January 2014, the mother was returning from collecting the children from childcare when the father approached them passing through Suburb D Park. He invited the mother to a Restaurant the following day to celebrate his birthday.

13. The mother reported only some of these incidents to the police. The father was charged with breaching the terms of the ADVO. The father entered a plea of not guilty and the matter proceeded to a defended hearing. The father’s evidence before this Court is that “Due to my ignorance and irresponsible behaviour, I was charged with breaching the ADVO and as a result served three months in jail.”

14. Initially, the father was convicted and placed on a 2 year behaviour bond. He was then called up for breaching the bond, and sentenced to 7 months imprisonment. He appealed the conviction but lost the appeal. Instead he received a 12 month sentence of imprisonment, but with parole served less than 5 months.

15. It is clear that the father has not accepted responsibility for his actions, even after all of these years. To suggest as he does, that his campaign of intimidation and harassment is somehow misunderstood and that it might be acceptable in Middle Eastern cultures is simply rubbish. No reasonable respectable person would behave in this way.

    The Impact of Family Violence

16. The mother has been diagnosed with a number of mental health issues, one of them being post-traumatic stress disorder as a result of her experiences of family violence perpetrated by the father.

17. The family violence which has been perpetrated includes coercive and controlling family violence (Family Report, at paragraph 72). As the Family Report writer notes, exposure to coercive and controlling family violence is known to have a detrimental impact on children, including on their physical safety and psychological wellbeing (Family Report, at paragraph 75).

18. In the opinion of the family report writer

    In the absence of a perpetrating parent assuming responsibility for the violence, presenting as motivated to change and engaging with a specific therapeutic change program, it is likely that the coercive-controlling dynamic would continue post-separation which is likely to undermine the other parents’ (sic) ability to make and enforce child-focused decisions.

    (Family Report, at paragraph 79)

    Parental Responsibility

19. The presumption of equal shared parental responsibility has been rebutted given the Court’s findings of family violence referred to earlier in these reasons (s.61DA(2) of the Act).

20. The mother is understandably frightened of the father. Her fear is such that she is not able to have any effective communication with him, nor to make any joint decisions with him.

21. In all of the circumstances the only order which will see the children’s long term needs being met, is an order for the mother to have sole parental responsibility.

    Primary and Additional Considerations

22. The children have a strong and loving relationship with the mother. She has been their primary carer their whole lives and she has been their sole carer since the parties’ separation in 2012.

23. The children are well settled in the mother’s care and she meets all of their needs, both physical and emotional. The children have a close bond with each other.

24. The children have no relationship with the father.

25. X was only a few months old when the parties separated and she has no memory or knowledge of the father. Furthermore, X is not curious to meet her father and would feel both “worried and happy” if she were to meet him.

26. Y was 2 years old when the parties separated, and he likewise has no memory or knowledge of the father. He does not want to know the father.

27. There is no sound explanation by the father as to why he took no steps between November 2012 and April 2018 to re-engage with the children.

28. There is no evidence that the father has the capacity to establish and maintain any relationship with the children, lest of all a meaningful relationship.  There is no evidence that the father has the capacity to engage with the children in any meaningful way. Indeed, his saying to the family consultant that he would bring the children chocolates and toys is highly indicative of his lack of understanding of what a meaningful relationship would be founded upon.

29. In light of the findings of family violence, there is a real and significant risk to the children of being exposes to family violence if they were to spend any time with the father, even if such time was to be supervised. The Court accepts the family report writer’s opinion that the father would be unlikely to follow any Court order that did not align with his views.

30. At the time of the family report interviews, the father appeared as highly fixated on the mother and resuming a relationship with her. The father considers that the break down in the parties’ relationship was the mother’s fault, that she made up the allegations which gave rise to the ADVO’s, that he never hit her or sexually assaulted her, that the mother continues to bad mouth him to the children and that this is the reason why the children do not want to spend any time with him. 

31. The father has an extremely poor attitude towards the mother, he has demonstrated disrespect and contempt towards her. He has denigrated her during the proceedings.

32. When he was cross-examined about the repeated sexual assaults on the mother, the father said “If I ever did this she can show me a report from the hospital” (or words similar).

33. The father does not accept that the mother is scared of him or that she has any reason to be fearful of him. The father told the Court that the mother is saying she is fearful so that he will not have the opportunity of spending time with his children.

34. If the father was to spend any time with the children, the mother’s psychological wellbeing would be adversely affected. This would have a negative impact upon her parenting capacity and therefore a negative impact on the children.

35. The father’s lack of acceptance and insight into his behaviours is such that he would continue to act in a manner which is consistent with his past behaviour.

36. This would mean if given the chance that the father would highly likely continue to attempt to engage inappropriately with the mother, that he would highly likely continue to place pressure on the mother for the family to be reunited, and that if the chance arose he would highly likely be physically and/or sexually violent towards the mother, that he would continue to deny any past bad behaviour, that he would continue to blame the mother for not accepting his bad behaviour and/or for protesting against it and that he would be physically violent towards the children.

37. It is also likely that given the father’s lack of responsibility for his actions there is every risk that he will try to impart his version of events on the children.

38. Therefore, the risks of psychological and physical harm to the children of spending any time with the father are such that they are unacceptable. The risks would not be ameliorated by an order for supervised time for the same reasons.

39. The risks to the children far outweigh any benefit of a relationship with the father, which the Court does not accept is presently meaningful and furthermore finds that there is little to no likelihood that such a relationship can be meaningful in the future.

40. The father has no capacity to meet the children’s physical or emotional needs and he has made no meaningful financial contributions towards the costs of raising his two children to date, this is notwithstanding his property and funds held overseas.

41. It is therefore in the children’s best interest that there be an order for the children to spend no time with the father.

42. Lastly, given the findings made herein, it is imperative that the mother and the children are protected going forward and that the mother in particular feels safe from the father’s further intrusions into her and the children’s lives.  For those reasons, the injunctive relief sought by the mother and the Independent Children’s Lawyer is appropriate and will be made.

91          I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 23 April 2021