Goda & Karnik
[2024] FedCFamC2F 604
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Goda & Karnik [2024] FedCFamC2F 604
File number(s): PAC 2901 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 16 May 2024 Catchwords: FAMILY LAW – PARENTING – Finding of family violence – Whether mother’s parenting impacted by father spending time – Presumption of equal shared parental responsibility rebutted – Whether the child spends time with the father and whether such time be supervised – Injunctions ordered – The child’s time with the father suspended in certain circumstances Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CA, 61DA, 68B Cases cited: Banks & Banks [2015] FamCAFC 36
Blinko & Blinko [2015] FamCAFC 146
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1989) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 165 Date of hearing: 6-9 November 2023, 22 February 2024 Place: Parramatta Counsel for the Applicant: Mr Moutasallem Solicitor for the Applicant: Avondale Lawyers Counsel for the Respondent: Mr Hegedus Solicitor for the Respondent: Circle Bridge Legal Counsel for the Independent Children's Lawyer: Ms Yu Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 2901 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GODA
Applicant
AND: MS KARNIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.The Respondent (“mother”) shall have sole parental responsibility for the child X, born in 2019 (“child”).
2.The child shall live with the mother.
3.Subject to orders 6 and 7 below, the child is to spend time with the Applicant (“father”) as follows:
(a)For a period of 12 months from the date of these orders:
(i)Supervised by B Contact Service or another professional supervision service as agreed between the parents in writing; and
(ii)For 2 hours each month on a date and time as agreed between the parents and the supervising service.
(b)Thereafter:
(i)In the presence of the paternal grandmother Ms C or either of the paternal aunts, Ms D or Ms E; and
(ii)For 4 hours on the first Sunday of each month at times as agreed between the parents in writing, and failing agreement, from 12noon to 4pm.
4.For the purposes of order 3(a):
(a)The father is to bear the costs of supervision; and
(b)Each parent must:
(i)Contact the supervision service within seven (7) days of these orders to arrange an appointment for assessment for suitability;
(ii)Attend the assessment;
(iii)Comply with any appointment made by the service;
(iv)Comply with all reasonable rules of the service; and
(v)Comply with all reasonable requests or directions of the staff of the service.
5.For the purposes of order 3(b) changeover shall occur at a place nominated by the mother, with such nomination to occur no later than 24 hours before time is to occur.
6.Pursuant to s.68B of the Family Law Act1975 (Cth) the father is restrained by injunction from:
(a)Approaching or contacting the mother or the child, or causing any third party to do so, unless in accordance with these Orders;
(b)Attending, entering or remaining within 50 metres of any school attended by the child, or causing any third party to do so;
(c)Attending, entering or remaining within 50 metres of the mother’s home or workplace, or causing any third party to do so;
(d)Consuming illicit substances within 24 hours of the child spending time with him;
(e)Using physical discipline on the child, or causing, permitting or allowing any third party to do so;
(f)Discussing these proceedings with the child, or causing, permitting or allowing any third party to do so;
(g)Showing the child any documents pertaining to these proceedings or causing, permitting, or allowing any third party to do so; and
(h)Denigrating the mother or her family in the presence or hearing of the child, or causing, permitting, or allowing any third party to do so.
7.Orders 3 and 4 above are immediately and permanently stayed if the father is found guilty of:
(a)Any offence of violence and/or any offence of stalking or intimidation against the mother and/or child; and/or
(b)Any breach of apprehended domestic violence order or any order for the protection of the mother and/or child.
8.Orders 3 and 4 above are immediately suspended if the father is:
(a)Alleged to have contravened any of the injunctions in order 6 above, such that an application alleging such contravention is filed and proceedings are commenced;
(b)Charged with any breach of an apprehended domestic violence order or of any order for the protection of the mother and/or child; and/or
(c)Charged with any offence of violence and/or any offence of stalking or intimidation against the mother and/or child,
pending the outcome of those charges and any proceedings.
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:
INTRODUCTION
These are parenting proceedings in relation to X, born in 2019, the only child of the parties; the applicant Mr Goda (‘father’), and the respondent Ms Karnik (‘mother’).
X has been living with the mother for the entirety of her young life, and she has spent very limited time with the father, this last occurring in early 2023.
The parties’ relationship was marred by violence, both physical and verbal. The father has been convicted of criminal offences arising out of such violence and he is presently the subject of an Apprehended Domestic Violence Order (‘ADVO’).
At the conclusion of the hearing, the father conceded that there should be an order for the mother to have sole parental responsibility. He also conceded that the orders he sought at the commencement of the hearing were not supported by the evidence, but that X should still spend time with him albeit in accordance with what the Court determines is in her best interest.
It is the position of the mother and the Independent Children’s Lawyer (‘ICL’) that X should spend no time with the father.
The primary issue which the Court is tasked with determining is whether it is safe for X to spend any time with the father at all, and if it is safe for her to do so, how such time is to occur.
For reasons which are explained, the Court finds that X should spend time with the father but that it be on a limited basis, with appropriate safety guards put in place, including supervision for a period of time.
BRIEF PROCEDURAL HISTORY AND DOCUMENTS RELIED UPON
The proceedings were commenced on 28 May 2021.
A Family Report was prepared in January 2022.
The matter was listed for final hearing on 22-24 March 2023, but was not ready to proceed on that day. The father’s solicitor was granted leave to withdraw, and a personal costs order was made against that solicitor.
The hearing then proceeded on 6-9 November 2023. It was adjourned part heard, to be concluded on 22 February 2024, when judgment was reserved.
The father moves on his Amended Initiating Application filed 28 July 2023 and reads the following affidavits:[1]
(a)Affidavit of the father filed 7 September 2022;
(b)Affidavit of the father filed 1 August 2023;
(c)Affidavit of Ms D filed 7 September 2022;
(d)Affidavit of Ms E filed 7 September 2022; and
(e)Affidavit of Ms C filed 7 September 2022.
[1] As read and allowed, following objections
The mother moves on her Amended Response filed 2 August 2023 and reads the following affidavits:
(a)Affidavit of the mother filed 17 March 2023;
(b)Affidavit of the mother filed 22 September 2023; and
(c)Affidavit of Ms F filed 13 July 2022.
The ICL relies upon the following documents:
(a)Family Report of Court Child Expert Ms G, dated 11 January 2022.
The following documents are exhibits in the proceedings:
(a)Exhibit 1: Balance of the document from the annexing documents to the father’s affidavit filed 1 August 2023 (excluding G-01 & G-43).
(b)Exhibit 2: Proof of evidence relating to Local Court proceedings.
(c)Exhibit 3: Fact Sheet dated 5 July 2021 as agreed to by the father.
(d)Exhibit 4: Bundle of documents consisting of Notice of Penalty dated mid-2023, Community Corrections Order dated mid-2023, and Final Apprehended Domestic Violence Order naming the father as the defendant dated mid-2023.
(e)Exhibit 5: Photograph dated mid-2020 of the mother and father and X.
(f)Exhibit 6: Bundle of photographs as identified by the father.
(g)Exhibit 7: Photo of video call between the father and X.
(h)Exhibit 8: Text exchange dated late 2021 between the father and the mother.
(i)Exhibit 9: Screenshot purporting to be taken of a video of late 2022 at 10pm.
(j)Exhibit 10: Text exchange between mother and father dated late 2022.
(k)Exhibit 11: Text exchange between the mother and the father dated mid-2020.
(l)Exhibit 12: Screenshot showing overdue child support payments by the father for X as at 7 November 2023 at 13:48.
(m)Exhibit 13: Three-page report to the Department of Communities and Justice to Helpline dated late 2019.
(n)Exhibit 14: Email from the father to the Child Support Agency dated circa August 2023.
(o)Exhibit 15: Agreed facts in respect of the father’s conviction for assault charges dated late 2020 being pages 25-27 of the father’s affidavit filed 7 September 2022.
(p)Exhibit 16: Final Apprehended Domestic Violence Order dated late 2020 being pages 29-31 of father’s affidavit filed 7 September 2022.
(q)Exhibit 17: Letter from father to the mother entitled ‘Apology letter’ undated at page 62 of father’s affidavit filed 7 September 2022.
(r)Exhibit 18: Advice of court result dated mid-2021 in respect of Mr J.
(s)Exhibit 19: Annexures A, B, C, D, E, F, G, K, M, O, and R (Annexure C being a video on USB) of the mother’s affidavit filed 17 March 2023.
(t)Exhibit 20: Pages 16, 50, 53, 55, 56, 64, 65, 69, 71, 83 of mother’s affidavit filed 22 September 2023.
(u)Exhibit 21: Text message between the father and mother commencing at 10:48am.
(v)Exhibit 22: Exchange of text messages via social media.
(w)Exhibit 23: Department of Communities and Justice safety assessment, date of assessment late 2020.
(x)Exhibit 24: Pages 13-19 and 21-36 of the father’s tender bundle.
(y)Exhibit 25: Father’s criminal history being pages 20-30 of the Joint Tender Bundle.
Oral evidence was given by:
(a)The father;
(b)Ms C, the paternal grandmother;
(c)Ms D, paternal aunt;
(d)Ms E, paternal aunt;
(e)The mother;
(f)Ms F, the maternal grandmother; and
(g)Ms G, Court Child Expert.
Each of the parties relied upon an Outline of Case Document.
At the commencement of the final hearing, the parties relied on a Joint Statement of Issues for the Court to determine:
Parental Responsibility
1.Whether the parents should have equal shared parental responsibility for the child, or whether the Mother should have sole parental responsibility for the child.
2.If the Mother is to have sole parental responsibility for the child – whether she should be required to consult with, or notify the Father of any long term decisions made in respect of the child.
The Child’s Relationship with the Father
3.The extent to which the Father has had a relationship with the Child since separation.
4.The nature of the relationship between the Father and Child during periods in which the Father was spending time with the child.
Children’s spend time arrangements with the Father
5. Whether the Father poses an unacceptable risk to the child by reason of:
a.allegations of family violence and coercive/controlling behaviour made by the Mother against the Father;
b. illicit substance use;
c.use of prescription medication otherwise than in accordance with the direction of a medical professional; and/or
d.associating with persons who may directly or indirectly be a risk to the child.
6. Whether the child should spend any time with the Father.
7. If the child is to spend time with the Father:
a.What frequency and duration of time ought to be spent by the child with the Father;
b.Whether such time should be restricted to daytimes only or whether time may progress to overnight time;
c.Whether such time should be professionally supervised, or supervised by the Paternal Grandmother.
8.Whether the Paternal Grandmother has the requisite availability and protective capacity to supervise any time spent by the child with the Father.
In coming to its determination, the Court has read and had regard to all of the evidence referred to above, as well as the transcript of the proceedings.
LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child who is the subject of these proceedings. These proceedings are determined in accordance with provisions of the Family Law Act 1975 (Cth) as they were prior to 6 May 2024.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’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 child. 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.[2]
[2] See Slater & Light [2011] FamCAFC 1 at [45].
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 child of having a meaningful relationship with both of their parents.
A meaningful relationship ‘is one which is important, significant and valuable to the child’.[3] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[4]
[3] Mazorski & Albright [2007] FamCA 520 at [26] (cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121] (“McCall”)).
[4] McCall at [122].
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 child for the child’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 child’s best interests.
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 child spending equal time with the parents. If the Court finds that it is not in the child’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.[5].
[5] MRR v GR [2010] HCA 4 at [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that discussion does not mean consideration.[6]
[6] Banks & Banks [2015] FamCAFC 36.
The ‘provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.’[7]
[7] Isles v Nelissen [2022] FedCFamC1A 97 at [59].
As the Full Court held:
The assessment of risk is an evidence-based conclusion… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[8]
[8] Ibid at [85].
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.[9] The High Court has stated that ‘the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…’.[10]
[9] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
[10] M & M (1989) 166 CLR 69 at [25].
Furthermore, it may be taken as well established that:[11]
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child…
(citations omitted)
FACTUAL FINDINGS
[11] Blinko & Blinko [2015] FamCAFC 146 at [83].
Background
The father was born in 1993 and is currently 30 years old.
The father is self-employed as the director of a business, which operates in the Sydney metropolitan area, and occasionally City H. He currently lives with the paternal grandmother in her home in Suburb K.
The Mother was born in 1996 and is currently 27 years old.
The Mother describes her occupation as homemaker. She currently lives with the maternal grandmother in Suburb L.
The parties met towards the end of 2016 and started a relationship in 2017.
The parties started living together in the paternal grandmother’s home in Suburb M in late 2017 or early 2018.
The parties moved into a property at Suburb N in 2018.
The parties married in 2018.
Shortly after their marriage, the parties moved into the paternal grandmother’s home in Suburb O.
In 2019, X was born.
Following X’s birth, the mother returned to the maternal grandmother’s home for five nights with X so that the maternal grandmother could assist the mother.
In early 2020, the parties separated on a final basis, at the time X was around a month old.
In early 2020, a provisional ADVO was made for the protection of the mother, naming the father as the defendant. The father was also thereafter charged with a number of criminal offences arising out of the complaints made by the mother to the Police in respect of family violence perpetrated by the father. The matter was first before the local court on in early 2020, when presumably an interim ADVO was made.
When X was about 6 months old, the father reached out to the mother through social media, and she met with him on a few occasions. During this brief period, X spent time with the father, but it was always in the mother’s presence.
In mid-2020, the father’s home was raided by police and the father was charged with offences.[12]
[12] Father’s affidavit filed 7 September 2022 at [109]; Exhibit 25.
In late 2020, the father attended Local Court and received a conditional release order and fines.
In late 2020 a final ADVO was made for the protection of the mother with the father named as the defendant. The order was in effect until late 2022.[13] It included a no contact order.
[13] Exhibit 16.
In late 2020, the father pleaded guilty to charges of assault against the mother. These matters arose out of the mother’s complaint to the Police made in early 2020, and are discussed in further detail later in these Reasons for Judgment.
In mid-2021, the father was charged with breaching the ADVO for calling the mother. The father entered a plea of not guilty. The matter was not heard until mid-2023.
According to court records, the parties’ divorce was finalised in late 2021.
In or around late 2022 the parties started communicating again, including about the father spending time with X.
In about late 2022, the father and mother entered into religious contract. During cross‑examination, the father elaborated that this was a form of religious consent to allow him to ‘hang out’ with the mother and X.[14] It is the Court’s understanding that the father was referring to a type of religious marriage.
[14] T:76 line 38 to 77 line 47.
Between late 2022 and early 2023, X occasionally spent time with the father in the presence of the mother and/or other family members. X has not spent any time with the father since early 2023.
In mid-2023, after the commencement of the hearing in respect of the alleged breach of an ADVO in mid-2021, the father entered a plea of guilty.
In mid-2023, the father was convicted for breach of ADVO in mid-2021, and directed to enter a Community Corrections Order.[15] A final ADVO was made against the father for the protection of the mother. This order expires in mid-2025.
[15] Exhibit 4.
Drug Use
Both parties allege the other party has some level of substance abuse.
The father claims that the mother has taken illicit substances and is an excessive drinker at times. He has expressed concern that X is being exposed to people who are intoxicated and/or under the influence of illicit substances as a consequence of parties at the mother’s family home. He also states that the mother took illicit substances during the relationship. The mother denies both allegations and asserts that she rarely used drugs at the beginning of the relationship and, when she did, it was only because the father pressured her.
The mother claims the father used illicit substances during and after the relationship, and expresses concern for X’s safety around the father as she says he is violent and unable to control his temper. The father states that he has not, and would not, consume illicit drugs in the presence of X, and that he has not taken illicit drugs for a significant period of time. The father says that the only drug he has ingested since separation has been prescribed medication.
The Family Report writer concluded that it appeared to her ‘that each parent is reflective of their drug use history and it would appear unlikely that this is an issue that is going to affect consideration of parenting orders.’
The parties have each undertaken hair follicle drug testing. Those results, which were some months old at the final hearing, do not disclose any use of illicit substances by either party.
Apart from the allegations of historical use, neither party pressed the issue as a matter which was of present concern.
Care of X
Following X’s birth, the parties lived together for a very brief period of time. The father says that he would help prepare bottles and feed X whilst the mother was asleep, and change nappies and bathe her. The mother denies this and says that the father refused to assist with caring for X. The Court accepts the mother’s evidence that the father had very little involvement in caring for X.
The mother has been and continues to be X’s primary carer, indeed she is her sole carer. The maternal grandmother assists the mother in caring for X as and when needed.
The time which X has spent with the father post separation has been very limited. While the father has, during those occasions, done things such as feeding her and bathing her, it was always with the assistance of and in the presence of the mother, and/or the paternal grandmother. The father has not looked after X on his own.
Incident in Suburb O in late 2019
In late 2019, the mother’s sister visited the parties’ home in Suburb O when a disagreement arose. The Police were called, and the father’s brother was arrested on suspicion of having a weapon and later released.
The mother stayed at the property that night but left with X to stay with the maternal grandmother the following day.
The father was not cross-examined about the incident in Suburb O in late 2019. The father deposes to witnessing the disagreement and the mother’s sister’s accusation that his brother had a weapon, but he neither confirms nor denies whether his brother in fact had a weapon during the incident. He thereafter states that his brother was arrested as a result of the mother’s sister’s allegation but was later released. During cross-examination, the paternal grandmother stated that her son, being the father’s brother, did not have a weapon during the incident of late 2019 and that she had never seen him hold a weapon. She states that the mother’s sister and father’s brother simply had a disagreement, and that the father’s brother was then arrested after either the mother or the mother’s sister called the Police.
During cross-examination, the mother stated that she never saw a weapon, but that her sister was frantic and had called the Police, and that it looked as though the father’s brother had something behind his back at the time. While the mother was unsure if she spent that night in the house, she acknowledged that she probably left the following day as she did not feel comfortable being there after this incident.[16]
[16] T:394 lines 8-19.
The evidence reveals that this was an ugly and confronting scene for everyone involved with bouts of aggressive behaviour being displayed, and that X was exposed to such behaviour when she was an infant.
Criminal History
The father has a criminal history including for offences of violence.
In early 2014, the father was charged with offences. The offence date for the charges was early 2014. Those charges were later withdrawn.
In late 2015, the father was charged with drugs offences. The father deposes to that drug as having been an illicit drug.
In early 2016, the father was charged with driving a motor vehicle whilst his licence was suspended. The father does not depose to this charge in his sworn evidence.
In mid-2016, the father was charged with assault and weapons charges. The father deposes that those charges related to an incident when the father was with a young woman at night and approached by three men. The father deposes to having a disagreement with those men, which caused him to produce a weapon from his work bag and hold it towards one of the men, who turned out to be a police officer. In mid-2016, the father was also charged with another weapons offence, but this charge was later withdrawn.
In late 2016, the father was charged with driving a vehicle with illicit drugs present in his blood (offence date being late 2016). In his evidence, the father explains he ingested an illicit drug a few days prior to the offence.
In mid-2017, the father was charged with offences (offence date being mid-2016).
In early 2020, the father was arrested for breach of bail and charged with offences.[17]
[list of father’s offences]
[17] See [104] below.
The father was also charged with the following offences in early 2020, but these charges were later withdrawn:[18]
[list of father’s offences]
[18] See [104] below.
In mid-2020, the father was charged with driving a motor vehicle while licence suspended. The father does not depose to this charge in his sworn evidence.
In early 2020, the father was charged with the following offences:
[list of father’s offences]
In mid-2020, the father was charged with the following offences:
[list of father’s offences].
In mid-2020, the father was charged with driving a motor vehicle while licence suspended (offence date: mid-2020).
In late 2020, the father was charged with offences (offence date: late 2019).
In mid-2021, the father was charged and arrested for contravening prohibition/restriction in AVO (offence date: mid-2021).
The mother has no criminal history.
The Father’s Violence towards the Mother
The father is a perpetrator of family violence.
The father has physically assaulted the mother on numerous occasions, he has threatened to harm her, he has intimidated her, and he has bullied her. She remains, understandingly, fearful of him.
The father conceded in his evidence to some violence, however, not the extent of the violence as found by this Court.
To Separation
Early in 2018, after the parties moved into a property at Suburb N, the father recalls pushing the mother, assaulting her and calling her derogatory names. The father says that this occurred in the context of arguing with the mother where things would escalate quickly, and he would be ‘unable to control my anger.’[19]
[19] Father’s affidavit filed 7 September 2022 at [21].
In 2019, the father assaulted the mother causing her an injury.[20] At the time, the mother was pregnant with X.
[20] Exhibit 19.
In 2019, the father assaulted the mother.[21] At the time, the mother was pregnant with X.
[21] Exhibit 19.
Following these injuries, a text message exchange occurred between the mother and father.[22] In that exchange, the father referred to the mother as ‘scum’ and ‘big mouthed dog’. The mother called the father ‘scum who assaults his pregnant wife’ to which the father replied ‘U [sic] deserve everything u [sic] lying dog’. During cross-examination, the father stated that he did send the messages, but could not remember the reason he was upset at the time. In cross-examination, the father said:[23]
Right. Do you recall – so, you recall sending this message. Did you ever apologise for that?---I did apologise, but I know that apologies - - -
Sorry?---I did apologise to her. Every time I did assault her – I know that’s not an excuse or anything, and it’s – I’m ashamed to talk about this – but I would apologise to her, but then I would somehow do it again.
[22] Exhibit 19.
[23] T:101 line 45 to 102 line 3.
The father also stated during cross-examination that, when the parties were in a relationship, they would frequently use derogatory words towards one another when fighting.
In 2019, while the mother was pregnant, the father sent the mother a text message with the words ‘Inshallah you give birth, then die’. In cross-examination, the father said of that message ‘it’s very toxic but that’s how we used to communicate’.[24]
[24] T:111 lines 41-2.
The father makes allegations that the mother has perpetrated family violence against him. Generally, the father claims that the mother would lash out at him when she became angry, hit him, throw things, and that they would both yell and scream abuse and bad names towards each other.
The Family Report writer opines as follows:
The account given by the [father] … is consistent with violence resistance behaviour, however it could also be explained by conflict instigated violence… If there is veracity to [the father’s]… account then [the mother]… may benefit from attending counselling to learn strategies that are aimed at assisting her improve her emotional regulation, however if her behaviour is one of violence resistance then she may benefit from counselling to obtain support for her experiences of family violence.
The Court does not find that the mother perpetrated family violence, but rather that she was the victim. The Court accepts that her behaviour is consistent with violence resistance behaviour.
When she was finally able to work up the courage to leave the relationship, the mother attended a Police Station and supplied the Police with an 8-page typed statement and a 7-page notebook document which documented instances of violence perpetrated by the father.
The Court accepts that the father engaged in the conduct which the mother alleged in her complaint to the Police, which is set out at [104] below (left-hand column).
A provisional ADVO for the protection of the mother was issued by the Police in early 2020. The father was also charged with criminal offences. The father has not put on any evidence as to the details of the offences he was charged with at the time. What he has done though, is to tell the Court that in late 2020 he entered pleas of guilty to charges of assault. The Father was sentenced at Local Court, was fined, and placed on a Communities Correction Order which expired in 2022. The father annexed to his affidavit a copy of the agreed facts in respect of those charges.
It is important to set out the allegations made by the mother and the facts which the father agreed to. The reason why this is important is because it sheds light on the father’s lack of willingness and capacity to take responsibility for his violent actions.[25]
[25] It is also important because it highlights the difficulties for the prosecutors and the courts in dealing with domestic violence offences.
Set out below are the original grounds for the application for the ADVO (based on the mother’s allegations, which the Court accepts), against the facts which the father agreed to for the purpose of his guilty plea, in respect of the charges which were laid:
Mother’s allegations contained in application for ADVO[26] Matters which the father agreed to[27] On a day in [mid]-2018 abut 4pm when the defendant and protected person were living at [P Street, Suburb N] they got into a verbal argument. During this argument the protected person had hold of the defendant mobile phone when the defendant pushed the protected person and then took his phone from her. When the protected person went to get the phone back from him the defendant [assaulted] the protected person causing immediate pain.
(Offence 1: )[In late] 2018 the defendant and protected person were at home and for a reason that the protected person cannot remember the defendant [assaulted] the protected person with such force that it caused [her to] sustain a large bruise. The protected person obtained a photo of this injury and provided it to Police.
(Offence 2:)[In late] 2018 the accused and the victim were at home play fighting when he struck the victim. This caused bruising the following day.
(Sequence 2: – Form 1)[In early] 2019 the protected person was out and the defendant sent her a video on ‘[social media]’. The video depicted the defendant [destroying the mother’s personal property] ‘that not all I’m doing, you’re going to have [nothing] now, watch you slut’. The protected person recognised the phone number and voice to be that of the defendant. When the protected person got home later that day [damaged items] were still on the floor and needed washing due to the defendant spit all over them.
(Offence 3: )In [early] 2019 the victim was out and the accused sent her a video on ‘[social media]’. The video depicted the accused [destroying the mother’s personal property]. When the victim got home later that day her [damaged items] were still on the floor and needed washing. [The damaged items] cost about $400. The video has been supplied to police.
(Sequence 4:)In about [early] 2019, the protected person went to see her uncle about issues she was having with the defendant. While she was with her uncle she received a phone call from the defendant and when she told him where she was he respondent ‘Yeah you fucking slut you wanna go rubbish me to your dad’s family, what what’s going to happen’.
(Offence 5:)About 10pm that night after the protected person finished speaking with her uncle she was in a vehicle driving her cousin [Mr R] when they were pulled over to the side of the road due to the protected person being nauseous. Co‑incidentally the defendant drove past at that time and they ended up following one another to another address. Once at this address the defendant and protected person were in the same car by themselves with the defendant driving. While in the car the defendant wanted to see the protected person mobile phone in case she was recording. The protected person would not let the defendant see her phone, the defendant started driving erratically and while driving grabbed the defendant by the head and pulled her down towards his lap and said ‘Tonight’s the night, you’re never going to forget, just like I did to that girl, I put her in hospital, it’s going to be worse this time, I’m going to break your jaw’. The protected person tried to sit up but was unable as the defendant was holding her down and this occurred over a 7-minute period. During this time the defendant continued to drive erratically while repeatedly [assaulting the protected person]. The defendant only slowed when he momentarily lost control of the car and the protected person was able to sit up and open the passenger door and called out for help, during this her mobile phone fell out of the vehicle. The defendant eventually stopped the car and the protected person got out and then collapsed onto the ground. The protected person was able to get back up and started running to hide from the defendant but he was driving up and down the street trying to get her back into the car before leaving. The protected person was stranded in [Suburb Q] for about an hour and a half and could not locate her phone to call for assistance or find where she was. The defendant eventually came back he kept saying ‘Just get in the car, I swear to god I’m not going to touch you, please I’ll help you find your phone’. The protected person got in the car and went home with the defendant.
(Offence 6:)About 12pm [in early] 2019 the defendant and protected person were at home and having an argument. During this argument the defendant was chasing the protected person around the house trying to get at her. The protected person continued to run away from the defendant in fear of what he would do if he got to her. During this the defendant started throwing [furniture]. While the protected person was running away in fear of the defendant she [fell] on the bottom of the lounge while trying to get out of the back door. This caused the protected person to sustain [an injury]. About 1.24pm the protected person took a photograph of [the injury] and has supplied this to Police.
(Offence 8:)Sometime in [mid]-2019 the protected person was out when she was receiving phone calls from the defendant. The protected person knows this was the defendant as she recognised the phone number and the defendant’s voice. The defendant said to the protected person over the phone ‘Watch this isn’t over yet, watch when you come home what’s going to happen.’ When the protected person returned home she found [personal property] in pieces on the floor of their ensuite bathroom. The [damaged item] was the property of the protected person and cost about $420.
(Offence 9:)[In mid]-2019 around 1.30pm the protected person was driving a vehicle and the defendant was in the front passenger seat and they were in the [Suburb S] area when a verbal argument started about the protected person’s cousin. All of a sudden the defendant [assaulted the protected person]. The protected person felt immediate pain and slammed on the brakes to avoid a collision. The protected person pulled the car over and got out and she was crying hysterically. The protected person ended up getting back into the car and going home with the defendant. The protected person had a visible injury and when she met her cousin and [a] friend [Ms T] they witnessed the protected person’s injury and took a photo of it. This photo has been supplied to the Police.
(Offence 11:)[In mid]- 2019 around 1.30pm the victim was driving a vehicle and the accused in the front passenger seat and they were in the [Suburb S] area when a verbal argument started around the victim’s cousin. The victim was driving erratically and swerving the motor vehicle in a threat to hit electricity posts.
In reaction to this the accused [assaulted] the victim and grabbed the steering wheel of the car. The victim felt immediate pain and slammed on the brakes. The victim pulled the car over and got out and she was crying hysterically. The victim ended up getting back into the car and going home with the accused. The victim’s [had bruising] and when she met with her cousin [Mr R] and friend [Ms T] they witnessed the victim’s injury and took a photo of it. This photo has been supplied to Police.
(Sequence 11:)Later that evening the defendant and protected person exchanged several text messages about the earlier assault. In some of the defendant’s replies to the protected person he wrote:
‘U deserve everything u lying’ ‘Dog’
‘That’s why I will.alwasy fucken slap ya’
‘To try get sense into you’
‘Watch u fuckeb dog’
‘A promise you dog’
The protected person took screenshots of these text messages and sent them to her friend and at a later date her mother [Ms F]. These screenshots have been supplied to the Police.
(Offence 12:)Later that evening the accused and victim exchanged several text messages about the earlier assault. In some of the accused’s replies to the victim he wrote, ‘U deserve everything u lying dog’, ‘That’s why I will always fucken slap ya’, ‘To try get sense into you’, ‘Watch u fuckeb, dog’, ‘A promise u dog’. The victim took screenshots of these text messages and sent them to her friend and at a later date to her mother [Ms F]. These screenshots have been supplied to the Police.
(Sequence 12: Intimidation)In 2019 when the protected person was pregnant, they were driving in a vehicle when another verbal argument started. The protected person could tell the defendant was escalating so she got him to pull over so that she could walk home. The defendant pulled over, the protected person got out of the car and the defendant drove off. The protected person feeling stressed, started to smoke a cigarette and as she was walking along [U Street, Suburb N], towards home, the defendant drove back towards her. She threw the cigarette on the ground and got back into the vehicle but she smelt like cigarettes which enraged the defendant and another argument started, with the defendant going crazy, yelling and screaming. The vehicle pulled into their driveway and the defendant [assaulted the protected person]. This hurt the protected person and made her cry and become frantic. The defendant got out of the vehicle and went inside, locking the protected person out of the house for a short time.
(Offence 13:)[In] 2019, they got into a verbal argument about the use of one of their vehicles and the protected person wanting to be dropped off to a friend’s house. They were screaming at each other and the protected person knew the defendant was getting worked up, so she took her car keys, went and sat in the car outside and locked the car door because she knew the defendant was getting aggressive and was scared for her safety. While in the car the protected person was crying on the phone to a friend when the defendant banged on the car window yelling, ‘Open the fucking door I want my key’. The protected person opened the car door and the defendant immediately [assaulted the protected person causing bleeding]. The defendant said, ‘You deserve that you fucking slut’ and ‘Get out of the fucking car’. While the protected person was still sitting in the passenger seat of the car the defendant grabbed the keys out of her hand and as she went to get out, the defendant spat saliva on the protected person’s shirt. The defendant then got into the vehicle and left. The protected person went inside and saw blood and could feel [pain]. The protected person took a photo of her [injuries] on her phone, and this was taken at 10:07pm. This photo was sent via ‘[social media chat]’ to a friend. The protected person met with her cousin [Mr R] later that night who sighted her injuries. The protected person has supplied this photograph to the Police.
The protected person and defendant then moved from [V Street, Suburb W] to [Y Street, Suburb O].
(Offence 14: & Offence 15:)At about 10pm [in] 2019 the victim and the accused got into a verbal argument about the use of one of their vehicles and the victim wanting to be dropped off to a friend’s house. They were screaming at each other and the victim knew the accused was getting worked up so she took both her car keys and the keys of the accused and went and sat in the car outside.
While in the car the victim was on the phone to a friend when the accused banged on the car window yelling, ‘Open the fucking door I want my key’. The victim opened the car door but did not give the accused his car key. The accused grabbed his key from the victim but the victim did not let go and a tug-of-war ensued. During the struggle the victim let go and the [accused assaulted the victim]. This caused [an injury] and started bleeding. The victim took a photo of [her injury] and sent it to a friend on [social media]. The victim met with her cousin [Mr R] later that night who sighted her injuries. The victim has supplied this photograph to the Police.
(Sequence 14:)In the evening of [late] 2019, the defendant and protected person were at home having a heated argument while in the ensuite bathroom. In the ensuite bathroom at this time was [an object] which belonged to the protected person’s friend, [Ms T]. During the argument the defendant grabbed the [object] and held it in his hand, and threw the [object] on the ground, causing it to smash. As a result of the defendant throwing the [object], the [object] whipped the protected person [causing an injury] that eventually scabbed. After this incident the protected person got into contact with her mother and sister via video call on ‘[chat]’ and showed them [her injury].
(Offence 16: & Offence 17:)On the evening of [late] 2019, the victim and accused were at home having a heated argument in the ensuite of the bedroom. A bottle of ‘[deodorant]’ was in-between the [object]. The accused forcefully pulled the [object causing damage]. The accused’s actions recklessly caused the [object] to strike the victim.
(Sequence 16: 17:– Form 1)[In] 2019, the protected person uploaded a photo of herself to her ‘[social media]’ account. A few days later when she was at the beach with her mother, sister [Ms Z], [Mr R] and another friend, the protected person noticed [several] missed calls from the defendant’s phone number. The protected person answered the next call that was the defendant’s phone number and recognised the voice to be that of the defendant. The defendant was screaming frantically on the phone, ‘[Ms Karnik] are you fucking serious delete that fucking photo now’, to which she replied, ‘What photo’ and he replied, ‘The one on [social media] that you can see between your legs’. They got into an argument over the phone and the defendant screamed, ‘Watch what I’m doing, you’ll see when you get home’. The protected person could hear in the background items smashing and she hung up the phone. At about 11.30pm that night the protected person got home but the defendant was not there. The protected person located her basket in the wardrobe and the corner of the basket was broken. Inside the basket [were broken personal items]. The protected person was also missing some other [items] and saw shattered glass pieces on the floor. The protected person took photographs of this and supplied them to the Police. The protected person owned all of these items and they cost approximately $400.
In 2019, [shortly] before the protected person was due to give birth, they were at home together when the protected person was cooking food and asked for the defendant’s assistance. The defendant accidentally dropped a frypan with [food] on the floor. He started screaming ‘Slut’ and then grabbed another pot that was on the stove with butter melting, tipping it upside down so the content’s fell onto the floor and said to the protected person, ‘Now clean it like a dog’ and went upstairs.
(Offence 18: )The accused was at the beach with her mother, sister and cousin. The accused called the victim on the phone and they had an argument where the accused said, ‘Watch what I’m doing’. At about 11:30pm the victim came back home and the accused was not there. She noticed that her basket in the wardrobe was broken.
(Sequence 18: Form 1)[In] 2019, the defendant’s brother was dealt with by the Police and the protected person was a witness to that matter. Since this date the defendant has said to the protected person. ‘If this was to go ahead and [Mr J] was to get charged, it’s going to get very dirty and I’ll have 50 boys run into your parents’ house and spray the house’.
(Offence 19:)[In] 2019, the defendant and protected person were at home and talking in the bathroom. During this discussion, the protected person’s new [mobile phone] was on the bathroom sink. They were talking about the defendant’s brother and his incident with the Police and the defendant said, ‘Why don’t you say that to [Mr J]’s face’ and the protected person replied, ‘I will’. The defendant started yelling out, ‘[Mr J, Mr J]’ insinuating that he was at the premises, but the protected person knew that he had left the location, so the protected person yelled out, ‘Fuck you’. The defendant grabbed the protected person’s phone from the sink and threw it onto the floor and totally smashed it. The phone had to be completely replaced as it was unrepairable, and the protected person had to pay $90 excess for the insurance policy for a new phone. The phone is worth upwards of $1,500 and was the property of the protected person under a telco phone plan of $[95] for the first 3 months and then $[120] for every month after that.
(Offence 20:)[In] 2019 at about 10pm, they were at home together in the bedroom and the protected person was holding their newborn daughter when an argument started. The protected person walked towards the defendant while still holding the baby and when within arm’s reach of the defendant he [assaulted] the protected person. The protected person started crying frantically and the defendant’s mother came into the bedroom to settle the situation. The [assault] immediately gave the protected person a stinging feeling, hurt and left a red mark.
(Offence 21:)[In early] 2020, the defendant continued to be intimidating towards the protected person saying:
‘If you ever take my daughter from me I’ll assassinate you and make you go missing’; and ‘How would you like it if you woke up with no teeth?’.
(Offence 22:)[In early] 2020, the defendant and protected person had another argument because the protected person slept at her mother’s house. During this argument the protected person was in the bathroom about to get changed and her bra was on the floor. During the argument the defendant picked it up, ripped it with his hands, broke the bra at the front between the two cups and then threw it on the floor. The next day, the protected person saw it under the bed while cleaning and then later realised it was gone.
(Offence 23:)
[26] Exhibit 19.
[27] Exhibit 15.
On the day the parties separated the father refused the mother entry into the home. The father and/or his family placed some of her clothing and belongings into plastic garbage bags and left them outside of the property. The father changed the locks on the family home after the mother left.
The mother obtained a property recovery order in early 2020 so that she could retrieve the balance of her belongings from the parties’ former home. Even with the order, the mother was not able to take with her all of the baby furniture, which was for X, and had to purchase it anew.
Father’s Behaviour after Separation
When X was a baby, the father reached out to the mother through social media. This was done at a time when there was an ADVO in place, including a no-contact order. Notwithstanding the terms of the ADVO, the father contacted the mother through a fake social media account.[28]
[28] The father conceded this in cross-examination.
The parties met on a few occasions in mid-2020, during which X spent time with the father but always in the mother’s presence. On the last of such occasions,[29] the father started asking the mother questions that were personal and then became angry to such an extent that he threw an object at a wall (in the mother’s direction) and threw her belongings outside.[30]
[29] See also Family Report of Ms G dated 11 January 2022 at [45].
[30] The father denied this in cross-examination, but the Court accepts the mother’s evidence in this regard.
The mother described to the Family Report writer, the extent to which the father will go in order to contact her. This includes sending her messages through fake social media accounts, calling her repeatedly, and contacting her mother. Such behaviour occurred post separation until early 2023.
In mid-2021, the father was charged for breach of ADVO for calling the mother in mid-2021. After an adjournment, the matter came before Local Court in mid-2023, and the father changed his plea to guilty on the day after the mother gave evidence and a recording of the telephone call was played.[31] The father had maintained his innocence for almost two years, and indeed had stated to the Police that it was his sister who called the mother and not himself. He was lying and he did it purposefully.
[31] Exhibit 2.
In late 2022, the father again contacted the mother, despite the terms of the final ADVO, and they organised for the father to start spending time with X again. Between late 2022 and early 2023, the father spent time with the mother and X. These instances occurred in the mother’s home and also with X spending time with the paternal family.
Is the Father a Changed Man?
The father is trained in sports. He has spent significant time overseas training and learning. He is a tall and imposing man. The mother is a petite woman. The difference in height alone is significant, let alone the difference in physical strength. With his strength and training he would likely be capable of significant force. On his own evidence, in the past he has assaulted the mother with enough force to cause her to have injuries.
The father’s own childhood and childhood home were marred by family violence. The father’s own mother was the victim of vicious physical assaults by his father. The father’s two older sisters sheltered him when they could from such violence. The father has said to the Court that he is embarrassed and ashamed of his violent behaviour towards the mother.
The father has completed a number of courses which he believes may be relevant to any order for him to spend time with X, and expresses a willingness to participate in any further programs. The father also states that he has made attempts to enrol in a men’s behavioural program, and had appointments with a psychologist between late 2021 and mid-2022 to assist with behavioural change and family violence.
The father deposes to having completed the following courses:
[list of many courses undertaken by the father]
Despite undergoing all of those course, and learning about the triggers for his violent behaviour and understanding a little bit more about his own history and how that has impacted his actions, the father still continued to breach the ADVO until early 2023 by contacting the mother, spending time with her, being in her home, and insisting on spending time with X even though there were proceedings on foot and an outcome was yet to be reached. He did all of this notwithstanding the mother’s application for X to not spend time with him.
During cross-examination by the ICL, in relation to his breach of the ADVO and compliance with court orders, the following exchange was had with the father:[32]
[32] T:167 line 24 to 168 line 5.
So you didn’t care that there was an AVO in place when you contacted her, did you?---I – I did care, but – I – I did care and I – I was worried. It was a decision that I had to make. It was a decision that I was willing to take.
So the idea of potential imprisonment didn’t deter you from contacting her in any way; is that the case?---I didn’t think that the – I knew that I will be charged but I – I didn’t think that I will go to jail.
Well, it says in big black letter on the first page of the AVO:
You could be arrested by police and charged. If you are convicted you could go to prison and be fined.
You didn’t think that was going to happen?---I – I – I believed that, if I was to threaten her or assault her, that that would happen. I feel like that – the way of my breach, it was still a breach. I’m not justifying that I didn’t listen to court orders in respect to that. It was – it was hanging out, having lunch and stuff of that nature. I didn’t believe that that kind of AVO – well, I knew it was serious, the breach, but I didn’t think it was that serious of what I’ve previously done to [Ms Karnik].
Well, sir, you understand that an AVO is a form of court order?---I do.
And if her Honour were to make parenting order, those would be a court order; correct?---Correct.
So what faither can – well, what comfort can you give her Honour that you are to comply with the orders that she makes?---This has taken a toll on my life. I want to know – I’ve been resolving the last couple of years for this day. Whatever the orders are made I will respect them. I know I have not respected court orders before. I will respect them and I will continue on with my life.
The father’s evidence was peppered with statements about ‘fathers’ rights’ to have a say about their children’s upbringing. It was devoid of statements about the responsibilities of parents to look after their children, ensure that their children are well cared for, provided for and that their children live in safe and loving homes.
The impression the Court gained from listening to the father give his evidence is that while he was sorry for what he had done to the mother, and for the violence he perpetrated, he was much more sorry for the consequences of his actions on him, with the primary consequence being his limited relationship with his daughter and the potential of criminal sanctions. In essence, the impression of the Court is that the father mostly felt sorry for himself because of what his actions have resulted in. The Court gained the impression that he was at least partly aware of the impact of his behaviour on the mother, though, he does have some way to go in fully taking responsibility and in respecting the mother’s feelings.
The mother has sent the father text messages stating if he was to pay her money (for child support) she would then permit time with X, she has stated that X loves him, and it appears the parties were talking through texts about a sibling for X.
The mother was herself complicit in at least some of the father’s actions in acting contrary to the terms of the ADVO which were in place for her protection. Such actions of the mother, however, have to be understood within the dynamic of family violence and the parties’ relationship. It is well recognised that many victims of family violence will stay with their abuser, go back to their abuser, and/or try to find excuses/explanations for the abuser’s behaviour. It is part of the cycle of family violence.
Family Report Recommendations
On 28 January 2022, the Family Report prepared by Ms G, dated 11 January 2022, was released to the parties and the ICL. In the report Ms G identified the issues in dispute as being whether X is at an unacceptable risk of harm spending time with the father, and, if not, the appropriate arrangement for the father to spend time with X, and parental responsibility. Ms G identified the issues raised by the parties as: whether the father is using drugs; whether the mother is consuming alcohol in a problematic manner; and whether the father continues to perpetrate family violence by stalking the mother and intimidating the maternal grandmother. Ms G identified two further issues for consideration, namely, the impact that exposure to family violence has had on X, and the effect on the mother’s parenting capacity if the father spends time with X.
In her evaluation, Ms G considered the reports of family violence raised by both the mother and father, and noted that exposure to family violence, including being cared for by a victim-parent whose parenting is impaired because of that violence, is known to have a detrimental impact on children. In relation to the allegation made against the father, and his breaches of ADVOs, Ms G stated the following:[33]
This behaviour may be indicative of [the father] being unable to accept restrictions placed upon him and he is focused on prioritising his needs rather than those of [X] or [the mother]. It would appear that this behaviour is attempting to illicit fear in [the mother] and control her behaviour and this is also [sic] raises significant concern that [the father] would not follow Court Orders in relation to spending time with [X]. If it is determined that this allegation has veracity then this raises concern for his capacity for change. It appears likely that the level of violence described between [sic] by [the mother] would significantly impact consideration of parenting proposals in this matter.
[33] Family Report of Ms G dated 11 January 2022 at [68].
Consideration was also given to the possibility that X spending time with the father is likely to have a negative effect on the mother and her relationship with and ability to parent X. Ms G stated that, if it is determined that the violence against the mother is coercive and controlling and the father has breached an ADVO in contacting the mother, then the benefits of X spending time with the father are unlikely to outweigh the negative impact on X if the mother’s parenting and well-being were impacted by that time between X and the father.
In relation to the proposal made by the father, that he commence spending supervised time with X, Ms G noted that using a supervision service would provide the mother with some surety and would likely be beneficial to X and improve her well-being. However, Ms G also stated that consideration would need to be given to the father’s willingness and ability to support the mother’s parenting choices rather than undermine them, and that she had concerns of his ability to do so given the history of family violence. Also, while the father has undertaken a number of parenting courses, he has not had experience in the day-to-day parenting of X or had any relationship with her.
In light of the perpetration of family violence, the breach of ADVOs, and the mother’s ongoing fear of the father, in her report Ms G found it unlikely that the parents could develop a co‑parenting relationship. Given the likelihood that the conflict would continue and negatively affect X’s well-being, sole parental responsibility was recommended.
In conclusion, Ms G made the following recommendations:[34]
(a)That each parent undertake a hair drug test to understand if this is a matter requiring consideration;
(b)That X live with the mother;
(c)If it is determined X is at an unacceptable risk of harm with the father including his alleged behaviour towards the mother, that X spend no time and have no communication with the father; and
(d)The mother have sole parental responsibility.
[34] Family Report of Ms G dated 11 January 2022 at [76]-[79].
Ms G was not moved from those recommendations during her oral evidence.
When asked whether her view would change if the Court found that the father’s drug use was not of concern, Ms G said that it would not change her view as the history of violence and the behaviour towards the mother was the primary consideration.
Ms G was asked about whether she would revisit her opinions about the father having identity contact with a supervision service in light of the father having spent time with X and the mother since the report. Ms G was asked, if the Court found that X enjoyed that time with the father, whether that would cause her to revisit her opinions. Ms G said:[35]
It would be looking at the – that on an ongoing basis, and if it was positive time, if there was a supportive relationship towards the mother, then yes, a situation where supervision is in place could work. Identity time came from an adoption space, not a separated parent space. So it has not been proven to be – like, long-term supervision has not been shown to be, like, a positive thing if there’s risk and a history of violence. That would need to be taken into consideration. Again, it’s outweighing – or weighing up the benefits to the child verses the risk to the child.
[35] T:444 line 20-9.
When asked what would change her recommendations, Ms G replied:[36]
If the father was cognisant of his behaviour, the impact that it has had on the mother, the impact that it has on the child and that he had put in steps or interventions to change his behaviour and the way he viewed the mother and that relationship – ongoing counselling, for example, could be useful, his ability to support the mother’s relationship, support the decisions about the child and facilitate that on an ongoing basis.
[36] T:445 line 35-41.
Other relevant matters
During cross-examination the father stated that he first commenced making child support payments sometime in 2023, and that they were in the form of weekly payments of $150 to $160. The father then stated that those payments decreased at some point to around $56 a month, which is the amount the father had been paying per month as at final hearing. As of 7 November 2023, the father owed $1,091.58 in child support payments.[37]
[37] Exhibit 25.
In April 2023, the father made an application to the Child Support Agency that his assessment for child support be changed due to extenuating circumstances and severe financial hardship. The father sought that his child support payments be reduced to $2 per year. During cross-examination, the father stated that he sought that drastic decrease in child support in order to demonstrate his current financial circumstances to the Child Support Agency. He also stated during his cross-examination that his application was a form of ‘negotiation’ with the Child Support Agency, and that he had hoped they would respond to it after considering his financial circumstances.
The father has a rather provincial outlook and misogynistic attitude. He considers it is appropriate to tell the mother and X what to wear, how to look, and how to behave.
On a day in summer, exact year being uncertain, the parties engaged in a message exchange following the mother’s posting of an image on her social media account of her in a bikini, back to the camera, and holding X.[38] The father made complaint to the mother of her ‘Showing your sss [sic] hole. Ass’ The mother replied that she wears bikinis and goes to the beach, to which the father replied ‘You know it anoys [sic] me. And you still do it’ and told the mother ‘That’s you I need to accept my daughter will not be doing shut [sic] like that’.
[38] Exhibit 22.
In late 2022, the father sent a photograph of X via text message to the mother. In that photograph X could be seen wearing a ballerina outfit. The father demanded of the mother, ‘What’s my daughter wearing?’ and ‘Please make sure she doesn’t wear that out. I won’t accept that.’ During cross-examination, the father stated that the outfit worn by X in the photograph was inappropriate and that he was concerned the outfit would make X susceptible to sexual predators due to the number of sexual predators residing in the same area as the mother. The father also stated that he would not have been concerned with X wearing that outfit if she was attending a dance recital with other children. The Court does not accept the father’s evidence explaining why he sent the message and as to his concerns. The Court finds that the father was controlling of what the child could wear due to his views about what is and what is not appropriate for women to wear.
The father’s extended family has also behaved inappropriately towards the mother. The mother included in her evidence social media posts about her made by the father’s sister Ms D. These comprised of two posts, the first stated ‘I would slap you, but I don’t want to get slut on my hand’, and the second ‘You can’t turn a skank into a girlfriend. You can’t turn a hoe into a housewife’. During cross-examination, the father was asked about his sister’s social media and stated that he was unsure as to whether they were directed towards the mother, but that he spoke to his sister after seeing them in the mother’s evidence. During cross-examination, the father’s sister was asked about the posts. The father’s sister stated that she remembered making the first post after the father and mother’s relationship had ended. She also stated that she regrets making the post, felt embarrassed by it, and apologised to the mother during her cross-examination. When asked about the second post, the father’s sister again apologised to the mother during her cross-examination and stated that it was something she did not want to remember.
X has, in late 2022 to early 2023, spent some time with the extended paternal family. On all accounts she was welcomed and enjoyed her time with her grandmother, aunts, uncle, and many cousins. There is no evidence that the paternal family at present hold any ill feeling towards the mother, and the Court accepts the evidence of the paternal grandmother and paternal aunts that they consider the mother to be a good parent.
SECTION 60CC CONSIDERATIONS
Primary Considerations
It is difficult to assess on the evidence whether X at present has a relationship with the father which is ‘important, significant and valuable’[39] to her. X’s relationship with the father is still in its embryonic stages. Even though she knows the father, and even though she has spent some time with him, she has not had any significant opportunity to develop a meaningful relationship with the father.
[39] Mazorski & Albright at [26].
Noting the findings of family violence which are referred elsewhere in these Reasons for Judgment, there is a need to protect X from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.
Additional Considerations
These proceedings commenced when X was just a baby. At the conclusion of the hearing, X was 4 years old.
X is still very young, and she has spent very limited time with the father. Those experiences, on the evidence, appear to have been positive for X. She not only had the opportunity of enjoying her time with the father, but also the opportunity of enjoying some time with the extended paternal family.
The father has had little occasion of caring for X without another adult present. The father’s parenting capacity is largely untested. While X appears on all accounts to be a happy and well-adjusted child, it is a significant unknown as to how she would cope if she was to be spending time with the father in accordance with his application.
When speaking about the father and spending time with him, the mother has positively encouraged X such that X has been excited at the prospect of spending time with the father. In addition, the mother has successfully shielded X from any negative views which she might have of the father.
The evidence falls short of demonstrating that the mother is at serious risk of losing her parenting capacity if an order for time between X and the father is to be made. Indeed, the mother’s evidence is that she would obtain professional help if needed in order to assist her manage her distress if X was to spend time with the father.
The father provides little financial support for X.
Both parents are of mixed backgrounds. Both parents have mixed religious backgrounds. The father practices the Muslim faith as did the mother while the parties were together.
The Court has made findings of family violence, which are explained earlier in these Reasons for Judgment. There is a current ADVO for the mother’s protection with the father named as the defendant.
PARENTAL RESPONSIBILITY
At the conclusion of the hearing, there was a concession by the father that an order for the mother to have sole parental responsibility for X ought to be made. This was in line with the application of the mother and the ICL.
The presumption of equal shared parental responsibility has been rebutted in this matter. This is not only due to there being little to no effective communication between the parties, but also due to the findings of family violence made earlier. Furthermore, the evidence is such that an order for equal shared parental responsibility is contraindicated, and indeed it would be counterproductive as far as the mother’s capacity to meet X’s needs is concerned.
As X will be living with the mother, it is appropriate that she have the benefit of an order for sole parental responsibility.
CONCLUSION
These proceedings are about risk, whether the identified risks are unacceptable and whether, if they are, such risks can be ameliorated or minimised. The assessment of risk is an evidence-based conclusion.[40]
[40] Isles & Nelissen at [85]
The father has been violent towards the mother, including when she was pregnant with X. He has acted in an intimidating manner towards the mother, and he has been very manipulative. The father continued to turn his nose up at authority by behaving in a manner which was directly prohibited by the terms of the ADVO. He continued to lie to the Police and the Local Court in respect of breaching the ADVO in mid-2021 until mid-2023, when he realised that the prosecution would prove its case. He continued to breach the ADVO until at least early 2023.
The father has not been honest with his extended family members about the extent of the violence he perpetrated on the mother. He has not been honest with this Court in that regard either. He continues to minimise his actions. Even by the time the final hearing had concluded, he had still not accepted full responsibility for his actions, although he was on his way to doing so. To the father’s credit, he has at the very least realised that the consequences of his actions constrain his relationship with X.
The father has little to no parenting experience. X does not at present have a relationship with the father which could be said is meaningful.
Ms G is of the opinion that X spend no time with her father. While the Court notes this opinion, it is but part of the overall evidence before the Court.
The Court’s findings cumulatively mean that there is an unacceptable risk of harm to X if she was to spend time with the father. The next question is whether such risks can be ameliorated, and if so, how?
An order for supervised time would see X spending time with the father in an environment where she would be shielded from possible physical and emotional violence. Such an environment would also provide a safety guard for the mother and her concerns for her own safety. It is appropriate that supervision be for at least twelve months, and that the father pay all of the costs associated with such supervision.
The father lives with the paternal grandmother and other members of the father’s extended family. Following the hearing, the paternal grandmother and the paternal aunts are much more aware of the father’s violent behaviour towards the mother, and they are now much more aware of their own shortcomings in ignoring some of the red flags that they must have observed during the parties’ relationship. The Court finds that the paternal grandmother in particular will be protective of X, and that the father living in her home is a further protective factor for X. If the father moves from the paternal grandmother’s residence, he will be required to be in her presence, or the presence of his sisters, while X spends time with him.
Limiting the father’s time with X to time that is not significant and substantial is another way to put in safety guards to ensure that the risks to X are minimised. An injunction preventing the father from discussing these proceedings or permitting or allowing any third party to do so, will also go some way to protecting X from any negative comments about her mother.
In weighing up the risks to X, including long-terms risks in not having any relationship with the father, such that it may cause her to idolise him and impact negatively upon her relationship with the mother in the future, the Court finds that it is in X’s best interest to have some time with her father. Having limited time with the father, initially supervised and later in the presence of the paternal grandmother and/or paternal aunts, will ensure that the risks to X are reduced to a level that is not unacceptable.
The Court will make a number of injunctions not only for the mother’s and X’s protection but also to ensure that the father is not again tempted to overstep by incorporating into the orders consequences in respect of any breaches of such injunctions. Such an order is a further safety guard to ensure that neither the mother nor X are exposed to an unacceptable risk of family violence or unacceptable risk of other harm.
Likewise, orders will automatically be either suspended or permanently stayed if the father is charged with certain offences or found guilty of certain offences respectively. Such an order is a further safety guard to ensure that neither the mother nor X are exposed to an unacceptable risk of family violence or unacceptable risk of other harm.
In respect of the risks identified by Ms G in terms of the father undermining the mother’s parenting capacity, the Court has already found that the evidence falls short of demonstrating that the mother is at serious risk of losing her parenting capacity if an order for time between X and the father is to be made, and that the father is at least somewhat cognisant of the impact of his violent behaviours. By limiting the time that X is to spend with the father, the mother’s parenting capacity will be protected as it will limit any exposure to such undermining behaviour by the father, both towards the mother and through X. The injunctions which are made, preventing the father from denigrating the mother, will also go some way to ensuring that the mother feels, and indeed is safe, from the father’s undermining behaviour.
For all of those reasons, X will spend time with the father in accordance with the orders set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 16 May 2024
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