GUNST & DITTERSDORF

[2019] FamCA 126

FAMILY COURT OF AUSTRALIA

GUNST & DITTERSDORF [2019] FamCA 126

FAMILY LAW – CHILDREN – Best interests – International relocation – Where the mother seeks to relocate to her country of birth with the child – Where the father opposes relocation and seeks that the child live with the parents on a week about basis in Australia – Whether the father poses an unacceptable risk of harm to the child by reason of his history of violence and anabolic steroid use – Where the father has numerous criminal convictions of a violent nature – Where Domestic Violence Orders have been made against the father for the protection of five of his previous partners, including the mother – Where the father has breached Domestic Violence Orders and bail conditions on numerous occasions – Where the father lacks insight into his damaging behaviour and shows no remorse – Where the father presents an unacceptable risk of physical and psychological harm to the child which cannot be ameliorated by supervision – Where it is in the best interests of the child to permit relocation – Where the child will live with the mother in the Netherlands, have limited communication with the father and spend time with the father only as agreed by the mother.

Family Law Act 1975 (Cth)

Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Colgan & Colgan [2014] FamCA 828
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Mahoney & Houston [2018] FamCA 71
Moose & Moose (2008) FLC 93-975
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Gunst

RESPONDENT: Ms Dittersdorf

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

FILE NUMBER: BRC 1281 of 2017

DATE DELIVERED: 8 March 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 - 27 February 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITOR FOR THE RESPONDENT: Ms Simpson, Simpson Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haddrick

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Legal Aid Queensland

IT IS ORDERED THAT:

1. All previous parenting orders be discharged.

2. X born … 2016 (“the child”) be removed from the Family Law Watchlist forthwith.

3. The mother have sole parental responsibility for the child.

4. The child live with the mother.

5. The mother be permitted to change the child’s place of residence to the Netherlands and travel with her internationally.

6. The father be restrained and an injunction hereby issues restraining him from spending time with the child unless the mother has given prior written consent to the father spending time with the child.

7. Save as provided in this Order, the father be restrained and an injunction hereby issues restraining him from communicating with the child unless the mother has given prior written consent to the father communicating with the child.

8. The father be at liberty to communicate with the child by FaceTime or other equivalent each Sunday at 8.00am (local time where the child is living) with the mother to facilitate the communication.

9. The father be at liberty to communicate with the child by FaceTime or other equivalent on Christmas J, Easter Sunday, the father’s birthday, Father’s J and the child’s birthday at 8.00am (local time where the child is living) on each of those days, with the mother to facilitate the communication.

10. The father be at liberty to send one card and one gift to the child on special occasions such as Christmas, Easter and her birthday AND the mother be at liberty to read the card and open the gift before providing the card and/or gift to the child so as to ensure that the card and/or gift is appropriate for the child to receive.

11. The parents be at liberty to contact the other via email correspondence solely for the purpose of making parenting arrangements and keeping the other advised of a postal address at which they can be contacted.

12. The parents keep each other informed at all times of their email and postal addresses, with the parents to notify each other of any change to this information within 24 hours.

13. The mother inform the father as soon as reasonably practicable of any significant medical or health condition suffered by the child.

14. The mother provide an update to the father about the child’s educational progress in the English language at the conclusion of each school term.

15. Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is:

    (a)To be of good behaviour towards the mother and not commit family violence against the mother;

    (b)To be of good behaviour towards the child, not commit family violence against the child and not expose the child to family violence;

    (c)Not to remain at any place where the mother is at any time save for the purpose of spending time with the child as agreed by the mother in writing;

    (d)Not to contact the mother for any purpose other than as permitted by this Order or as agreed by the mother in writing.

16. Within sixty (60) days of this Order, the father and mother do all things necessary to register this Order in a court of competent jurisdiction in the Netherlands.

17. The independent children’s lawyer be discharged.

18. All applications be otherwise dismissed.

NOTATION

A.It is noted that when exercising her sole parental responsibility for the child the mother intends to:

(a)Advise the father by email of the decision to be made in relation to any major long term issue she proposes to make at least two (2) weeks prior to making the decision;

(b)Invite the father to express his opinion by email in relation to the proposed decision within seven (7) days of her email;

(c)Consider any opinion expressed by the father in relation to the decision;

(d)Inform the father by email within seven (7) days of the decision she has made.

B. The mother is not obliged to provide the father with the child’s residential address or the name or location of the child’s school.

C.For the purposes of this Order it is noted that the definition of family violence is contained in the Family Law Act 1975 (Cth) and provides as follows:

FAMILY LAW ACT 1975 - SECT 4AB

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

(2)Examples of behaviour that may constitute family violence include (but are not limited to):

a)   an assault; or

b)     a sexual assault or other sexually abusive behaviour; or

c)     stalking; or

d)     repeated derogatory taunts; or

e)     intentionally damaging or destroying property; or

f)   intentionally causing death or injury to an animal; or

g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

i)   preventing the family member from making or keeping connections with his or her family, friends or culture; or

j)   unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

a)   overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

b)     seeing or hearing an assault of a member of the child's family by another member of the child's family; or

c)     comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

d)     cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

e)     being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

D.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gunst & Dittersdorf has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1281 of 2017

Mr Gunst

Applicant

And

Ms Dittersdorf

Respondent

REASONS FOR JUDGMENT

1. Mr Gunst and Ms Dittersdorf are the parents of X born in 2016 and they are unable to agree about what country X lives in and what time she spends with her father, if any.  

2. The mother wishes to return to her country of birth, the Netherlands, with the child.

3. The mother and child are currently living in Queensland while the father works in Western Australia and returns to Queensland every third week and spends time with the child when he is in Queensland. The time is currently supervised because of the father’s history of violence and anabolic steroid use.

4. While the father disputes a number of the allegations about his past history of violence and contends that his anabolic steroid use was brief, he nevertheless admits to a history of physical violence against males and verbal violence against females. He denies ever hitting a woman. The father contends that he is a “changed man” since the birth of the child.  

issues

1. The issues for determination identified with the assistance of the parties are:

   a)Does the father pose an unacceptable risk of harm to the mother and/or the child by reason of his past violence and drug use?

   b)Will the mother facilitate and promote a relationship between the father and the child?

   c)Will the mother comply with court orders in the event that her application to relocate with the child to the Netherlands is successful?

   d)Will the father comply with court orders?

   e)Can the mother live and work in Australia in the event that she is not at liberty to relocate with the child from Australia?

   f)What is the likely impact on the mother’s parenting capacity if she is unable to relocate with the child to the Netherlands?

   g)Can the father relocate to the Netherlands?

   h)Do the parents have the capacity to make joint decisions about major long term issues in relation to the child?

   i)What were the circumstances of the mother’s departure from Australia in 2016 and retaining the child in the Netherlands until being forced to return to Australia under a Hague Convention Order?

   j)If the mother is able to relocate with the child to the Netherlands what orders might assist in ensuring the child’s continued relationship with the father, if it is considered to be in the best interests of the child to have an ongoing relationship with the father?

   k)Is the father’s safety at risk if he returns to the Netherlands and in particular is there a prospect of his being killed at the instigation of the maternal grandfather?[1]

   [1] The father sought the inclusion of this as an issue during the trial.

proposals

1. In a document filed by the father on 29 January 2019 entitled ‘Final orders sought’ the father proposed a gradual increase in the time he spends with the child commencing immediately with unsupervised time every third week from 10.00am to 4.00pm on Friday, Sunday and Tuesday and increasing to overnight time when she turns 3 and upon commencing school, every third week from 5.00pm Friday to 5.00pm Tuesday. That document also proposed that the child spend up to half of each school holiday period with him “where dates coincide with the father’s leave”. The father’s proposal changed during the trial to one where, upon his transfer to Brisbane (which he contended had been approved)[2], the time the child spends with him should be increased to week about.  I do not interpret the father’s changed position to necessarily involve an immediate week about arrangement. The father also proposes, among other things, that the parents have equal shared parental responsibility for major long term issues.

   [2] An email from his employer does not say his transfer has been approved nor does it identify where in Queensland the father might be transferred to – see exhibit 12.

2. The mother’s proposal as contained in her amended Response filed 8 February 2019  was inconsistent, in some respects, with her affidavit of evidence in chief e.g. in her amended Response she proposed the child commence unsupervised time with the father from age five but in her affidavit she proposed unsupervised time from age seven. Ultimately, her proposal, like that of the father’s, also changed during the trial and she proposes that no specific time between the father and child be provided for in an order save as “agreed by the mother in writing.”  The mother proposes that she and the child relocate to the Netherlands forthwith. The precise terms of the final order sought by the mother are set out in exhibit 14.  

3. The independent children’s lawyer (“ICL”) supports the mother and child relocating to the Netherlands and the mother having sole parental responsibility. The ICL recommends the father spend supervised time with the child at a contact centre in the Netherlands but otherwise adopts the minute of order proposed by the mother.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]

   [3]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[4] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof.” ^[6]

   [4] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [5] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [6] See Johnson & Page (2007) FLC 93-344, [68], [71].

9. The Court is not required to make findings of fact on every factual dispute raised by the parties.[7] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[8]

   [7]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [8]M & M (1988) 166 CLR 69.

10. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

11. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

12. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

13. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

1. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

2. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[9]

   [9]Banks & Banks (2015) FLC 93-637.

background facts

1. Before turning to consider the issues identified above, I note by way of background that the father is 34 years of age and works in Western Australia as a technician. He maintains a residence in Brisbane, Queensland where he returns for five days every third week. The father was born in Australia and has lived all his life in Australia.

2. The mother is 35 years of age and not in employment. She lives with the child in Brisbane, Queensland. The mother was born in the Netherlands and came to Australia in 2011 on a working holiday. She has a permanent resident visa. In 2014 she and the father met in Australia on a dating ‘app’ and married in 2015.

3. The parents separated in the Netherlands in late December 2016.

4. At the time of separation the parents were in the Netherlands on holidays. They were due to fly back to Australia on 14 January 2017 and had purchased return tickets for that purpose.

5. The mother contends that separation occurred after she was assaulted by the father. She contends that she decided to stay in the Netherlands with the child where she had the support of her family. Mr Gunst was charged and convicted (in his absence) of the assault of Ms Dittersdorf and ordered to pay compensation.

6. The father denies assaulting the mother in December 2016 or at all and contends that he was in effect ‘set up’ by the mother whom he suspects always intended to stay in the Netherlands during their holiday. His belief is formed in part by the fact that he says she had a copy of his criminal history with her, a fact denied by her, and that upon arrival in the Netherlands the mother arranged, without notice to him, the issuing of a Dutch passport for the child. The father further contends that because the mother’s father is an inspector of police in the Netherlands he orchestrated the father’s arrest and imprisonment for three days. The father returned to Australia on 22 December 2016. The father concedes that the mother offered him an opportunity to see the child before he left the Netherlands but contends that as a result of advice he received from a lawyer he left the Netherlands without seeing the child.

7. Upon his return to Australia, the father commenced proceedings pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Hague proceedings”) for the child to be returned to Australia from the Netherlands. His application was filed in July 2017.

8. In August 2017 an order was made requiring the child to return to Brisbane, Australia so that the competing parenting applications could be determined in the country of the child’s habitual residence. The mother’s appeal against that order was dismissed.

9. The mother returned to Brisbane with the child on 28 November 2017.

10. The father commenced proceedings for a parenting order in Australia in December 2017 and an Order was made by consent in the Federal Circuit Court on 31 January 2018 making provision for the child to spend supervised time with the father for up to four hours each fortnight at the C Town Contact Centre.

11. The matter was transferred to this Court in June 2018 and on 15 October 2018 it was listed for a trial to commence on 25 February 2019.

12. In or about March 2018 the father commenced employment in D Town, Central Queensland. This employment required the father’s absence from Brisbane for four weeks out of each five week period.

13. On 24 April 2018 the father commenced employment in Western Australia at a town nearly three hours by plane north east of Perth and he is absent from Brisbane for over two weeks out of each three week period.

14. Since the parties’ separation in December 2016, the father’s time with the child has been very limited. He travelled to the Netherlands for the Hague proceedings and spent supervised time with the child on one occasion namely, 3 October 2017. Despite the 31 January 2018 Order the father did not commence to spend time with the child until 25 August 2018. The father also spent time with the child during the family report interviews on 10 May 2018 and 21 January 2019.

15. The father currently spends two hours of supervised time with the child on three separate days in each third week.

16. The father has a lengthy criminal history involving violence and five of his previous partners obtained domestic violence protection orders against him. The father concedes breaching a number of the protection orders and bail conditions.

Does the father pose an unacceptable risk of harm to the mother and/or the child by reason of his past violence and drug use?

Admissions by the father

1. The father makes a number of admissions or concessions relevant to this issue, but maintains he does not pose an unacceptable risk of harm to the child. Admissions made by the father include:

   a)His criminal history;

   b)Five previous partners, including the mother in these proceedings, have obtained domestic violence protection orders (DVOs) against him;

   c)He has breached DVOs on a number of occasions;

   d)He has breached bail conditions on about six occasions and on each occasion he was kept in custody overnight;

   e)In 2001 he assaulted a woman while trying to steal her bag;

   f)In July 2004 he threw things at Ms F’s (his then partner) car;

   g)He did lose control “back then” when he was angry;

   h)In July 2006 during an argument with Ms M (his then partner) he bashed on a door during an argument with her and police attended;

   i)There have been many allegations that he has hit women (all of which he denies);

   j)During his relationship with Ms M there were many arguments that resulted in police attendance and him being removed from the property;

   k)On 1 February 2012 he initially lied to police when asked about a break and enter at Ms M’s home by denying he was responsible (he subsequently admitted his involvement);

   l)In November 2013 (when he was either in a relationship with Ms P or it had ended not long before), police attended during an argument he was having with Ms P. (In the current proceedings the father referred to Ms P as the “town push bike” and he explained that by this he meant that she had had sex with a number of men);

   m)In December 2013 he drove a distance of 1 ½ hours for the purpose of assaulting a man. He elbowed the man in the head because he had “slept with my girlfriend”. He then sent the man a message stating – “Karma is a bitch faggot”;

   n)In February 2014 he assaulted another man for allegedly “sleeping with my girlfriend”;

   o)After a DVO was made for the protection of Ms P in January 2014 he published sexual photographs of her on social media and made comments about her “because she had embarrassed me to my family by sleeping with other guys”;

   p)On 17 March 2015 he received a warning from his then employer for “verbal abuse of a supervisor and walked out on a meeting”;

   q)On 23 April 2015 he received another warning from the same employer for “disrespectful behaviour towards the supervisor”;

   r)On 17 August 2015 he received a final warning from his employer for failing a drug test on 1 May 2015 which indicated the presence of anabolic steroids;

   s)In December 2015 he threw his watch at a window in his then residence thereby breaking it (the window) and causing $750 damage. He had completed two anger management courses prior to this incident;

   t)The following email exchange occurred between himself and the mother (as per original):

   i)Email from mother to father 5 January 2016 at 8.06am

   [Mr Gunst],

   I can’t make it to work today my head is pounding. So I’ll be home when you get home. I am lost for words and don’t know what to do or say. The fact that you said last night you could have killed me makes me really upset. I don’t want to risk my life.

   ii)Email from father to mother 5 January 2016 at 8.23am

   That’s not what I said. I’m so upset I can’t even think and do my course, i only want us to be happy, how has it come to this.

   iii)Email from mother to father 5 January 2016 at 8.41am

   You did say that [Mr Gunst] do not lie

   iv)Email from father to mother 5 January 2016 at 8.43am

   You have no respect for me

   v)Email from mother to father 5 January 2016 at 8.47am

   If you can’t owe up to the things you did I really don’t know what to do you. Yes you are right I have not been easy however that is not an excuse to hit me in the head

   vi)Email from father to mother 5 January 2016 at 8.51am

   I have had to tell the trainer we are fighting and I have to sit out this morning. You are ruining our future, I hate you and your pathetic behavior

   vii)Email from mother to father 5 January 2016 at 8.56am

   Am I in danger staying with you?

   viii)Email from father to mother 5 January 2016 at 9.00am

   If you can’t stop the way you speak to me and treat me then yes you are and if you treat anyone that way you would be in danger. No one has ever spoke to me like this or put me down in such a way. Take responsibility for your actions.

   ix)Email from mother to father 5 January 2016 at 9.05am

   No one has ever hit me. You are justifying the reason you hit me. Hitting your wife is off limits or do you think you had the right to hit me? The fact you just said I could be in danger staying with you is terrifying

   x)Email from father to mother 5 January 2016 at 9.05am

   I would rather you punched me everyday because it would not hurt near as much as the mental pain and confusion and heart break you have caused

   xi)Email from mother to father 5 January 2016 at 9.18am

   How dare you saying that? You have no idea how it felt when you punched me

   (The father’s attempts during cross-examination to put an alternative ‘spin’ on the plain meaning of the words he has used was unconvincing. The father maintained throughout the trial that he has never hit or punched a woman.)

   u)The mother was an emotional wreck throughout her pregnancy and wanted to return home to the Netherlands during her pregnancy;

   v)He actively considered the prospect of relocating with the mother to the Netherlands but decided against doing so when his brother said that if the father and mother broke up in the Netherlands the father would never get the child back to Australia;

   w)He stopped drinking (for a period) when he met the mother;

   x)He sent a series of emails to the mother and her family after he returned to Australia in 2016 including (as per original):

   i)Email to the mother 24 February 2017 at 4.10am stating:

   you low cunt trying to take my bond. karma will get you evel fag hag slut

   ii)Email to mother 17 March 2017 at 7.52am

   fuck you all

   iii)Email to mother 17 March 2017 at 7.54am

   I’m everything you all wish you could be your all a bunch of miss fit fuck wits gay loving fat loosers

   iv)Email to mother’s email but directed to her father

   Rene you and your family are all fat pieces of Shit. You will be died soon from eating your self to death and [X] will never remember you looser ass. But she will always love and want her father. I’m everything you wish you could be. Fucking looser.

   The above emails were written despite having completed two anger management courses;

   y)On a number of occasions in January and February 2017 he messaged the mother requesting a paternity test;

   z)He told the court in the Netherlands during the Hague proceedings that he would do what he could to financially support the mother and the child upon their return to Australia and that his family would be able to help care for the child;

   aa)He did not assist the mother to find accommodation and continued to live in the former matrimonial residence for twelve months after the mother and child returned to Australia;

   bb)He did not financially assist the mother until child support was withdrawn from his wage in July 2018;

   cc)He has no family living in Brisbane (and did not have family living in Brisbane at the time of his statement to the court in the Netherlands);

   dd)He asserts that it is not right that he had to pay child support retrospectively for the time the mother and child were living in the Netherlands and as soon as he has the money he will “overturn it”;

   ee)He did not comply with the Order made on 31 January 2018 that he obtain a hair follicle drug test for the presence of anabolic steroids until 23 January 2019;

   ff)He used testosterone tablets for a number of weeks or months in 2015 (the mother alleges he injected steroids, which the father denies);

   gg)He rejects the opinion of the psychologist from whom he says he undertook anger management therapy, Ms D, as contained in her report dated 18 June 2018, that he should continue therapy because “I have no need for it” and such a recommendation was made just so that she or some other therapist could “make more money”;

   hh)Shortly after completing his anger management therapy in 2018 he breached two DVOs - one for the protection of the mother and one for the protection of Ms H (another former partner);

   ii)Despite the mother requesting him not to publish photographs of the child on social media he has done so on more than one occasion and even after a friend of his commented on one of the photographs of the child stating - “She will kill herself soon and you will have [X] back”. The father did not contact his friend to object to the comment.

Criminal history

1. The father’s criminal history commenced in 2001 just prior to his 17^th birthday and his most recent conviction was in January 2019.  

2. On 5 March 2001 the father attempted to grab a woman’s bag and in the process assaulted her. He says that he was the subject of a “citizen’s arrest” involving three men detaining him until police arrived. The father sought to put a positive spin on this act of callous violence and attempted robbery saying that he was trying to obtain funds to buy a replacement phone for his partner at the time, Ms F, after he smashed her phone. The father was convicted on 16 July 2001 and an order was made for “detention 6 months to be served by way of an immediate release order for a period of 3 months”. 

3. In September 2004 the father was charged with a number of traffic offences including dangerous operation of a vehicle and in October 2004 he was convicted and fined $1,200 and disqualified from driving for 7 months.

4. In late 2006 the father was convicted of committing a public nuisance in August 2006. The relevant facts appear in the police records and involve the father colliding with another vehicle, failing to stop and when the driver of the other vehicle caught up with him the father threatened him with a hatchet. The father denies any wrongdoing stating that he was unaware he had collided with the other vehicle because he was driving a large vehicle. In particular, the father denies brandishing a hatchet. The father was fined $900.

5. In early 2007 the father was dealt with for an offence of wilful exposure in December 2006. No conviction was recorded but he was fined $75.

6. In early 2008 the father was convicted of committing a public nuisance in January 2008. The only details of that offence refers to the father engaging in disorderly behaviour on a cruise ship. The father was fined $250.

7. In mid 2008 the father was convicted of breaching a DVO and breaching bail conditions on three occasions between 14 and 28 March 2008. He was placed on probation for 18 months.

8. In late 2010 the father was dealt with for an assault occasioning bodily harm in December 2009. There were also traffic matters. The father was placed on probation for 9 months and ordered to pay compensation of $300. The offence involved an assault on the body corporate manager of a block of units who had asked the father to move his motor vehicle. The facts of the offence include the father saying to the complainant - “Suck my dick you fat bald cunt, what has it go to do with you?”. The father denied making that statement during cross-examination. The father punched the complainant in the face several times before being pulled off by a third party. The complainant suffered “serious bruising and swelling to the left eye. The left eye is almost swollen shut. He has also received deep lacerations and gravel rash to the left elbow and left ankle area. The complainant also has swelling to the left hand and arm and is unable to lift his arm above his hip area. The complainant has been having trouble sleeping at night due to his injuries …”. The father sought to minimise the seriousness of this offence during cross-examination by saying that the complainant was a big man who pressed charges against the father because he had lost the fight.

9. In early 2012 the father was convicted of breaching bail on 1 February 2012 and was fined $500.

10. Later in 2012 the father was convicted of breaking and entering and stealing in January 2012. He was fined $300 and ordered to make restitution of $1,101.25. The premises he broke into belonged to his former partner, Ms M. The facts relating to the offences are that in late January 2012 at 9.00pm Ms M left her premises secure and locked and proceeded to her place of employment. During the night the father lifted the side gate off its hinges, thereby gaining entry to the rear of her property. He then used a tool to lever off the security screen on the outside of Ms M’s bedroom window. When the father’s attempt to open the window was unsuccessful he smashed a glass panel on the front door and reached in to open the door. Once inside, the father entered Ms M’s bedroom and searched through a number of drawers. Ms M discovered the damage at 8.00am the following morning. In February 2012 the father attended the police station and denied any knowledge of the incident. At the conclusion of the interview the father was charged and released on a bail undertaking not to have contact with Ms M. The father breached this undertaking within an hour of his release and was arrested the same afternoon. The father then took part in a second interview during which he admitted breaking into Ms M’s home and causing damage to her home so that she would suffer financial hardship. During the current proceedings the father claimed to have gone to Ms M’s home with the intention of retrieving his boat and that he had broken into her home in search of keys for the boat. No such information appears in police records. Once again the father sought to put a gloss on his conduct on the evening of the offence by saying that he swept up the broken glass so that Ms M’s children would not step on it. Ms M gave evidence in the current proceedings and said that a boat had been purchased during her relationship with the father but as the loan was in her sole name the boat was retained by her. When she came to sell the boat she discovered “beads” had been put in the motor costing her a significant sum to repair.

11. In early 2013 the father was convicted of being drunk and disorderly in February 2013 and fined $500. The facts of this offence, according to police records, are that after the father had been drinking at a country hotel he became extremely agitated and swung a pool cue and smashed it on the pool table. This was followed by his verbal threats of violence to other patrons and the children of the female patrons (although no children were present). The patrons did not know the father. He then removed his shirt and challenged patrons to fight him. He was escorted off the premises but only after pushing the duty manager in the chest when asked to leave. The police located the father in the company of his brother walking away from the hotel. The father had his shirt off and was loudly swearing at persons nearby, challenging them to fight him. When police spoke to the father he was extremely hostile, repeatedly raising his voice and swearing and threatening to ‘bash’ people. The father paid for the damage to the pool table and thus avoided a charge of wilful damage. During cross-examination in the current proceedings, the father denied threatening people or being hostile to police. Indeed, he alleged that people were trying to fight with him. 

1. In early 2014 the father was convicted of assault occasioning bodily harm in February 2014 and sentenced to 2 ½ years gaol suspended for three years and ordered to pay compensation of $600. The circumstances of this conviction are set out below.

2. In mid 2014 the father was convicted of assault occasioning bodily harm in December 2013; contravention of a domestic violence protection order in March 2014 and eight counts of wilful damage in February 2014. He received concurrent sentences of 12 months, 3 months and 6 months but was immediately released on parole. He was ordered to pay compensation of $1,500 and restitution of $5,006.00. The father described himself as “lucky” to have avoided prison on this occasion.

3. The assault conviction for the offence committed in December 2013 involved the father driving from his home town to another town about 1 ½ hours away with the purpose of assaulting a man whom he believed had ‘slept with’ Ms P. The father arrived at a Bar in the town to which he had travelled and approached a man at the bar. After confirming the man’s name, the father put out his hand and as they shook hands the father “without provocation or warning struck the victim across the face with his elbow. The victim has fallen to the ground. There was no prior interaction between the defendant and the victim, and the victim was not in a position to defend himself from the elbow to the face.” There was CCTV footage of the assault. While police were in attendance the victim received a Facebook message from a Mr Gunst which stated “Karma is a bitch faggot”. The police records also note that – “The victim received treatment for a cut to the bridge of his nose and shattered cartilage. The victim has also been suffering severe headaches and struggles to breathe through his nose since the assault”. During cross-examination in the current proceedings the father largely conceded the factual circumstances of this assault although he suggested that the assault upon the victim was not the only purpose of his visit to the town. He also said that before elbowing the man in the face he had told him he was going to do so. The father denied sending the Facebook message.   

4. The offences for which the father was convicted relating to the incidents in February 2014 involved the father attending at a local motel in his home town and assaulting a patron (whom the father believed had ‘slept with’ Ms P). While at the motel the father kicked open the doors to four motel rooms and entered the rooms briefly. The door frames and locking mechanisms to each door were damaged. The father tried to re-enter the motel restaurant but was refused entry. He then picked up a metal bar and smashed the windows of four cars parked outside the motel.

5. In late 2018 the father was convicted of breaching a DVO on 26 July 2018. This involved Ms H.

6. In early 2019 the father was convicted of breaching a DVO. This conviction related to a breach involving the mother.

7. The father seemed to consider “low level breaches” of DVOs as being of no real consequence.  He simply paid the fine. The breach of the DVO in relation to Ms H was particularly cruel as it involved him sending her a photo of himself with X in circumstances where Ms H had undergone an abortion of a child conceived with the father. The background to this breach of DVO involved the father informing Ms H’s mother that Ms H was planning to have an abortion, ostensibly out of concern that she would be killed by her family if she went ahead with the abortion. As a result of his intervention Ms H’s family came to Australia and assaulted her. She was disowned by her family and cannot safely return to live in her home country.  The father did not demonstrate any remorse for the consequence of his intervention during cross-examination in the current proceedings saying “she put herself in danger by having the abortion” and “if she had the child she would have been ok”.

Family violence history

1. There have been numerous DVOs made against the father for the protection of his five previous partners.

Ms F

1. The earliest DVO appears to be in 2004 for the protection of Ms F. The father and Ms F commenced their relationship in 2001 when they were both very young. The father was about 16 and Ms F a year younger. They commenced living together shortly after commencing a relationship and their relationship ended in or about 2005. 

2. Ms F provided an affidavit in the mother’s case at an earlier stage of the proceedings but was subpoenaed by the mother to give evidence at the trial. Notwithstanding the father’s objections, leave was granted to Ms F giving her evidence via video link from an undisclosed location. The positioning of the camera protected Ms F from having to see the father.

3. Ms F describes horrific violence over a sustained period culminating in a high speed car chase as she sought her final escape from him. The allegations she makes against the father include:

   a)The father isolated her from her family and friends whom he threatened to kill if she ever left him;

   b)He smashed at least five of her mobile phones in jealous fits of rage;

   c)During one such rage he drove her car into a pole;

   d)He told her she looked like a “slut”; that she should “get fucked”; that she was just a “piece of shit” and a “waste of time”;

   e)He made her feel worthless and completely indebted to him;

   f)She was regularly beaten and suffered injuries including black eyes, split lip, bloodied nose and severe bruising to her head and arms;

   g)At times he took her into a second bedroom they used as a storage room and he would close all the doors and windows throughout the unit and “hold me to the floor whilst beating me to the head and face and holding the knife” to her throat;

   h)It never took much of a reason for him to become violent;

   i)At times the father was affected by alcohol but not always;

   j)The father was always “quite happy and helpful at trying to cover [the injuries], even buying make-up for me to cover it up”;

   k)He was vicious and calculating.

4. Her oral account of her final escape from the father was chilling. She said the father chased her vehicle swerving in and out of traffic exceeding speeds of a hundred kilometres per hour. At times when he was close to her car he threw objects at her car e.g. tools and gestured to her that she was “dead”. Ms F made it to her parent’s home and the father ceased his pursuit.

5. Ms F describes feeling too ashamed to disclose her years of abuse until she finally escaped and with the support of her family she made a complaint to police. She and her father were escorted by police back to the flat she had shared with the father in order to collect her belongings. Upon arrival Ms F saw that the father had been arrested and as he walked past her and her father, he spat at her and called her “all sorts of insulting names”. The police informed her that there was not much left in the flat as the father had destroyed it all. Upon entering the flat the mother observed that all her belongings including clothes, jewellery, photos and pictures had been either smashed, ripped or otherwise destroyed.

6. Ms F expressed the opinion, based on her experience of him, that the father was an extremely dangerous individual who could be so charming to begin with but by the end of the relationship she was left with “nothing but emotional and physical scars”. She said she remained terrified of him and fears the repercussions of having been involved in the current proceedings.

7. The father denied Ms F’s account of their relationship almost entirely. He conceded throwing “things” at her car but said it had been stationary.

8. The police obtained a DVO for Ms F’s protection. The father breached the DVO by contacting Ms F trying to persuade her to return to him as she regrettably had done on previous occasions.     

9. As the father was self-represented the ICL cross-examined Ms F first. The father’s brief cross-examination of Ms F commenced with a question about her sexual preference which was disallowed.

Ms M

1. Ms M was in a relationship with the father from about 2005 until finally separating in about November 2012. She describes it as an on again off again relationship that was marked by ongoing physical violence and abuse from the father towards her and on occasion her children. Ms M has two children who were about five and three respectively at the commencement of her relationship with the father.

2. Ms M says that she experienced repeated physical abuse which she described in the following way:

   He has never beaten me up, but I’ve had blows and holds and pushes, but not a big punching to the face I don’t think – you know, like if you imagine people punching each other up, not like that. I didn’t go to hospital.

3. She nevertheless suffered injuries such as bruising and “once I was choked to the point I passed out”. Ms M described in detail the occasion where she says she was choked by the father outside a nightclub and passed out, waking up on the ground to see the father running down the street.

4. Ms M also gave evidence of police intervention on a number of occasions during the relationship and two DVOs being taken out for her protection.

5. On one occasion when she and her children were in a bedroom Ms M recalled the father punching a hole in the bedroom door. I note that the police records in July 2006 indicate an incident involving the father and Ms M who lived at the address referred to in the police records which involved the father attending at her home and scaring her and her children so that the mother locked herself and her children in a bedroom and the father bashed the door “causing moderate damage”. The father concedes an incident involving an argument but denies damaging the door and contends that Ms M’s children were asleep. The father repeated a number of times that his relationship with Ms M was “toxic”.

6. Ms M said that the father destroyed property belonging to her on many occasions including pouring water over her laptop; smashing her mobile phones; smashing the windscreen of her car; damaging walls of her home by punching holes in them. Ms M said that on some occasions the father apologised for his actions. She said that he could be very generous “but if I did the wrong thing, everything could be quickly taken away leaving us in a vulnerable position”.  She gave an example of an occasion where she was not home to serve up his dinner so he cleared out all of the food in the house, including all the condiments in the pantry, so that when she and the children arrived home there was no food left in the house.

7. Ms M gave an account of the father’s rage resulting in him picking up a pot of food cooking on the stove and throwing it at the wall. She says this incident occurred in front of her children. She also says that the father admitted breaking her daughter’s laptop in front of the child because he was angry with the child. Ms M describes having “towed the line” and “walked on eggshells” during their relationship.

8. On one occasion Ms M said she had received a message from a male friend on Valentine’s Day which caused the father to become very angry. He threw her phone into the garden and held her in a ‘bear hug’ for quite some time, initially refusing to release her when she asked if she could get a glass of water. When he did release her he came into the kitchen with her and held a knife by his side. She eventually escaped the house and got her neighbours to call the police. Her children were still in the house. When she returned with the police the house was locked up and the curtains were drawn. Police negotiated with the father and were able to gain entry to the home. The father was removed from the house by police. Ms M says that one of her daughters told her that, in her absence, the father told the child that Ms M had been cheating on him. In police records in February 2008 the account of this incident includes a complaint by Ms M that the father had threatened her saying – “If your (sic) lucky enough not to die tonight, you will be a quadriplegic when you wake up in hospital”. The police records also note observing that Ms M had a split lip and swelling.

9. Ms M said that the father could be attentive and fulfilled fathering responsibilities to her children including attending their soccer games, taking them swimming and dropping them off to school if he could.  She also said that Mr Gunst’s family were nice people particularly his mother, who had been very kind to her children.

Ms P

1. The father was in a relationship with Ms P for about 12 months commencing in or about 2012 or 2013. The relationship appears to have ended on or about early November 2013. The mother was unable to locate Ms P.

2. The police obtained a DVO for the protection of Ms P in January 2014 and it remained operative until January 2016. The DVO was served on the father on 25 January 2014 and on 5 March 2014 the father breached the DVO by publishing revealing photos of a sexual nature of Ms P on social media. The father was convicted for the breach in mid 2014 and sentenced to 3 months imprisonment but immediately paroled.

3. The incident resulting in the application by police for a DVO for the protection of Ms P occurred in January 2014. Police records show that at about 9.30am police attended Ms P’s home after a complaint from her that the father was at her home and not meant to be there. Upon arrival, police noted the locking mechanism of the front door to be broken and the door was damaged. No one answered when they knocked so they entered the home while calling out “Police, anyone home?” Ms P ran towards police from the bedroom, crying and asking police to remove the father and stating that he had raped her. The father walked out of the room behind Ms P. When asked what was going on, the father responded, “Nothing, we have just had sex”. Ms P told police that the father had broken into her home and into her bedroom. She said he had pinned her on the ground and while doing so sent a text message to Ms P’s new boyfriend telling him that he had just had sex with her. He told her that if she did not remove her clothes he would hurt her. The father is then alleged to have started rubbing his penis and touching her in the vaginal area. He then placed his penis inside her mouth and said “Suck it or I’m going to hurt you”. He is then alleged to have thrown her on the bed and raped her. The father was detained and transported to the police station. Police returned to Ms P’s home and she told them that the father had filmed the rape on her phone but she would not agree to police viewing it. Ms P refused to make a formal complaint stating that she intended to leave the town immediately and would not return. She said she was extremely frightened of the father and repercussions upon his release. The police records show that police had previously attended a domestic violence incident at the home and held “some very serious concerns for [Ms P’s] welfare”.

4. In the current proceedings, the father concedes he went to Ms P’s home and broke the door down. Initially in his evidence he said he was invited there by Ms P. He later said that he had been told that a man by the name of Joseph was there and that he found them in bed together. He says he punched Joseph who then left. The father says that when police arrived he and Ms P were in the lounge room not the bedroom. He concedes that Ms P was crying. He denies that she complained to police of rape and he denies saying to police “we have just had sex”. I consider it more likely than not that the police records are an accurate representation of what police saw and heard when they attended the property and, in particular, that Ms P complained of rape and the father told police that he and Ms P had just had sex. During the current proceedings the father suggested that his family (some of whom were present during the trial) deserved an apology for having to hear such allegations against him. He was not suggesting that the apology should come from him. 

Ms Dittersdorf (the mother in these proceedings)

1. There is a current DVO in place for the protection of the mother and child issued in March 2018 and it will remain in force until March 2023. The order was made by consent without admission and contains standard conditions including a prohibition on the father contacting the mother except for the purpose of having contact with the child but only as set out in writing between the parties or in compliance with a court order.

2. The father has already breached the DVO on one occasion by talking to the mother during a Skype call with his daughter. The father’s excuse for breaching the DVO was that he was upset about a letter he had received stating that he owed the mother child support and he asked her to remove the debt. He dismisses his breach as “low level”. He was fined $750.[10]

   [10] The conviction in late 2018 for a breach of a DVO in July 2018 relates to the breach of the DVO for the protection of Ms Ahmad, although when questioned, the father was unsure whether this breach related to the mother or Ms Ahmad. He was convicted for another breach of a DVO in early 2019 but could not recall which DVO he had breached.

3. The mother’s relationship with the father commenced in June 2014 and they commenced cohabitation in September 2014. The mother describes the father as charismatic, loving and attentive until they married in 2015.

4. Within a week after their marriage the mother says the father became aggressive, controlling and physically violent. He criticised her appearance and shouted at her if she did not wear clothes that met his expectations. He repeatedly accused the mother of infidelity. He often flew into rages over seemingly insignificant things e.g. if he did not like a meal she had cooked. On many occasions he threw a full plate of food at her and on at least ten occasions this occurred while she was holding the child. On one occasion he threw the child’s milk bottle at the mother and starting screaming at her while the child was in her arms. The mother says that the father broke a number of mobile phones including his own but would make her pay for replacements because he said she was to blame for making him angry. The mother produced bank records indicating the transfer of funds to the father for an iPhone and an iPad. The father’s suggestion during cross-examination that he went through a lot of phones because of the nature of his work was unconvincing and did not explain the records produced by the mother. The mother says that the father frequently called her a “cunt” or a “slut” or a “whore”. The father admits to using such words in his emails to the mother in 2017.

5. In December 2015 the mother says that one of the father’s school friends died and the father was angry because he could not afford to go to the funeral (in another town). He became so angry he smashed their balcony window by punching it. The father admits this incident although he says he smashed the window by throwing his watch at it.

6. In early 2016 the mother says that she and the father were in the elevator at their apartment block. The father in a fit of anger smashed the wall in the elevator causing damage. The father denies this incident.

7. On or about 4 January 2016 the mother says that the father punched her in the head several times and punched a hole in the wall.

8. On 5 January 2016 the email exchange occurred as set out in paragraph 40(t) above. Of particular significance is the mother’s contemporaneous complaint of abuse at the father’s hands and his response that she was in danger from him unless she changed the way she spoke to him.

9. The mother particularises other incidents occurring in late 2016, including the father shouting in her face whilst she was holding the child, pushing her and punching her on the head, and calling her derogatory names.

10. In late 2016, several days after their arrival in the Netherlands for what was intended to be a holiday, the mother describes a violent attack on her by the father. The mother says that the father punched her in the left eye and she put her hand up before being struck for a second time, this time on the hand that had been covering her eye. Photographs taken by police in the Netherlands depict bruising to the mother’s left eye and left hand. The father denies any physical assault on the mother and asserts that the mother punched herself in the eye. Police attended and the father was arrested and placed in gaol for three days. He was provided legal assistance by Dutch authorities. The father was convicted and fined for the assault in the Netherlands in his absence, as he had already left the country.

1. This assault resulted in the mother disclosing to her family, for the first time, the abuse she had allegedly endured at the father’s hands during their marriage.

Ms H

1. The father commenced a relationship with Ms H in April 2017, which ended in January 2018. Ms H obtained a DVO against the father. The father admits to breaching the order but again dismisses the breach as “low level”. He was fined $1,000.

2. The father admits sending Ms H a photograph of himself and the child contrary to the DVO. I reject his contention that his intention was to wish Ms H a happy birthday and let her know that he was going well. Ms H was the person who had undergone an abortion and was beaten by her family as a direct result of the father’s intervention in her private life. In my view the photograph was not only knowingly in breach of the DVO but also a cruel act on the father’s part.

3. It is unclear on the evidence whether or not there is a current DVO in place for Ms H’s protection. The mother was unable to locate Ms H’s whereabouts.

Drug abuse

1. As noted above, the father admits to failing a drug test administered by his employer on 1 May 2015. Anabolic steroids were detected and the father received a final warning from his employer.

2. In early 2016 the mother says that she walked in on the father injecting a substance into his bottom. The father allegedly admitted to the mother that he was injecting anabolic steroids. While the father admits to this Court using anabolic steroids for a period of weeks or months he says that he took testosterone tablets only and did so because workmates said that the mother’s prospects of becoming pregnant would be enhanced.

3. In January 2018 the father was ordered to submit a hair follicle for testing of anabolic steroids. The father provides numerous excuses for failing to comply with this Order until 23 January 2019. None of his excuses were convincing and none provided a satisfactory reason for his failure to comply with a court Order. The result of this test was negative for the presence of anabolic steroids in the three months prior to 23 January 2019.

Conclusion as to whether or not the father poses an unacceptable risk of harm to the child

1. While the father denies any physical violence to women save for an unprovoked assault on a woman in 2001, he admits to what were clearly premediated assaults on three men whom he believed had engaged in sexual intercourse with Ms P. He also admits to a vicious assault on a body corporate manager. While alcohol may have played a part in one of the assaults it was not a feature in the others. The rampage the father engaged in after the assault in February 2014 was extreme and would have been terrifying for not only those directly affected but also on any innocent witnesses to his violence.

2. The father admits to a history of verbal abuse of each of his former partners but gave me the clear impression he did not consider verbal abuse to be particularly serious.

3. The mother, Ms F and Ms M each describe being referred to by the father in the vilest of terms e.g. “cunt”, “slag”, “slut”. Each of them describe the detrimental impact his repeated verbal abuse had on their self-esteem and confidence. Each of them describe his propensity to fly into a rage over mundane matters e.g. throwing food if he not like what was prepared for him. Each of them describe how the father blamed them for his violence. The father isolated them from their respective families and friends. He intentionally inflicted financial hardship on them e.g. clearing out Ms M’s home of food and destroying property belonging to each of them. I accept their evidence.

4. The father’s response to the many allegations of violence against him by his former partners was to repeatedly state – “I have never hit a woman”. The father did not demonstrate any comprehension of the destructive nature of demeaning, insulting and abusive language on a person, let alone on someone he supposedly loved.

5. The father also admits to repeated breaches of bail conditions and DVOs, dismissing these serious contraventions of the law as “low level”. He seems to be of the opinion that paying a fine alleviates his responsibility for any behaviour that resulted in a conviction against him.

6. The mother, Ms F and Ms M all gave detailed and convincing accounts of the physical violence they each endured throughout their relationships with the father. Police records corroborate a number of events recounted by each of the witnesses, including photographs in the case of the injuries caused to the mother in late 2016. I find that each of them endured repeated physical assault and that the perpetrator was the father.

7. I reject any suggestion that the evidence given by Ms F or Ms M should be discounted because they became friends after their respective relationships with the father ended.

8. I also reject the father’s contention that the mother fabricated the assault in late 2016 as part of an elaborate plan to ‘kidnap’ the child and remain in the Netherlands. The parents had planned a holiday. They purchased return tickets. The mother took very few possessions. The parents stayed in a house swap property with the child and had the mother’s family over for dinner. Importantly, the mother stayed with the father from the time of their arrival in the Netherlands in early December 2016 until the assault in late December 2016. If the mother had a plan to leave the father when she arrived in the Netherlands she had plenty of time to do so before the assault. I accept the mother’s evidence that prior to the assault in late December 2016 she was embarrassed to tell her family about the father’s history of abusing her. But for that attack in late December 2016 and having her family close by, the mother may well have endured the ongoing violence and remained in the marriage.  

9. The father maintains that he is a changed man since the birth of his daughter in mid 2016. I reject that contention because the father abused and assaulted the mother in early December 2016 and again in late December 2016. He also sent the mother emails in early 2017 calling her a “cunt” and a “slut” and the father has had yet another former partner i.e. Ms H take out a DVO against him as recently as April 2018 and admits breaching the DVO.[11]

   [11] A temporary order was taken out for the protection of Ms Ahmad on 23 April 2018 and a final order was made on 24 May 2018.  The father breached the DVO on 26 July 2018.

10. Much of the violence perpetrated by the father occurred after he had completed anger management courses. One can only wonder at the utility of requiring someone with the father’s mindset to undertake anger management courses. Clearly he has learnt nothing and he rejected the opinion of Ms D that he required further therapy.

11. While the father contained himself throughout the trial I do not regard his ability to do so as indicative of an ability to contain himself generally. Each of his former partners described good times during their respective relationships with him when he was generous and loving, yet each described how he could revert to violence for no rational reason.

12. Clearly his charisma was on full display during the supervised visits with his daughter. One of the supervisors, Mrs E, was highly critical of the mother and I consider her comments about the mother to be both ill-informed and exceeding her remit. Another employee of the current supervising centre, Ms J, includes in her notes purely self-serving comments made by the father to her and I can only wonder why the father was invited to engage with Ms J in the way he did. I would encourage both Mrs E and Ms J to reflect on their roles and encourage them to undergo further training so that they understand the need for impartiality at all times. The ICL is encouraged to share my comments with each of these women.

13. Mrs E from Y Contact Centre made the following comments about the mother in written reports (as per original):

    Ms [Dittersdorf] was observed to be extremely controlling of all arrangements pertaining to supervised contact and X having anything to do with her father. Ms [Dittersdorf] was observed to be undermining of any healthy co-parenting where the father Mr [Gunst] was concerned.

    Ms [Dittersdorf] was observed to be using very restrictive gatekeeping where the mother is not supportive of the father’s involvement; does not recognize the value of the father for the child’s development; and is actively hindering the father’s involvement.

    It is my observation of Ms [Dittersdorf’s] irrational conduct and unremitting mandate during supervised contact, that Ms [Dittersdorf’s] ‘style’ of High Conflict parenting will probably not stop in the near future.

    …

    Mr [Gunst] was reasonable and polite to all, rational to communicate and deal with, as well as organised, punctual, and sensible with all matters pertaining to the child X and supervised contact.

14. Ms G from X Group (the current centre providing supervision) included the following in her written report dated 23 January 2019 (as taken from the notes of Ms J):

    During our initial intake interview with Mr [Gunst] we encountered a man who presented with a calm demeanour. Mr [Gunst] described his version of events that led to the breakdown of his marriage whilst in the Netherlands and thus the cessation of the custody of his daughter.

    He explained many happenings which would have easily caused one to be bitter and extremely angry, however Mr [Gunst] remained calm during this recount. When asked why he is not rancorous towards his now ex-wife, and how he can recount the situation without animosity, his reply was that his Mum had always taught him coping strategies rather than anger. …

15. The last comment attributed to the father in the quotation above i.e. Mum had always taught him coping strategies rather than anger, is deserving of derision given the father’s admitted history of violence. While the father was not cross-examined about this comment, he tendered Ms G’s report in his case thereby adopting its contents.  

16. The fact that the father is capable of presenting in such a positive light causes me to have significant concerns about whether supervision is able to protect the child from the father in the future.  The father is manipulative (as demonstrated by the comments expressed by Mrs E and Ms G) and he is more than capable of using any opportunity to say things to the child that may impact on her relationship with her mother. The mother was right to be concerned about the father and child playing at some distance from the supervisors. The child may be too young at the moment to be greatly influenced by the father but she will not be immune from his ‘charms’ in the future.

17. I also accept the mother’s evidence that she observed the father injecting himself during their marriage and his admission to her that he was injecting anabolic steroids. I reject the father’s numerous excuses for failing to comply with the 31 January 2018 order and find it more likely than not that he delayed until he was confident that there would be no anabolic steroids detected in the drug test.

18. The ICL recommends long term supervision despite being unable to articulate any ‘cogent reason’[12] for same, only a forlorn hope that, in time, circumstances might arise where supervision could be removed. Ms T, the family report writer, opined that ongoing supervision is really only viable if there is likely to be a move to unsupervised time and that children in long term supervision are likely to become bored and resentful. I accept her opinion.

    [12] See Moose & Moose (2008) FLC 93-375, [10].

19. While the child appears to have a loving relationship with the father at the moment, she is only 2 ½ years of age and I am not persuaded that a long term supervision order can be justified in this case as I have no confidence that the need for supervision will dissipate given the father’s history of violence and his lack of insight and lack of remorse for his behaviour.

20. The father poses an unacceptable risk of physical and psychological abuse to the child which cannot be ameliorated with supervision.

Will the mother facilitate and promote a relationship between the father and the child?

1. The mother has in my view shown extraordinary fortitude in facilitating the child developing a relationship with the father despite the mother’s fear of the father. While understandably reticent, the mother abided by court orders for supervised time (her initial failure to present the child for supervised time after the January 2018 Order is understandable given the confusing content of the Order) and she has gone beyond what was required of her in the Order.

2. The mother recognises a need for the child to know that she has a father and who he is. This is, in part, she says, for her own protection against possible criticisms by the child in the future e.g. that she deprived the child of her father.

3. Given my findings about the father I consider the order proposed by the mother relating to the child spending time with the father only if the mother agrees, to be an entirely appropriate safeguard.

Will the mother comply with court orders in the event that her application to relocate with the child to the Netherlands is successful?

1. The mother was ordered to return to Australia pursuant to the obligations arising under the Hague Convention. The court in the Netherlands was not purporting to determine a parenting order, merely to fulfil its obligations under the Hague Convention. The mother was unsuccessful in resisting the application but she had every right to exercise her legal rights to do so and to appeal against the original decision. Once she had exhausted her legal rights she complied with the order to return.

2. It is unfortunate that the mother went to the media before departing the Netherlands and, in the process, divulged the identity of her daughter. The mother was wrong to do so and it was a futile exercise. The mother should not feel any sense of vindication for her actions by reason of my decision.

Will the father comply with court orders?

1. The father has a long history of breaking the law. He was cavalier in his admissions of breaching DVOs and bail conditions.

2. The father even failed to comply with my order relating to the preparation of his case for trial.

3. The mother will be permitted to relocate with the child as soon as possible. She will be under no obligation to inform the father when she will be departing or where she will be living. It is to be hoped that distance will provide the mother and child with a level of protection.

Can the mother live and work in Australia in the event that she is not at liberty to relocate with the child from Australia?

1. Although I propose to permit the mother to relocate with the child I accept the mother’s evidence that she has been unsuccessful in her attempts to obtain employment in Australia since her return in November 2017. The mother has a permanent residency visa. There was no suggestion that, if required, the mother could not remain living in Australia.

What is the likely impact on the mother’s parenting capacity if she is unable to relocate with the child to the Netherlands?

1. The mother would find life difficult if she had to remain in Australia without family support and the mother continues to live in fear of the father, but it was not argued that her parenting capacity would be so impaired as to seriously impact on her care of the child, if she had to remain in Australia.

2. The mother has sought appropriate support from a psychologist and her family would no doubt continue to do what they could to support her. 

Can the father relocate to the Netherlands?

1. The father proposed relocating to the Netherlands as one of his possible options although he asserted that his criminal history would make it difficult for him to obtain employment. He did not give me the impression that he would be likely to relocate.

Do the parents have the capacity to make joint decisions about major long term issues in relation to the child?

1. The parents do not have the capacity to make joint decisions. Given the history of family violence the presumption does not apply and an order for equal shared parental responsibility would not be in the child’s best interests in any event.

What were the circumstances of the mother’s departure from Australia in 2016 and retaining the child in the Netherlands until being forced to return to Australia under a Hague Convention Order?

1. The mother and father left for the Netherlands in December 2016 with return tickets and few possessions i.e. just what they needed for a holiday. They planned to return to Australia in January 2017 and would have done so but for the father’s attack on the mother in late December 2016.

2. The parents agree that they had discussed relocating to the Netherlands and given the mother’s heritage it was understandable that a Dutch passport was obtained for the child. The father signed the passport application, knowing what the application was and I do not accept that he was caught by surprise when they arrived in the Netherlands and attended the passport office. It is more likely that it was a planned visit, as the mother says, to coincide with the parties’ arrival at the airport given that is where the passport office is located.

3. As already stated the mother took all possible legal steps to resist being forced to return to Australia but did so when no other option remained.  

If the mother is able to relocate with the child to the Netherlands what orders might assist in ensuring the father’s continued relationship with the child, if it is considered to be in the best interests of the child to have an ongoing relationship with the father?

1. I do not consider it is in the child’s best interests to have an ongoing relationship with the father other than as proposed by the mother e.g. communication by FaceTime, and as otherwise determined by the mother if and when she is persuaded that the father has changed for the better and the child can be safe. 

Is the father’s safety at risk if he returns to the Netherlands and in particular is there a prospect of his being killed at the instigation of the maternal grandfather?

1. There is no evidence that the father would be at risk if he returned to the Netherlands. In fact, the father did return to the Netherlands for the Hague proceedings in 2017.

other matters

1. The terms of the order proposed by the mother[13] and largely adopted by the ICL contain provisions which in my view are not easily amenable to enforcement e.g. the mother to “reasonably consider” the father’s opinion in relation to a major long term decision relating to the child or requiring “any form of consultation” to be carried out “in good faith”. I will however include a statement of the mother’s intentions as a notation to the order.

   [13] See Exhibit 14.

2. The mother’s proposed order also contains a provision that the parents not consume “illegal drugs”. Firstly, there is no evidence that the mother has consumed illegal drugs and further it is inappropriate for a court to prohibit something that is already prohibited at law. Making such an order may give a false impression that this Court is somehow condoning illegal activity at times other than when a parent is spending time with a child.[14]

   [14] See Mahoney & Houston [2018] FamCA 71, [113] and Colgan & Colgan[2014] FamCA 828.

3. The mother’s proposed order also contains a provision for the child to communicate with the mother if she is spending time with the father. As I do not propose to make an order for the child to spend time with the father (other than as agreed by the mother) I do not see the necessity for making such an order. No doubt it would be a condition of the mother’s agreement that the child be permitted to communicate with her in the unlikely event she were spending unsupervised time with the father.

4. The mother also proposes (and is supported by the ICL) that the father communicate with the child each week. I must say I have some misgivings about the frequency of such communication but I propose to accede to the proposal given the mother and child will be safely in another country and the mother can monitor the content of any discussion between the father and the child. The mother is conscious of balancing the child’s right to know her father with keeping her safe.

1. Having regard to the father’s history of family violence I consider it appropriate to grant the injunctions sought by the mother particularly where it is proposed that the Order be registered in the Netherlands.

conclusion

1. The father has a history of violence and I have found that he has perpetrated family violence (including verbal and physical violence) on his former partners. I have found that the father has the ability to manipulate people into thinking he is the innocent party and deserving of sympathy.  The combination of these findings causes me to conclude that the father poses an unacceptable risk of harm to the child that cannot be ameliorated by supervision.

2. The mother wishes to return to live in the country of her birth with the child where she has the support of family. The mother has been unsuccessful in finding employment in Australia since her return in November 2017. Despite the father’s representation to the court in the Netherlands that he would assist the mother financially, he failed to do so until commencing to pay assessed child support in July 2018. The mother survives financially on social security payments. While the mother’s parenting capacity would not be completely compromised by having to remain in Australia, her financial and emotional circumstances and importantly, her safety, will be enhanced if she is permitted to relocate with the child to the Netherlands. I consider that it is in the best interests of the child to live with her mother and that the mother should be permitted to relocate with the child to the Netherlands.

3. The father demonstrated no insight into the damage his behaviour has caused to his former partners. He showed no remorse and made this extraordinary statement when asked about his treatment of women:

   I have reflected on the women that I have dated and I think that I have had a fairly poor choice in the women that I have dated in the past and definitely also need to look at that going into the future as well. 

4. If the father truly wants to have a meaningful role in his daughter’s life he needs to acknowledge his history of violence to his former partners and others and his pattern of destructive behaviour. I can only encourage him to seek long term therapy from a skilled psychologist or other professional as recommended by Ms D.

I certify that the preceding one-hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 March 2019.

Associate: 

Date:  8 March 2019