Haak & Haak - [2022] FedCFamC1F 769

Federal Circuit and Family Court of Australia
(DIVISION 1)
Haak & Haak [2022] FedCFamC1F 769

File number(s): BRC 1036 of 2017

Judgment of: HOWARD J

Date of judgment: 12 October 2022

Catchwords: FAMILY LAW – PARENTING – Where the father consumed excessive amounts of alcohol over a long period of time – Where the father perpetrated family violence – Where the mother and the children were exposed to the family violence perpetrated by the father – Where the father pleaded guilty to one count of strangulation of the mother – Where the father pleaded guilty to one count of contravention of a domestic violence order with a circumstance of aggravation – Where the father served a term of imprisonment in respect of those convictions – Consideration of risk issues – Consideration of the possible amelioration of risk issues – Best interests – Where the children expressed wishes not to spend time with the father – Where the father continues to consume alcohol – Where the father amended his case during the course of the trial and sought only supervised time with the children – Where the mother and the Independent Children’s Lawyer sought an order that there be no time between the children and the father – Where the overwhelming weight of the expert evidence leads the Court to conclude that there is an unacceptable risk of emotional harm to the children from the father even if time was supervised at a contact centre – Order that there be no time between the children and the father – Where the evidence reveals a pathway for the father to follow in the future – A consideration of whether the children are Aboriginal children.

Legislation:
Evidence Act1995 (Cth) s 128, 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 61DA, 65DAA

Criminal Code Act 1899 (Qld) ss 315A, 564(3A)

Domestic and Family Violence Protection Act2012 (Qld) s 177

Cases cited:
A v A (1998) FLC 92-800

Amador v Amador (2009) 43 Fam LR 268

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ vVAJ (1998) 197 CLR 172

Cox v Pedrana (2013) 48 Fam LR 651

Cubbin & Cutler [2018] FamCAFC 84

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Harridge & Harridge [2010] FamCA 445

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen [2022] FedCFamC1A 97

Johanson & Johanson [2022] FedCFamC1A 74

M v M (1988) 166 CLR 69

N & S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Rice & Asplund (1979) FLC 90-725

SPS v PLS (2008) FLC 93-363

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Place: Brisbane

Date of hearing: 6, 7, 8 and 9 June 2022

Date of last submission/s: 9 June 2022

Number of paragraphs: 258

Counsel for the Applicant: Mr Taylor

Solicitor for the Applicant: Legal Aid Queensland

Counsel for the Respondent: Mr Seewald

Solicitor for the Respondent: Smithson Lawyers Gold Coast

Counsel for the Independent Children's Lawyer: Mr Ashcroft

Solicitor for the Independent Children's Lawyer: Dooley Solicitors
ORDERS

BRC 1036 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HAAK

Applicant

AND:
MR HAAK

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

12 October 2022

THE COURT ORDERS ON A FINAL BASIS THAT:
1.The children (X born on … 2009 and Y born on … 2012) live with the mother.
2.The mother have sole parental responsibility for the children.
3.The father shall spend no time with the children and nor shall the father communicate with the children except as outlined in these orders.
4.The mother is granted permission to relocate the residence of the children forthwith.
5.For the purposes of Section 11 of the Passports Act 2005 (Cth) (the Passports Act) this Order expressly permits the issue of a Passport or Travel Documents (within the meaning of the Passports Act) for the Children, X born on … 2009 and Y born on … 2012, upon application by the mother and without the consent of the father and without the signature of the father.
6.The children are permitted to travel outside the Commonwealth of Australia.
7.The mother is permitted to travel outside the Commonwealth of Australia with the children.
8.The father is permitted to send the children letters and gifts on their birthdays and at Christmas. The mother shall vet the letters and gifts to ensure they are child focused.
9.To facilitate the receipt of the letters and gifts, the mother shall provide to the father a postal address within sixty (60) days of the date of this order.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haak & Haak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
background

The applicant in this matter is Ms Haak, born in 1985 (“the mother”). The mother was born in Country Z. She moved to Australia at the age of 11 and is an Australian citizen. Her first language is not English but she speaks and reads it fluently. The mother is currently living at an undisclosed address known to the Court.
The respondent is Mr Haak, born in 1979 (“the father”). The father was born in Suburb A, New South Wales. He currently lives in Suburb B, Queensland.
The parties commenced a relationship together in or around 2004 and began living together sometime in 2006. The parties married in 2008. The parties separated in July 2016. The mother gave evidence that they briefly resumed their relationship in early 2018 – however this only lasted for a period of 3 weeks and the parties separated again on a final basis thereafter. A divorce order was made by a Registrar of the Federal Circuit Court of Australia[1] on 21 August 2019 and the order became absolute on 22 September 2019.
[1] Now the Federal Circuit and Family Court of Australia (Division 2).
The parties have two children together from their relationship: X born in 2009 and Y born in 2012 (“the children”).
The parties were unable to come to an agreement as to the living arrangements for the children after their separation in 2016. The father filed an Initiating Application in the Federal Circuit Court of Australia on 8 December 2017 seeking parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The mother filed a Response to the Initiating Application on 28 March 2017 seeking both parenting orders and property orders.
The parties settled their property proceedings on a final basis at a Conciliation Conference before a Registrar on 5 October 2017. The Registrar made final property consent orders on 30 October 2017.
The first set of parenting proceedings were settled by way of consent orders on a final basis. The Order was made by his Honour Judge Baumann (as his Honour then was) on 8 December 2017. By those orders, the parties were to have equal shared parental responsibility; the children were to live with the mother; the children were to spend time with the father as agreed but failing agreement each alternate weekend from 5.00pm on Friday until before school on Monday; school holiday time with the father was to be as agreed between the parties; and telephone time was to occur with the non-resident parent each Wednesday & Saturday from 5.00pm to 5.30pm.
After the making of the final parenting orders in December 2017, the parties reconciled for a 3 week period. As noted, the final separation occurred in early 2018.
As noted, previous final parenting orders were made (by consent) concerning the children on 8 December 2017. In Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), the Full Court said at 78,905 that for the Court to allow parties to re-litigate after the making of previous final orders, there needed to be “some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”.
It should be noted that this “rule” in Rice & Asplund can be applied either as a preliminary question before a final hearing or after a full final hearing. This much was made clear by Warnick J sitting as the Full Court in SPS v PLS (2008) FLC 93-363 (“SPS v PLS”). The application of the rule after a final hearing was discussed by Warnick J in SPS v PLS at [72] –[73], where his Honour stated:-
“…While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.”
So as to not “cast aside” the application of the rule – I am of the view that there has undoubtedly been a significant change of circumstances of the kind discussed by the Full Court in Rice & Asplund and SPS v PLS which warrant this Court considering the mother’s new Part VII application. The father’s criminal conduct perpetrated against the mother in April 2019 led to him being charged, convicted and imprisoned. The children have not seen their father since the events in April 2019 – now over 3 years. The children have also expressed a strong desire not to see their father.
The mother filed the current initiating application on 7 April 2020. It was first returnable before me (then sitting as Judge of the Federal Circuit Court of Australia) on 21 November 2019. The father was at that time on remand pending determination of his criminal proceedings resulting from the April 2019 events. On 21 November 2019, the Court made the following interim orders:
“1.      That the Orders dated 8 December 2017 be suspended until further order.
2. That the children [X] born […] 2009 and [Y] born […] 2012 (“the children”) live with the mother.
3.        That the mother have sole parental responsibility of the children.
4. That the children spend no time or communicate with the father until further order.
5. That within twenty-eight (28) days of the date of this order, the father is to file and serve a Response, supporting Affidavit and Notice of Risk.
6. That the children [X] born […] 2009 and [Y] born […] 2012 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.
7. That this matter be adjourned for Mention to 9:30a.m. on 7 April 2020 in the Federal Circuit Court of Australia at Brisbane.
8.        That the father has leave to appear by telephone on 7 April 2020.”
When the matter again returned before the Federal Circuit Court of Australia on 7 April 2020, the Independent Children’s Lawyer (Mr Dooley) had been appointed and appeared on behalf of the children. Further directions and orders were made and the matter was transferred to this Court.
On the application of the police, a final Protection Order was made in the Magistrates Court of Queensland in December 2020 naming the father as the respondent and the mother as the aggrieved, with such order to remain in place until 2025.
There has been a significant change in circumstances in respect of this family. The change (indeed, the changes) are significant and warrant the Court revisiting the matter with a view to making orders in the best interests of the children – having regard to their current circumstances.
The proceedings currently before this Court were filed on 25 July 2019 by the mother. In her Initiating Application filed 25 July 2019 in the Federal Circuit Court of Australia, the mother sought orders (on both an interim and final basis) that the earlier final orders of 8 December 2017 be suspended, that the children live with her and that the children spend no time and have no communication with the father. Essentially, they were the final orders sought by the mother on 9 June 2022 (contained in Exhibit 21). In his Response filed 9 January 2020, the father sought an order that the children live with the mother and spend alternate weekends and holiday time with the father. At the conclusion of the final hearing (on 9 June 2022) during closing addresses, the father (by his counsel, Mr Seewald) sought an order that the children live with the mother and spend supervised time with the father – with such time to progress to unsupervised time (see the father’s minute of orders sought in Exhibit 20).
Section 60CA and Section 60CC
The making of a parenting Order requires the Court to consider the various matters contained in Part VII of the Act. The best interests of the child are enshrined in Part VII in s 60CA. Section 60CA provides:-
“60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC then states how it is that a Court is to determine what is in a child’s best interests. Section 60CC(2) sets out the primary considerations. Sections 60CC(2) and 60CC(2A) provide:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
…”
There are additional considerations stated in s 60CC(3) and I will refer to the relevant parts of that subsection later in these Reasons for judgment. However, it is particularly pertinent to note here that the Parliament has mandated that “the need to protect the child[ren] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” is to be at the forefront of the Court’s consideration (note ss 60CC(2)(b) and (2A)).
In relation to Part VII applications generally, I note the following principles which emanate from the authorities:
(a)The Court is not required to consider the various sections and subsections in any specific order: Cox v Pedrana (2013) 48 Fam LR 651 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
(b)In Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63] – the Full Court noted that the Court:-
“…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
(c)This approach by the Full Court is in line with authority from the High Court. In this regard, I note Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) at [62], where Gleeson CJ, McHugh and Gummow JJ stated, inter-alia:-
“[62]… A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”
(d)More recently, in Eagle & Scarlett (No.2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43], the Full Court supported this approach from Whisprun.
(e)In Baghti, the Full Court also relied on the decision of Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 – where Mahoney JA stated at pp.385–386, inter-alia:-
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
In relation to s 60CC of the Act, the Court is required to “consider” various matters when determining what is in the best interests of the children – but this does not mean that the Court must specifically mention each factor. In Cubbin & Cutler [2018] FamCAFC 84 (“Cubbin & Cutler”) the Full Court at [12]–[13] stated, inter-alia:-
“[12] The primary judge set out at [224] what he found to be the most significant of the father’s contentions. We are not persuaded that he failed to consider these, even if he did not address them by reference to s 60CC. It was not obligatory to do so since the only obligation on a judge in dealing with the s 60CC factors is to “consider” them.
[13] It is erroneous to suggest…that there is an obligation to give reasons about each s 60CC factor. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. The obligation requires only articulation of the essential basis upon which the decision was reached so that the parties (and the appeal court) can understand the reasoning and so that justice can be seen to have been done: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ; Bennett and Bennett (1991) FLC 92-191 ; SCVG & KLD (2014) FLC 93-582 ; and Banks & Banks (2015) FLC 93-637 .”
(Emphasis added)
Sections 60CC(2) and 60CC(2A)
There was a significant amount of evidence in relation to the father’s consumption of alcohol in this case. There was also a significant amount of evidence in relation to family violence perpetrated by the father. Some of the mother’s evidence in relation to these issues is set out below. I accept the mother’s evidence.
The parties first met when the mother was only 14 years old. The father was a friend of the mother’s cousin.
The parties met again as adults and started dating in around mid-2004.
The father was, initially, very charming and attentive as a partner.
The mother liked the fact that the father was involved with the church – as the mother is also a religious person.
As the relationship progressed, the mother became concerned about the amount of alcohol the father was drinking when they were at social events.
In particular, the mother noticed that, when at a social event, the father did not stop at one or two drinks but he drank through to intoxication on most occasions when he did drink alcohol.

When the father became intoxicated he became very aggressive towards the mother and towards other people – including strangers.
When the father was intoxicated – the mother found it very confronting and found it difficult to deal with the father. In those situations, the mother felt intimidated and scared when the father behaved aggressively – because the mother was not able to stop the father from behaving in such a manner.
The father would (at this time) often apologise the next day and would say to the mother such things as, “I'm sorry, I just drank too much, I won't do it again”.
At this time, the mother wanted to believe the father when he said that he would stop drinking.
The father’s drinking through to intoxication continued most weekends and eventually the father told the mother, “you should accept me for who I am”.
Throughout the relationship, the mother saw the father regularly take Valium – apparently to help him sleep.
Once the parties commenced living together – if the father did not like what the mother was wearing he would say words to the effect of, “you aren’t wearing that, go and change”.
The mother did not feel that she could disagree with the father. If the mother tried to argue or stand up to the father when he told her to do something – the father’s level of aggression would escalate without warning, and he would stand over the mother and scream at her until the mother did what he said.
The mother is a very non-confrontational person and the father’s behaviour normally shocked her into silence and she did what she was told by the father.
The father had a very negative attitude about violence towards women.
The father commenced talking very negatively about the mother in front of friends and family (note paragraph 73 of the mother’s trial affidavit filed 13 May 2022).
Even when the mother was working – the father expected the mother to complete all the household chores. If the father was not satisfied with the manner in which the chores were completed, he would scream and yell at the mother and use words such as “useless” and “lazy”.
The father insisted that his dinner be on the table when he got home from work – irrespective of whether the mother had been working outside the home that day.
In 2007, the mother put on a birthday party for the father (a surprise party) and the father became very intoxicated (drinking about a carton of beer and some wine) and during this time was swearing and yelling things at the mother such as, “you fucking idiot”. Also at this party, the father started trying to punch people who were present at the family home. It became extremely embarrassing and most people left. A few members of the father's family stayed and helped the mother put the father to bed. The following morning, the father apologised for his behaviour.
After the incident at the father’s birthday party in 2007, the father ceased the consumption of alcohol for a few days – but this did not last.
The parties married in 2008 despite the fact that the maternal grandparents and the paternal grandmother had raised concerns with the mother about the father’s behaviour towards the mother and each of those persons (the maternal grandparents and the paternal grandmother) told the mother to reconsider marrying the father.
At that time the mother did not understand that the father’s behaviour towards her (in many respects) was a form of domestic violence and she felt trapped with the father and the mother wanted to believe him when the father told her that he would stop drinking.
Soon after the parties were married the father’s alcohol consumption increased and he began to drink alcohol most nights. The father told the mother that he needed alcohol to sleep.
The eldest child (X) was a planned pregnancy and before the mother fell pregnant, she had a discussion with the father and the father agreed that he would stop drinking alcohol. Unfortunately, this did not occur and the father continued to drink alcohol throughout the pregnancy.
At about this time (when the mother was approximately three months pregnant with the child X) the father went to a friend’s house to drink alcohol and when he came home at 11:30am he started yelling at the mother saying the following, “you are hopeless” and “I let you be a stay-at-home mum but you can’t even have my lunch ready”.
When the mother was approximately seven months pregnant with the child X, the father went to a friend’s house to drink alcohol and when he came home he slammed the front door and banged doors and other things downstairs in the house. The mother pretended to be asleep and she was very intimidated and afraid. The father got into bed with the mother but got up again a few minutes later and started punching the walls and the door without any warning and was mumbling some words that the mother could not understand. The father was also swearing. The mother was extremely frightened. The next morning the mother cleaned a walk-in wardrobe because the father had urinated in the wardrobe.
The father continued to be aggressive and verbally abusive towards the mother throughout her pregnancy and towards the end of the pregnancy he was verbally abusive towards her on most days.
The father was particularly upset in relation to issues concerning money and the father would yell at the mother and make her feel guilty for taking time off work (presumably because of the pregnancy).
The mother did all she could to avoid provoking the father.
After the death of the paternal grandfather in 2009 the father’s consumption of alcohol increased significantly.
The father was verbally abusive towards the mother and he would, on a regular basis, swear at the mother and denigrate the mother.
The mother encouraged the father to see a person named Dr C from the D Church. It seems that the father received counselling from Dr C for a period of about one year – in or about 2010 – and the father reduced the amount of alcohol that he was consuming. The father also obtained a full-time job in community services.
During 2010 – even though the father was not drinking as much – the father continued to be aggressive towards the mother and he continued to denigrate the mother and was controlling of the mother. The father controlled the finances for the family.
The mother provided the care for both X and Y.
The mother went back to work when Y was about six months old – as the family was struggling financially.
When the father had a job in 2012 (a full-time role) he would, on most nights, arrive home from work and sit in the lounge room and start drinking. The mother would take the father’s dinner to him. The father would drink until he was intoxicated and then fall asleep. At that stage, on average, the father was drinking between 12 and 24 stubbies of beer per session. If the father was drinking wine he would drink approximately two bottles per day. Notwithstanding the fact that the family was struggling financially, the father continued to purchase alcohol every few days. When the mother addressed this issue with the father, the father stated, “I will do what I fucking want”.
The father’s control of the family finances continued, and it seems, increased at this time. The father would get angry with the mother whenever she spent money on items for the children, telling the mother that she was buying “rubbish” and “wasting money”.
The father’s denigration of the mother continued not just when they were alone but when they were in front of her friends and family. The father’s abuse and denigration of the mother included denigration of the mother’s culture.
In about 2013, the mother had become extremely embarrassed by the father’s behaviour and his alcohol consumption. The mother tried to hide these things from her friends and family. The mother did not want the marriage to fail. The mother spoke to the father about these issues and told the father that she was struggling to cope with how he was acting and the father responded, “It’s a part of who I fucken am, I thought you loved me for me”.
After a family event in 2013 (when the father had drunk a significant amount of alcohol and behaved in a loud and rude manner) the mother informed the father that it was time to leave the event and the mother intended on driving home – but the father insisted on driving – even though he was intoxicated. The father said to the mother, “I’m a better fucking driver than you even when I am drunk” and “I’m the designated driver”. The father insisted on driving and the mother did not want the father to leave the premises in the car with the children, so the mother got in the passenger seat. On the way home, the father swore at the mother said, “I was having a good time, and you fucking wrecked it”. The mother tried not to provoke the father and when they got home, the mother took the children out of the car and into the house.
In or about April 2013, the father went out drinking with his friends. The mother told him before he left that he should not be driving if he was going to drink. At approximately 2.00am, the father telephoned the mother and he was slurring his speech. The mother perceived that the father was intoxicated. The father insisted that the mother put the children in the car and come and collect him. He had driven the motor vehicle into a pole. When the mother had initially said that the children were in bed and she was not going to leave them at the house the father said, “just leave them at home” and then the father said “just put them in the fucking car and come and get me”. The mother felt that she had no choice but to pick the father up.
About six months later, the father was fired from his job – due to his inappropriate behaviour towards clients. Some years later the mother was contacted by some of these clients and they sent her a screenshot of inappropriate messages that the father had sent.
After the father’s employment was terminated, he decided that he wanted to open a business and he found an abandoned building in Suburb E that he wanted to use and he wanted the family to live in the building. The mother was extremely concerned about this. The father told the mother that she was “ruining his dream” and he called the mother a “disobedient wife” who was “stupid and had no brains”.
In late 2013 or early 2014, the father found another abandoned house in Suburb E. He said that it could be rented for free and the father told the mother that they were moving into the house. The mother tried to resist saying that she did not want to leave her parents’ house, but the father told the mother that she had “no say” and he told the mother “you will do what you are told”. When the family arrived, the mother could see that the house was disgusting and dirty and there was asbestos on the walls. The mother later found out that the family were illegally squatting in the house and that in fact the father had not obtained the consent of the owner for the family to move in.
The mother felt extremely unsafe living in the house. The father allowed strangers to stay – including drug users and people with mental health disorders. The mother became ill while living in the house with a strange throat infection causing bleeding from her throat. While living at the house the father continued to drink most nights and he continued to be extremely aggressive and verbally abusive towards the mother. The mother was very scared that the children would be hurt by the father or hurt by the people whom the father invited to stay at the house. The mother therefore slept on the floor of the children’s bedroom with them.
After living in that house for about 3 months, the mother spoke to some friends at her church. They agreed to go with her to the house and supported her in speaking to the father. When those friends came to the house they told the father that he was not doing the right thing by making the children and the mother stay at the house. While the friends were speaking to the father – the father said that the children and the mother could leave so the mother packed her things and that evening the mother and the children returned to live with the maternal grandparents.
After about a further month, the father was asked to leave the abandoned house and he telephoned the mother and the mother reluctantly agreed to allow the father to return to live with her at her parents’ residence.
At about this time the father and the mother were asked to leave their church as there were issues relating to the father’s behaviour towards other members of the pastoral team.
After that event, the father apologised for what had happened and he found a private rental for the family to live in which was owned by a different church organisation. After a period of time, the pastor of the church took the mother aside and raised concerns about the father’s behaviour and offered for the mother to stay at the house once the father left – but the mother felt trapped and did not think that she could leave the father.
The mother was extremely fearful of leaving the children alone with the father. He was drinking every night that he was at home and his behaviour was very unpredictable. The father regularly screamed at the mother and the children. The mother tried to keep the children quiet when the father was at home during the day because if they made any noise he would scream at the children and say, “shut up” and then he would scream at the mother and say such things as, “take the fucking kids to the park”.
For Y’s birthday in 2014, the mother planned a party at the house they were living in. The father’s brother came around before the party and he and the father were sitting in the backyard drinking beer. The mother set the party up. The family arrived. X was playing in the backyard near the father. X began to cry and the mother went to check on him. The father started to yell at the mother in the following manner – “can you fucking look after this kid”. The father then called the mother a “fucking bitch” and said to the mother “you fucking bitch you are brainwashed you have to think for yourself just do what I told you to do.” The mother tried not to provoke the father and the father’s brother told the father to settle down. The mother was extremely embarrassed by the way that the father acted in front of her family.
After the family left the private rental, they returned to live with the maternal grandparents. The mother and the maternal grandparents tried to speak to the father about his alcohol use and the impact it was having on the mother and the children. At this time, the father agreed with the maternal grandparents and said, “yeah I know”. Subsequently, when the parents were alone, the father got angry at the mother and said to the mother, “why are you sharing our problems with them… this is why we need to live our own life”.
Even when living at the maternal grandparents’ house, the father continued to drink on most days. He continued to be very demanding and spoke negatively towards the mother and would, for instance, yell to the mother “when are you making me my lunch?”. The maternal grandparents were not happy with the way that the father spoke to the mother and the children and the maternal grandparents told the father that he needed to stop.
In mid-2014, the father decided that the child X should start school midway through the year. The mother did not agree with this but the father insisted, “he’ll be right it’s only prep… I have experience in [education] I know what I'm talking about”. X commenced prep mid-year at the F School in 2014. The child struggled with his schooling at this stage and the mother would tutor him each afternoon.
In late 2014, the father obtained a job at Venue G. Working at Venue G meant that the father often drank at work and returned home intoxicated. The father would come home and sit in the lounge chair and ask the child X to bring him beer so that he didn't have to leave the chair. In about November 2014, the father installed a minibar next to his lounge chair so that he did not have to get out of the chair to get a drink.
The mother argued with the father almost every day about how much alcohol he was drinking. The father complained that the mother was not giving him enough attention and that she was not meeting his sexual needs.
At this time in November 2014, the father became extremely angry and swore at the mother and said, “Go back to where you came from… go back to [Country Z]…go be a little girl in your family.” The father then swore at the mother and said, “I am fucking leaving; I don’t know when I will be back don’t fucking call me”. The father left the house and did not come back until the next day.
At around this time the mother became very concerned about X. He was still wetting the bed. There were a few incidents where X copied the way that the father spoke to the mother and the father encouraged this. For instance, in or about late 2014/early 2015, X started saying to the mother, “cook me some eggs woman!” and “hurry up I'm hungry”. Furthermore, there were a few times when the mother asked X to do something for her and he said, “nah I'm not doing that”. This was the type of thing the father would normally say to the mother if she asked him to do anything. If the father was present when X said these things, the father would laugh and say that it was funny. In early 2015, the father’s behaviour at home became very difficult for the mother to manage. The mother would often find the father watching pornography or other inappropriate movies while the children were in the room. The mother was also not happy that the father would walk around the house naked despite her asking him not to do so.
In 2015, the family went to the mother’s cousin’s wedding. The father drank a significant amount of alcohol and was very intoxicated. The father was stealing other peoples’ drinks and was very rude and stumbled around the reception. The maternal grandfather told the mother that she needed to take the father home. The mother walked outside the wedding and saw that her cousins were holding the father and were trying to talk to him. The father was swearing and saying, “I am not doing anything wrong”. The mother quickly put the children in the car and told the father that the children were tired and needed to go home. The maternal grandfather and the mother’s cousins helped her put the father in the car as he refused to leave. The father fell asleep on the drive home. When the family got home, the father went straight into bed. The next day, the mother asked the father what had happened and he said, “your little brother is a fucking tosser”. The mother asked the maternal grandfather what had happened and he said that the father had started to swear at the maternal uncle and said, “you wanna fight, you wanna fight”.
The father did not like the mother or her family speaking their first language and at home, the mother was not allowed to speak this to the children when the father was there. The father would become very angry and would yell at the mother and said, “you came to live in an English-speaking country, you should only be speaking English. The kids don't need this rubbish language”.
On a subsequent occasion in early 2015, the family arrived home from celebrating a birthday at the maternal grandparents’ house. The father was intoxicated and acted inappropriately. The mother told the father, “you shouldn't have drunk so much”. The father started to yell at the mother and said to the mother, "your family is a fucking joke… I'm not going to allow them to speak [their first language] to my children… they don't need this bullshit language… they are Australian… they only need to speak English”.
The mother continued to feel embarrassed about the father’s behaviour at her family’s events – so the mother tried to attend less family events. The mother was struggling to cope with the father’s behaviour so she encouraged the father to speak to a psychiatrist as she was very concerned about the father’s mental health.

In March 2015, the father attended an appointment with Dr H. The father was diagnosed with depression and anxiety and was prescribed Lexapro and Xanax.
In mid-2015, the father insisted that the family buy a caravan. When the mother said that she did not want to live in a caravan the father said, “what do you think you're a fucking princess don't worry I’ll tidy it up and you can paint it”. The paternal grandmother lived in City J. The mother had to obtain a loan and the family purchased a utility and drove to City J and stayed with the paternal grandmother for about two months. The paternal grandmother did not like the father drinking and she and the father often had disagreements about the father’s drinking and the way that he spoke to the mother. Normally the father left the house and went to a nearby hotel to drink. The children and the mother stayed at home with the paternal grandmother. The paternal grandmother said to the mother, “there is no love in your house…how do you put up with him?”. The paternal grandmother also said to the mother, “You deserve better. He’s my son but I don’t like the way he treats you”. After the family had stayed with the paternal grandmother, they travelled back to Region K. The family’s home in Suburb E was being rented out so the family returned to live with the maternal grandparents. On the trip home, the father continued to drink alcohol. I infer that this means while they were travelling in the motor vehicle.
In late 2015, the father participated in a boxing competition. After this time, the mother became even more scared of the father because the mother could see how aggressive and violent the father was when he was fighting.
In late 2015, the mother told the father that she was tired of his behaviour towards her and she was tired of his drinking. The family were continuing to struggle financially. The mother complained to the father about the amount of money the father was spending on alcohol and pointed out that this meant that the family were living week to week and that the family were not able to save any money.
In late 2015, the father told the mother that they needed to “separate on paper for Centrelink". The father forced the mother to sign a statutory declaration saying that X lived with the father. The father told the mother that this would mean that he could receive a higher amount of Centrelink benefits. The mother said that she did not want to do this. The father insisted saying, “I promise it will be temporary… this will mean you can buy food for the kids”. The father yelled at the mother and said “just do what I tell you to do”. The mother did not feel that she had any choice but to do what the father told her to do. The mother has subsequently written to Centrelink with the help of a social worker to explain what happened and Centrelink told the mother that they would not be taking any action against her in relation to that situation.
In November 2015, the father was charged with sexually assaulting a woman. The offence was alleged to have occurred in September 2015. The father referred to the complainant as “a crazy bitch”. He denied any wrongdoing. The father said that at this stage he did not wish to stay in Region K and that he needed a break and wanted to see his real family in Sydney. The father told the mother that he wanted to travel to Sydney on his own.
The mother continued to raise her concerns with the father about the criminal charges and the alcohol consumption and the father would blame the mother and say that it was the mother’s fault that he needed to drink. The father said to the mother, “if I want to fucking drink then I will and if you can’t look after your man then I will drink so I can sleep”. The father also said to the mother that she was responsible for him “losing his dream”.
When the father was away (presumably on the trip to Sydney referred to), the father posted photographs of himself drinking and with empty alcohol bottles.
In late January 2016 – when the father had returned from his trip to Sydney – he moved back into the maternal grandparents’ house with the mother and the children. At that time, the father told the mother that they needed to move to live in L Town. The mother disagreed with the father and the mother told the father she did not want to move away from her family. The father became immediately angry with the mother and threatened the mother and said, “well we are going to fucking leave…I hate [Region K]…you need to let go of your family so we can live our own lives”. The mother told the father, “there is nothing in [L Town] for us what is the reason you want to go there? [L Town] is the place you go to for a holiday and I don't want to go I am not coming and the kids don't want to go”. At this time X was outside playing and the father ran over and grabbed the child by the arm and started dragging the child away from the house and yelled at the mother “if you don't want to go that's fine, but I am taking [X], he’s in my name anyway”. The child was crying and called to his mother “Mummy” and the child also said (to the father), “let go…I don’t want to go Mummy”. The father picked the child up and started walking away. The mother followed and said, “there is no way that I'm letting you take [X]”. The mother told the child that everything was alright and that she would come too. The father said that time, “No you're not. You didn't want to come in the first place, so you can't come now”. The child was crying and the mother started to beg the father and said “Please, I will come, I will do whatever you want… we can work it out”. The father stopped and put the child down. The child ran to the mother. The father said, “Get your stuff we are leaving”. The mother was afraid that if she did not do what the father wanted that he would take the children forcibly. So the mother grabbed the children’s belongings and the family quickly left the maternal grandparents’ residence.
On the way to L Town, the mother was anxious and afraid. She did her best not to provoke the father. The mother did her best to keep the children calm. The father told the mother that he had arranged accommodation for the family at L Town. When they arrived, the mother found out that the house that the father had arranged for the family to live in was in fact a shed on a stranger’s property. The shed was dirty and did not have any running hot water. There was no kitchen and there was no bathroom. That meant the children had to have a shower at the stranger’s house and it meant that the mother could only microwave food. The shed did not have any furniture. The family slept on blow-up mattresses on the ground. The mother was extremely stressed and started looking for rental properties every day. The mother found a unit near the new school that X was attending in Suburb M. The family moved into the unit in approximately late February 2016.
From the time the family arrived at L Town the father had problems with the police because of his alcohol consumption. The father was banned from several bars. In February 2016, the father was arrested and charged for refusing to leave a licensed venue; possession of a knife and possession of restricted drugs. The father carried a knife with him wherever he went. When the father was arrested, the mother did not know where he was. She received a telephone call from a police officer advising her that the father was in the watch house. The father was released and arrived home the next day. The father was issued with a three month banning notice by the police in respect of the L Town Safe Night Precinct. The father wrote a letter to the police requesting that the ban be reduced. The letter is annexed as “W4” to the mother’s trial affidavit. The father’s letter is evidence of his own lack of insight.
Between February 2016 and June 2016 the father was required to return to Region K for court matters – two to three times per month. The father would not allow the mother or the children to travel with him and he would stay away from somewhere between a few days or a few weeks at a time. The mother was alone with the children in L Town during this time. While the father was away the parents rarely communicated.
The father regularly stole things – regardless of whether the children and the mother were present. In about March 2016, the mother noticed that there were issues with the child X stealing things.
The mother did her best to keep the father happy because the mother wanted to travel to Region K for Y’s birthday in 2016. The mother was able to do this – travelling on the train from N Town to Region K with the children. The mother stayed at Region K for the whole of the March/April school holiday period. The father stayed in L Town during this time.
The unit in L Town[2] where the family were living was across the road from a hotel and the father would drink most nights at the hotel and arrive home after 11.00pm – intoxicated. The mother did her best to avoid the father. The mother often slept in the children’s bedroom with them so that the family did not have to deal with the father.
[2] I note that the family actually lived in Suburb M – adjacent to L Town.
The mother continued to struggle with the father’s behaviour. She attended a GP in March 2016. The mother said to the father at this stage, “the way you are isn’t good for the kids”. The father agreed and in April 2016 the father went to a GP and got a referral for counselling.
For most of the time that the family lived in L Town the children and the mother were able to go through their homework each day and the mother would cook the children dinner and put them to bed before the father came home from the hotel across the road. On other occasions when the father was at home when the mother arrived with the children (from school) the father would just stay in the lounge room and drink alcohol until he fell asleep.
In mid 2016, the father posted a copy of a video of the father physically assaulting a security guard.
In June 2016, the father was sentenced for various offences that had occurred in February 2016 and part of the sentence included 50 hours of community service. To the best of the mother’s knowledge, the sexual assault charge was still outstanding against the father but was later discontinued.
After the father was sentenced in June 2016, the father was then required to travel to Suburb O for parole three times. On each occasion, the father was gone for approximately a week.
I accept all of this evidence from the mother. The mother is a very credible witness. The mother has given a reliable account of her life with the father.
Incident In June 2016 at L Town
In her trial affidavit, the mother has described the events in June 2016.
To the extent that the father denies the evidence – I reject his denials. I note and accept the following evidence from the mother contained in her trial affidavit:
“213.On [...] June 2016, I came home from picking the kids up from school. I walked in and saw [Mr Haak] sitting on the lounge chair drinking beer, and as I walked past, I could smell that he smelt strongly of beer. I felt immediately deflated. At the time, [Mr Haak] and I did not have a lot of money, and we were struggling to buy food. I went to the fridge and saw that there was a full carton of beer in the fridge.
214.I didn’t say anything to [Mr Haak], because I did not want to provoke him, and I got the children settled in their room to play and went into the kitchen to make dinner. While I was the kitchen, I heard [Mr Haak] yell out words to the effect of: “we need to talk, we need to talk right now because I am sick of this shit”. [Mr Haak] was slurring his words and he smelt strongly of beer.
215.I told [Mr Haak] that we could talk tomorrow when he hadn’t been drinking. [Mr Haak] yelled: "if we don’t fucking talk right now! I will smash everything in the house! I’m sick of your fucking shit”. I told [Mr Haak] that I didn’t want to talk right now. There was a moment of silence, and I heard [Mr Haak] get up and walk into the kitchen and without warning he punched the Microwave. I remember being shocked by the sudden noise and when I turned around, there was glass and blood on the floor and [Mr Haak]’s hand was bleeding.
216.[Mr Haak] walked over and stood over me and yelled: “we are going to fucking talk right now”. I could hear the children crying and saying: “mummy”, “mummy are you ok?”. I went to walk over to the children, and [Mr Haak] walked over and slammed their door shut and said: “they’ll be right, they’ll cry themselves to sleep”.
217.[Mr Haak] walked back into the kitchen and continued to stand over me and tried and talk to me about our relationship and “our problems”. I remember feeling like I was in shock, and I didn’t answer him right away. [Mr Haak] responded with words to the effect of: “if we don’t talk, I will smash everything in the house”. I responded: “ok, ok we can talk”.
218.[Mr Haak] was swearing, but I cannot recall exactly what he was saying, and he walked back into the lounge room and picked up the television and smashed it onto the ground. [Mr Haak] picked the television back up and started punching it repeatedly saying “this is all your fault. You screwed up my life”. [Mr Haak] was yelling and dropped the television. I remember trying to stay calm and said: “we can talk tomorrow when you are sober”. [Mr Haak] picked up a beer bottle and threw it at me. I was shocked but I moved my head out of instinct and the bottle narrowly missed me and smashed on the ground. If I hadn’t moved my head, it would have hit me in the face. I was really scared, so I quickly went back into the kitchen to call the Police.
219.As I picked up my phone, [Mr Haak] came up behind me and stood over me. [Mr Haak] quickly turned me around and pushed back towards the wall and into the window with his hands on my shoulders. I couldn’t move, as [Mr Haak] was holding me hard against the wall. While he was holding me, [Mr Haak] laughed in a strange way, and then screamed at me to give him my phone. [Mr Haak] took the phone out of my hands and threw it at the ground smashing it. At that point, I felt totally helpless.
220.For the next few hours, [Mr Haak] continued to drink alcohol and yell and scream at me. [Mr Haak] ordered me to “sit your arse down”, which I did on one of the kitchen chairs, while [Mr Haak] stood over me yelling and berating me. I tried to check on the children, who were crying, but [Mr Haak] said: “sit down, they will cry themselves to sleep”.
221.I was extremely scared, so I sat there trying not to move or provoke [Mr Haak] in any way while he screamed at me. [Mr Haak] sat there mumbling and said things like “isn’t that right you fucking bitch”, I tried to stay really still and if he wanted a response I said “yes”. At one point I remember [Mr Haak] looking at me strangely and saying: “what do you want people to remember you by when you’re in your grave?” and “What do you want me to tell them? You and your fucked-up family, I hope you know I’m capable of killing your family”.
222.I knew that he would pass out eventually, but I was terrified that he might try and hurt me if I did or said anything that made him angry.
223.At around 5.00am, [Mr Haak] finally passed out on the kitchen chair, before falling off and onto the ground. I snuck past [Mr Haak] and grabbed the other phone we had in the house. I tried to be quiet as I packed things to take with me.
224..[Mr Haak] only woke up once, around an hour later, when he walked into the bathroom and urinated all over the floor, before he returned to the lounge room and fell back asleep. I hid in the children’s room, so that he did not see me. The house had blood from [Mr Haak]’s hand, across the floor and on the furniture, and there was smashed glass in the kitchen and lounge room.
225.When the sun finally came up, I quietly woke up the children and snuck past [Mr Haak] with them. I didn’t want them to see the broken glass and the blood, so I tried to distract them, but [X] saw the damage in the kitchen. I was carrying [Y] so tried to turn her away, and I told [X] “shhh lets go quietly, we are going to go out to breakfast and do something fun".
226.I took the children to the public bathroom in a nearby shop to change them into normal clothes and brush their teeth. I tried to make it like we were playing a game, [Y] played along but [X] asked me: “what are we doing Mum”.”
This event must have been terrifying for the mother and the children. During the course of the trial, the mother was cross-examined by the father’s counsel – no doubt on instructions from the father. The counsel for the father put to the mother that the father had not punched the microwave (Transcript 6 June 2022, p.64 line 15):
“Mr Seewald: I suggest to you [Mr Haak] never punched the microwave?
[Ms Haak]: Yes he did.”
When the father eventually gave evidence, he admitted that he did punch the microwave. This confirms again for the Court the unreliability of the father. The father’s testimony was generally unreliable and the conclusion that I have reached is that the father is, generally speaking, an unreliable person.
On 16 June 2016, the father telephoned the mother. The mother told the father that she was leaving. The mother told the father that she could not handle his behaviour any more. The father cried on the telephone and begged the mother to come home with the children and said to the mother:
(a)“Please forgive me”;
(b)“I fucked up I went too far this time”;
(c)“You know I’d never hurt you…I don't know what came over me”;
(d)“Please help me, take me to the doctor my hands are really bad”.
Through this process of manipulation the father made the mother feel guilty. The mother felt that she had to help the father. So the mother agreed to meet the father at the doctor’s surgery.
The mother went to the doctor’s surgery with the father. The doctor bandaged the father’s hand. After the doctor’s appointment the father agreed with the mother that he would attend marriage counselling with her – if only the mother would come back home. The mother agreed to return home with the children. Subsequently, the mother regretted this decision. Over the course of the ensuing weeks the mother was anxious, nervous and “extremely on edge”. The mother wanted to return to her own family in Region K. She wanted to make sure that the children would be safe. But at this point in time, the mother was afraid of the father and did not want to do anything that would provoke the father.
The parents attended three counselling sessions together. These appear to have taken place in L Town. The father agreed that the mother and the children could travel back to Region K to spend time with the maternal family. The mother was very relieved. The mother felt totally isolated in L Town and the mother was struggling to deal with the father’s behaviour. The mother and the children travelled back to Region K by train in late June 2016. Whilst at Region K the mother told the father that she did not want to return to L Town and that she wanted to stay with the maternal family on Region K. In early July 2016, the father replied by email stating:
“This is not ok! You do this to me and I'm alone with nothing to live for. Unless you come back to sort this out in person I feel things are going to get very bad between us and thats not good for the kids to go through. Remember our marriage vows! For better for worse in good times and bad, come back so we can sort this out.”
In return – the father promised the mother that he would change and that he would stop drinking if she returned to L Town. The mother wanted to believe that the father could change for the sake of the children – so the mother agreed to return to L Town.
In early July 2016, the mother returned to L Town with the children on the train from Region K. The father agreed to meet the family at the train station and pick them up. When the mother and the children arrived at the N Town train station it was 5:52am and the father was not there. The mother telephoned the father on several occasions and he did not answer his telephone. The mother was trying to organise a way for her and the children to travel to the unit that the family were renting. When the mother and the children finally arrived home – the father was intoxicated and said that he had been drinking all night. There were a couple of days after the family returned to L Town that the father did not drink alcohol. The parents went to another marriage counselling session together. At the end of that session, the counsellor pulled the mother aside and told the mother that the father’s behaviour towards the mother was domestic violence. The counsellor was very concerned for the mother’s safety.

In spite of the marriage counselling – the father continued to be extremely aggressive towards the mother. In mid-July 2016, upon returning from a shopping trip the father became extremely angry and pushed the mother hard in the shoulder with one hand so that the mother fell backwards and the mother hit her back against the wall. The children were watching this incident. The mother did not want the children to be exposed to any further violence. So the mother did not say anything but went upstairs and into the house. Before going upstairs the father had stood over the top of the mother. He was holding a credit card in one hand and he hit the mother across the face with the credit card. He said to the mother:
“Listen to me, we are going to fucking get through this. We will do the counselling and you will be an obedient wife, and do as I say, and we're going to live our lives the way that I want.”
The mother reached out to family members and friends for support. Her family and her friends encouraged the mother to leave the father. In mid-July 2016, the mother went to the N Town police station with a friend from work and reported the father’s behaviour towards her. At that point in time, the mother did not want for the father to be charged with anything and just wanted support in leaving him. The police referred the mother to a domestic violence organisation. The mother contacted that organisation. In late July 2016, the father was required to travel to Suburb O because of a parole condition. The domestic violence service formulated a safety plan for the children and the mother to leave safely while the father was away. In late July 2016, the maternal family paid for airline tickets for the mother and the children to fly back to Region K and the mother and the children were placed in a domestic violence refuge. The children did not spend any time with the father between late July 2016 and March 2017 – when Court orders were made for the children to spend supervised time with the father.
In late July 2016, the mother made an application for a Protection Order in the Magistrates Court of Queensland. A Temporary Protection Order was made naming the mother as the aggrieved and the father as the respondent. The order included additional conditions prohibiting the father from contacting the mother or attempting to locate the mother. The children, the maternal grandparents and one of the maternal uncles were also named in the order.
A couple of days later, the mother maintains that the father went to the maternal grandparents’ house at night in a motor vehicle and rammed the maternal grandfather’s car and rammed the maternal uncle’s car, causing significant damage. It was said that a neighbour witnessed the father getting out of his car. That witness initially gave a statement to police, but later refused to give evidence. I make no findings in relation to that particular incident. I am not required to do so.
Also, in late July 2016, the father posted several abusive and threatening comments on the maternal uncle’s Facebook page. At this time the mother was too scared to live with the maternal grandparents, because the father knew where they lived and the mother was concerned about placing the children at a risk of harm. So the mother found another house at which she and the children could live.
In September 2016, a Final Protection Order was made in the Magistrates Court of Queensland. The mother was named as the aggrieved and the father was named as the respondent.
Further, I note and accept the following evidence from the mother (see paragraphs 244 – 252 of the mother’s affidavit):
(a)In October 2016, the father broke into the maternal grandparents’ house and went inside and fell asleep on a lounge chair. The police arrived and found the father intoxicated and arrested the father and the father was charged with a breach of the Protection Order;
(b)After that incident, the maternal grandparents installed a security video system and in late 2016 the father again attended at the maternal grandparents’ house without their consent. The father was in the backyard late at night drinking alcohol. The mother has seen this film footage.
(c)Around this time the father made several Facebook posts directed to the mother. He was derogatory towards the mother and at about this time posted the following words about the mother – calling the mother a, “selfish, small-minded bitch” and in December 2016 the father posted on Facebook in Country Z words which translate to – “slut, slut, slut, show me my kids”.
(d)Further, in December 2016, the mother facilitated video calls between the father and the children;
(e)In late December 2016, the father made threats on the telephone about knowing the “mafia” and “bikies”. Around this time the father made other threats to the mother as outlined in the mother’s trial affidavit, including at annexure “W9”.
In February 2017, the father sent a text message to the mother stating that:-
“Yep I turned to alcohol because you were a shit wife and when you took my kids you took my life! You don’t know shit about me or what I’ve been through, you know what your family and some people tell you don’t make it truth. I could come to your door and see my kids right now but like I said I’ll see you in court.. .you always were small minded! You are fucking up our children without even realising it. Children need there Dad!”
On 3 February 2017, the father filed proceedings in the Federal Circuit Court of Australia. Orders for supervised time between the children and the father were made on 30 March 2017. There was also a condition that the father was not to be under the influence of alcohol.
In June 2017, the mother and the children were living at the maternal grandparents’ residence. At around 11.00pm, the father attended at the residence with a crowbar. The mother was woken up by the father banging on the front door and the father was screaming – “I want to see my fucking kids…come out…you stole my kids”. The mother could hear that the father’s speech was slurred and (I infer) from previous experience with the father, the mother could tell that he was intoxicated. The two children, X and Y were also woken up during this incident and they went in to the mother’s room crying. The mother telephoned the police. The mother asked the father to leave the premises several times – but the father replied “fucking shut up…I just want to talk”.
The maternal grandfather tried to calm the father down. The father then said, “Okay I am calm, can we talk now?” The maternal grandfather then opened the door of the house. The mother could see that the father had a crowbar in his hands and the father tried to force his way into the house. The father yelled “I am going to take my fucking kids”. The maternal grandfather replied – “Is this how you come to talk, with a crowbar?”
The father continued to yell and swear. The mother told the father to leave but the father kept trying to push through the door. The maternal uncle was awoken and came to help the maternal grandfather to stop the father from pushing inside the house. The police arrived a short time later and the father was arrested.
The father attended on four additional occasions late at night on the maternal grandparents’ residence. The father would attend at the mother’s bedroom window and begged her to give him another chance. The mother asked him to leave but the father kept coming back. The father promised that he was not drinking anymore and that he had changed, that he was seeing a psychologist and that he now had a job. The mother was hopeful that the father had changed.
On 15 November 2017, orders were made by the Court for the children to spend daytime contact with the father – supervised by either the mother or the maternal grandmother. This did occur – at a park in Suburb P. The father was spending time with the children at this stage – supervised by the maternal grandparents. The time seemed to progress well. The parents were talking about the children. Things seemed to be civil between them. The father wanted the Protection Order removed so that the parents could “talk properly”. The mother agreed to change the Protection Order to allow the father to communicate directly with her.
On 8 December 2017, final parenting orders were made by his Honour Judge Baumann (as his Honour then was). The orders provided for the children to continue to live with the mother and spend time with the father each alternate weekend. There were also orders for equal shared parental responsibility. At the time of the making of those orders, the father’s circumstances appeared (to the mother) to have improved. So far as the mother understood the evidence before the Court at that time – the father was attending upon his psychologist for treatment for alcohol issues, depression and anxiety.
Following the making of final parenting orders on 8 December 2017, the father tried to get the mother to agree to reconcile. The mother thought (at the time) that the father was seeing his psychologist. The mother also thought that the father had stopped consuming alcohol. The mother thought that the father was working. The mother agreed to resume the relationship. Before doing so, she made the father promise her that he would not resume drinking alcohol. The father agreed. The father told the mother that he was taking prescription medication which stopped his craving for alcohol. In or about February or March 2018 – the children and the mother moved into the father's unit located at Suburb Q.
This only lasted for approximately three weeks. The father said that he needed to “have a drink”. The mother told him that she would not be staying if he consumed alcohol. This occurred several times over the next two weeks and on each occasion (when the father drank alcohol) the mother left with the children. When the mother left with the children, the father sent threatening text messages to her. These are contained at annexure W13 to the mother’s trial affidavit. In those messages the father was threatening the mother – I infer, in relation to the Centrelink situation referred to earlier. For instance, one of the text messages from the father to the mother states that “I knew you were playing me like you’ve played the government now its time for justice to come to you! If you want to talk come home, if not you’re fucked!”
Unfortunately, once the mother had moved back in with the father – he stopped seeing his psychologist Dr R.
At about this time, the mother told the father that they needed to talk. The mother said that she was not going to stay in the marriage if he continued to drink alcohol. At this time the father said to the mother “I can't live without alcohol. It is a part of who I am, and if you can’t’ accept me then that is it”.
The parents separated on a final basis in approximately February or March 2018. The mother and the children returned to live with the maternal grandparents.
Even though the final parenting orders provided for the father to spend each alternate weekend with the father – this did not occur. The parents talked about how the children might react to spending time with the father. The parents agreed that the mother would be present. The father spent a few hours with the children – along with the mother present – on one occasion.
In about April 2018, the father moved to L Town. The mother did not hear from the father for approximately seven months. The children did not spend any time with him or communicate with him during this time.
In September 2018, the father was travelling down from L Town and wanted to organise to spend time with the children. The father showed up at X’s soccer game in early September 2018. The father was intoxicated. The mother knows this because she has had a long experience with the father and his consumption of alcohol. The father smelt strongly of alcohol. The father was yelling and slurring his speech to the extent that other parents were making comments about the father. The father was yelling and making very negative comments to the child and about the child, X. The father was calling out such things as:-
(a)“Hurry up [X]”;
(b)“The ball isn’t going to run to you”;
(c)“You gotta get a bit aggressive in your game”; and
(d)If the child missed a kick – the father would yell out “Oh come on [X].”
The child was very upset. This is understandable.
The father wanted to take the children with him after the game had finished – but the mother told him that the children were a bit tired – and maybe next time. The mother tried to keep the father calm. The father seemed to accept this.
After the father’s attendance at the soccer game – he travelled from L Town to Brisbane around two or three times to spend time with the children. On each occasion it was only for a few hours during the day and the mother was present. It always occurred in a public place. The mother was concerned about the risk to the children – so she stayed with them.
In early September 2018, the father sent the following messages to the mother:-
(a)“Are you getting me beer for Father’s Day?”
(b)“I’ve spent over $100 today for my own Fathers Day! Whatever...”
(c)“We should catch up before I leave. We need to get along for the kids and I don’t care if I have you or not so that’s not a problem as you thought, I get looked after well. I just thought we could have some fun for old times sake. To me it seems like you need a good time!”
The following day the father sent another message:-
“Sorry about yesterday, I was out of line but you did have a bad attitude and that set me off. When I make conversation with you there’s no need for the attitude. I don’t know why it’s a big deal to talk about stuff. We were together 12 years, we can still talk as friends. I’ll let you know when I [arrive back in L Town] tomorrow."
In mid-September 2018, the father sent the following text message to the mother:-
“Hey, I want you guys up here these holidays, I’ll have accommodation sorted for you all just arrange transport up here and back. If should be cheap if you book it now, ever cheaper by train! No excuses, I’ve made every effort to see the kids. You need to make effort! I’m working legitimately unlike you and I’m giving you all a good opportunity!”
In response to the above message, the mother told the father she could not afford to travel with the children to L Town. The mother also told the father she was concerned about the father’s level of alcohol consumption. The father then responded:-
“I haven’t been drinking a lot lately, I was drinking when I rang you because this relationship I am in is up and down like a roller coaster, I prefer my ups and downs to be in the bedroom. When I’m down I like to talk to you and I think about coming back to [Region K] because I miss the kids. You could come up on your finances, we could make if work but if it’s too scary for you, that’s ok, you’re still learning how to be independent, I understand that. You know I would look after you’s though.”
In late 2018, the father travelled to Region K. He asked the mother if he could spend time with children. The father was staying in shared accommodation. The mother agreed. The mother took the children to the accommodation. When the mother arrived she could tell that the father had been drinking. The father smelt of alcohol. The father wanted the children to stay with him at the shared accommodation. The mother would not leave the children with the father. The mother stayed with the children at the father's accommodation. I infer this was only during the day.
Through early 2019, the father continued to send text messages to the mother. In early January 2019, the father sent the following message:-
“I’ve been in bed two days with withdrawal symptoms and depression and anxiety. I’m giving up drinking, I turn 40 this year, time to start a new page in life. I’m going to lose the house too, the bank is taking it. Too many bills I cant keep up.”
I note and accept the following evidence from the mother:-
(a)Between January 2019 and April 2019, the children spent time with the father around four times. There were several weekends that the father did not spend time with the children because he had been drinking or he said that he did not want to spend time with the children as he had no money or was “not coping”.
(b)There were a few occasions that the father called the mother before the visit, and sounded intoxicated on the phone. One occasion occurred in January 2019, the father called the mother and asked her what time he was picking up the kids that day. The mother could tell by the way that the father was speaking that he was intoxicated – as he was slurring his speech. The mother told the father that the kids had a big day, and that they had a big day tomorrow and asked if it was alright if he saw the children another time and the father said: “yeah alright, whatever”.
(c)The father continued to be very aggressive and controlling towards the mother, and he was very angry with the mother when she commenced a brief relationship with a man named Mr S. As and by way of an example in late January 2019, the children were meant to spend time with the father, but he told the mother that he couldn’t have the children as he didn’t have any money. That afternoon, at 4.35pm, the mother received an SMS text message from the father which said: “enjoy your night with [Mr S]. You took my kids away for a date with this guy when it was my weekend. I don’t think that was smart...”.
(d)The mother also received a call from Mr S letting her know that the father had called and messaged him several times. The mother did not give the father Mr S’s number, and the mother does not know how the father got this. The mother replied and told the father that she collected the children because he asked her to, and asked the father to stop calling Mr S and to leave him out of the conversation. The father repeatedly called the mother, and when she did not answer, the father replied:
“When I’m face to face with with him, would he prefer to be called [Mr S]? No we agreed they would be with me today, I had money for today and you changed plans 5 minutes beforehand like you always change plants. Your plans changed because of a change in plans with him so now it is affecting me and the children! Not on... this was my weekend with them, if you want to play games like you have done in the past that’s fine but you have now included [Mr S] if he presers as part of it. You know how I play ;)”
(e)The father continued to call the mother and send her SMS text messages throughout the night which included the following:
a. “I told you from the start to be honest with me...I knew you’d do this. On the other hand I have been honest with you until you told me you didn’t want to here it. You lied in court too, I want another agreement now. Do you want to sort it out between us or go back to court?”
b. “They all say they’re not scared, how’s he doing now he know I know who he is? My beautiful hones children, your lies and one two Christian hypocrites make for a perfect situation for me to set things right... Stop calling yourself a Christian, you bring shame to Christ!”
c “. . .and so does he!”
d. “Call everyone, if anyone gets in the way of me and my children they will be dealt with.”
e. “How do you think I got rid of the shit people in my house while I was still in [L Town]? I made a phone call to a friend. When I came back they were gone. Don’t underestimate me or my love for [X] and [Y]. You me nothing to me now you”
f. “you better answer your phone. Who’s looking after the kids? I got paid today and you fucked up my weekend with the kids so if you’re not looking after them since you took off to Brisbane, I want them in my care. You parents aren’t their carers, you and I are and you’ve left the kids when they should be with me. Look up shared parenting! That’s what we agreed on in court. If you can’t look after the kids they have to be with me. I told you if you want to date you will have to wait until the kids are of legal independent age. You wanted the kids and I agreed they needed you at this young age but if you can’t parent and are distracted by [Mr S] in Brisbane I will take over the full time parenting. Your choice. I’m happy to go back to court... ”

I accept this evidence from Dr AA.
Dr AA was specifically asked by Mr Seewald about the question as to whether or not supervised time could commence during the five year period when the father is (or will hopefully be) recovering after the complete cessation of alcohol consumption. I note the following (Transcript 9 June 2022, p.308 from line 21):-
“Mr Seewald: All right. Now, Doctor, you would accept, wouldn’t you, that that perhaps is evidence – no, I withdraw that. Doctor, is there any – did [Mr Haak] present – were any of the factors that you considered in compiling your report indicative that the risks that [Mr Haak] presents until he is treated in the manner which you propose – could they be monitored or mitigated if the father was to continue to resume spending supervised time with the children at a contact centre or something of that nature?
[Dr AA]:I believe that that sort of arrangement could be helpful to [Mr Haak] and to assist with what is recalled rapprochement or relationship redevelopment between this father and the children and could be a positive factor in his, what I call, life rehabilitation, given that, when I interviewed him, he told me that he had not had any contact with the children at all for some two years and did not know where they were living and that was causing him great distress.”
Dr AA's attention was then drawn to the evidence of Dr T – where Dr T recommends that two and a half years elapse from the cessation of alcohol before supervised time commences. Dr AA noted that he had received copies of the Report from Dr T and the Addendum Report. Dr AA then went on to state that (Transcript 9 June 2022, p.309 from line 33):-
“[Dr AA]:And I would, in reply to your question, highlight that [Dr T] refers to my report and uses my name in her addendum and there’s much synchronicity with respect to what the social scientist has documented, and I would say that I’m fully supportive of her expert opinion with respect to those matters.”
It is apparent therefore that Dr AA defers to the social scientist, Dr T in relation to the questions relating to the length of time that should elapse before supervised time with the father should commence.
Dr AA was very clear in his evidence that the father needs to abstain from alcohol for a period of five years before it could be said that he was rehabilitated. Indeed, Dr AA referred not only to a five year abstention from alcohol – but also a period of five years where the father behaved in a lawful manner at all times and “assiduously” adhered to a stable mental health plan. Dr AA referred to this as “basically a form of life rehabilitation”. The father needs to undertake reform. As noted earlier in these Reasons – Dr AA highlighted that the diagnostic issues to which he referred in his report raise “very serious risks for dysfunction for parenting”. Dr AA said that the most serious of the risks in relation to parenting was the return by the father to alcohol use – at all – ever again. Unfortunately, Mr Haak has not heeded this very clear message and advice.
As noted earlier, it is apparent from the cross examination of Dr T (by Mr Ashcroft, counsel on behalf of the Independent Children's Lawyer) that none of the CDT test requests were completed by the father in an appropriate way. Over a two-year period (up to 23 May 2022) the ICL requested 11 test be completed. It seems five tests were completed. There is no adequate explanation as to why the other test requests were not complied with. Each of the tests that were completed were completed late and, in any event, still showed the presence of alcohol in the father's system.
It is the case that some of the test results showed certain percentages of alcohol in the father’s system. As to his level of intoxication – that is another question. I do not need to make any particular findings about that. The point is that during the past two years – on the five occasions that the father did comply with requests for alcohol testing – on each occasion there was alcohol present. This all leads back to the need for the father to cease the consumption of alcohol completely – noting as I do the risk factors that have been identified when the father does consume alcohol.
The Court has provided a qualitative analysis of the evidence. The past events show that when the father consumes alcohol he acts in an unpredictable manner. Within the context of a contact centre the risk to the children is that the father is “going to say something or do something that can be interpreted negatively by his children…even in a contact centre, parents can use language that is inappropriate, or they can talk about topics or content that children find either difficult to hear or they can make reference to past…experiences without realising that those are not easy for children to listen to” (evidence of Dr T, p.289 of Transcript of 8 June 2022). If that occurs, Dr T’s opinion is that it will “likely cause new emotional wounds and there is a risk of an insurmountable break in the father-child relationship”.[7] Having regard to the father’s history of alcohol abuse, along with the history of past events[8] and noting the present circumstances (in particular the fact that the father continues to consume alcohol) and including the opinions of Dr T and Dr AA – leads the Court to conclude that there is, at the least, a very real possibility that the father will attend a supervised visit at a contact centre intoxicated, partly intoxicated, or recovering from intoxication – and that he would say something or do something that can be interpreted negatively by the children. There would be a similar risk (which I describe as, at the least, a very real possibility) that the father would display some psychological disturbance, or the effect of substance abuse or lack of respect. In the event that any of those postulated risks come to pass it is likely that the children will suffer harm. The type and the amount of harm that the children would be exposed to has been outlined by Dr T, where she said it will “likely cause new emotional wounds” and – one of the risks specifically highlighted by Dr T is the “insurmountable break in the father-child relationship”. This would be seriously detrimental to the children. The risk of harm to the children, even if the time was supervised at a contact centre, is a risk of emotional harm. The view that I have formed is that the risk of harm to the children is an unacceptable risk in the circumstances of this case. That is, at this point in time, noting that the father has not yet ceased the consumption of alcohol, the children remain at an unacceptable risk of emotional harm from the father even if they spend time with their father supervised at a contact centre. As Dr T said, the father needs to reach a “stage of recovery where he can consistently provide an emotionally safe environment for the children”.[9] Dr T also provided oral testimony in relation to these risks – including, in particular, at page 288 of the Transcript, 8 June 2022 from line 45. I accept her evidence.
[7] Paragraph 9.87 of the Family Report. (Emphasis added)
[8] Notably, the findings made in these Reasons for judgment concerning past events.
[9] Paragraph 9.86 of the Family Report.
Relying partly on Dr AA’s expertise, Dr T concludes that two and a half years’ abstinence from alcohol is likely to be the stage of recovery needed before the commencement of supervised time. To put it another way, it is at that point that the risk of emotional harm to the children would likely move from being unacceptable – to acceptable.
I have had due regard to the fact that the decision in Isles & Nelissen means that the Court does not need to be satisfied on the balance of probabilities that there is an unacceptable risk of harm to the children – in the future context of supervised visits. It is a conclusion of the Court based upon the past events, the present circumstances and the totality of the relevant evidence in this case.
I would point out that even in the absence of Isles & Nelissen – in the circumstances of this case – I would have concluded that these children are at an unacceptable risk of emotional harm from supervised contact with their father. I only add these comments for completeness – noting, as I do, that there is currently a special leave application before the High Court in relation to the Full Court decision in Isles & Nelissen.
It is the case that the father has been diagnosed with cancer. I have taken this fact into account in determining the best interests of these children. Obviously, the diagnosis of cancer is a great challenge for the father and he appears to be getting all the health advice and assistance that he needs. There is evidence from the father’s oncologist. There is, apparently, a good prognosis for the father. Obviously, it is difficult not to have some sympathy for the father in the particular circumstances in which he finds himself. However, I do note that the father has continued to consume alcohol even since the date when he received his diagnosis of cancer. The date of the diagnosis was February 2022. Notwithstanding the father’s current cancer diagnosis, the fact remains that in determining the broader issue relating to the best interests of these children – there still remains an unacceptable risk of emotional harm to these children in the event that supervised time at a contact centre commenced now. I would point out that Dr T was well aware of the father’s cancer diagnosis. I am satisfied that Dr T took it into account in providing her opinion.
Dr T thought it would not be harmful for the children if the father wrote letters in a respectful manner with positive messages and also it would not be harmful to the children if the father provided gifts for them which were respectful and age-appropriate. Dr T seemed to also agree that it would be a good idea if a family member vetted the letters and gifts. The mother was suggested – and this is appropriate, in my view.
Section 60CC: other additional Considerations
I have already made mention of the views expressed by the children (note s 60CC(3)(a)). I note paragraph 9.17 of the Report of Dr T.
It is apparent from these Reasons that the children enjoy a close and loving relationship with their mother and with the maternal family. They also appear to have a good relationship with the paternal grandmother and one of the paternal uncles. The children's relationship with the father has been significantly damaged by their exposure to his alcohol consumption, his antisocial behaviour and the family violence that he perpetrated – as outlined in these Reasons (note s 60CC(3)(b)).
The mother has obviously taken every opportunity to participate in the lives of these children. Because of his alcohol consumption the father has been, over an extended period of time, unreliable in relation to spending time with the children. There are many instances contained in the evidence and some are referred to in these Reasons. Because of the father's conduct – including his criminal conduct – he has not been permitted to communicate with the children for some three years. Nor has he been permitted to spend time with the children. He now would like to take those opportunities – but these matters have to be weighed in the balance, taking into account all the evidence, including the expert evidence (s 60CC(3)(c)).
The mother has consistently maintained the children. The father has not fulfilled his parental obligations in that regard (s 60CC(3)(ca)).
The current circumstances for these children are stable and safe. They live with their mother and either live with, or spend significant time with, other members of the maternal family. The reintroduction of time with the father is likely to lead to instability for these children and lead to risks of harm as referred to in these Reasons (s 60CC(3)(d)).
Section 60CC(3)(e) is not particularly relevant in the context of this case.
I have grave doubts that the father, at this point in time, has the capacity to provide for the needs of these children. The mother does have such capacity. My conclusion in this regard will be apparent from the Reasons for judgment. As to whether the father can build or rebuild a capacity for parenting remains to be seen (s 60CC(3)(f)).
I have taken the age of the children and the other matters referred to in s 60CC(3)(g) into account in coming to a conclusion in relation to the best interests of these children. The children are mature enough to make their wishes known and to have their wishes heard by the Court.
In relation to whether or not these children have any indigenous (Australian Aboriginal) heritage – the father maintains that he does have indigenous heritage. The mother’s evidence is that she spoke to the paternal grandfather (when he was alive) and the mother also gives evidence that she has spoken to the paternal grandmother. Both the paternal grandfather and the paternal grandmother denied Australian indigenous heritage. The paternal grandfather explained to the mother his racial heritage. The mother gave the following evidence (Transcript 6 June, p.41 from line 1):-
“Mr Seewald: How do you know [Mr Haak] is not indigenous?
[Ms Haak]:I was told by his family, other family members, that he is not indigenous.
Mr Seewald: All right. So you’ve, what – you’ve asked them directly, “Is [Mr Haak] indigenous?” and they’ve answered negative?
[Ms Haak]:It came up in conversation. Yes.
…
Mr Seewald: But [Mr Haak]’s father specifically?
[Ms Haak]:[Mr Haak]’s father told me that he was from the – his background was [from Region CC].”
I accept this evidence from the mother. The father's contention appears to be that his indigenous heritage is on his father’s side of the family. The paternal grandfather denied that this is the case. I accept the mother’s evidence concerning those conversations and this leads the Court to conclude that there is considerable doubt in relation to the father’s claims of indigenous heritage. The father is an unreliable witness. The father’s mere assertion of the fact is not sufficient in the particular circumstances of this case. Ordinarily, if it were proven on the balance of probabilities as a fact (in accordance with s 140 of the Evidence Act 1995 (Cth)) that a person does have indigenous heritage – then, obviously, in most circumstances, it would be in the children’s best interests for orders to be made that would permit the children to keep in touch with their indigenous culture. I accept the mother’s evidence that she will ensure that the children continue to have contact with the paternal grandmother. This has occurred in the past. The mother has shown great insight and has been child focused in ensuring that the children remain in touch with the paternal grandmother. The term, “Aboriginal child” is defined in s 4 of the Act to mean, “a child who is a descendant of the Aboriginal people of Australia”. The conclusion of the Court is that the father has not proved indigenous heritage to the requisite standard – namely, on the balance of probabilities (s 140 Evidence Act 1995 (Cth)). Therefore, the father has not been able to prove that the children are “Aboriginal children” within the meaning of that term as defined by the Act. Even if he had been able to prove Aboriginal heritage – given the risk issues identified in this case, there is no particular order that the Court would be prepared to make at this point in time – involving the father having any interaction with the children. I have had due regard to ss 60CC(3)(h) and 60CC(6)). Furthermore, the mother is so child focused that, in the event that it were subsequently shown to the mother that the children do in fact have Australian indigenous heritage – I am certain that the mother will take appropriate steps to ensure that the children have a chance to enjoy such heritage and culture.
I have already commented on the mother’s attitude to the children and the responsibilities of parenthood, demonstrated by each parent. My views concerning those matters will be very apparent from these Reasons for judgment. The father has, through his continued use of alcohol, his family violence and antisocial behaviour, to a large extent, abrogated the most important responsibilities of parenthood (note s 60CC(3)(i)).
As to family violence, I have already extensively considered that issue in these Reasons (note s 60CC(3)(j) & (k)).
As to s 60CC(3)(l) – the conclusion I have reached is that it will be preferable to make an order that there be no time or direct communication between the children and the father (apart from the provision of letters and gifts which will be outlined in the orders). I do not consider it appropriate to make an order that, after two and a half years, supervised time should commence. I accept and adopt the submissions made by Mr Taylor (counsel on behalf of the mother) and Mr Ashcroft (counsel on behalf of the ICL) that there should be no such order. If the father can, in the years ahead, abstain from alcohol and avoid criminal or other antisocial behaviour, then he will be able to file another application for parenting orders. It seems to me, noting the rule in Rice & Asplund – that if the father can adequately prove to a Court in the future that he has ceased the consumption of alcohol over a period of two and a half years and that his health and general emotional and mental state are stable etc. – that this would be a very good – perhaps even a strong argument, for a conclusion that there has been a significant change in circumstances. Obviously, my comments here cannot in any way be seen to bind any Court in the future that may be required to make a finding in relation to whether there should be a variation of the final parenting order in this case.
I find it convenient (by reference to s 60CC(3)(m)) to note that I am satisfied that emotional harm of the kind described by Dr T is a form of harm which is covered by s 60CC(2)(b) of the Act – most likely as a form of psychological harm – but it might also be caught by some of the other categories in s 60CC(2)(b). I do not consider it necessary to be more specific. It is sufficient to note that I am satisfied that the emotional harm described by Dr T is a form of harm from which the children ought to be protected – in their best interests. I would also note that the proposed final order along with these Reasons for judgment – adequately comply with the provisions of s 60CG of the Act.
The mother and the ICL also sought an order from the Court permitting the mother to relocate the residence of the children. Given that the mother will be granted sole parental responsibility – I have no hesitation in making such an order. As I understand the current evidence, the father does know where the children live presently. I consider that the making of such an order is in the best interests of the children – having regard to these Reasons for judgment.
Parental responsibility
The mother must have sole parental responsibility. The children will be living with the mother and will not be having any time or direct communication with the father. The presumption of equal shared parental responsibility (s 61DA) has been rebutted by the extensive evidence of family violence.
There is no need for the Court to consider s 65DAA – because the parents will not have equal shared parental responsibility. In any event, equal time or substantial and significant time would not be in the best interests of these children. That much must be apparent from these Reasons for judgment.
conclusion
At the conclusion of the hearing, the Court heard oral submissions on behalf of the parents and the ICL. As noted, the ICL and the mother agree on the wording of orders. I have indicated in this judgment that I also (generally) agree with the orders proposed. The Court has, however, altered some of the wording of the proposed orders – as the Court sees fit – in accordance with the best interests of these children. Those orders nonetheless reflect the Reasons for judgment.

I certify that the preceding two hundred and fifty-eight (258) numbered paragraphs are a true copy of the Reasons for judgment of the Honourable Justice Howard.
Associate:
Dated: 12 October 2022

File number(s):	BRC 1036 of 2017
Judgment of:	HOWARD J
Date of judgment:	12 October 2022
Catchwords:	FAMILY LAW – PARENTING – Where the father consumed excessive amounts of alcohol over a long period of time – Where the father perpetrated family violence – Where the mother and the children were exposed to the family violence perpetrated by the father – Where the father pleaded guilty to one count of strangulation of the mother – Where the father pleaded guilty to one count of contravention of a domestic violence order with a circumstance of aggravation – Where the father served a term of imprisonment in respect of those convictions – Consideration of risk issues – Consideration of the possible amelioration of risk issues – Best interests – Where the children expressed wishes not to spend time with the father – Where the father continues to consume alcohol – Where the father amended his case during the course of the trial and sought only supervised time with the children – Where the mother and the Independent Children’s Lawyer sought an order that there be no time between the children and the father – Where the overwhelming weight of the expert evidence leads the Court to conclude that there is an unacceptable risk of emotional harm to the children from the father even if time was supervised at a contact centre – Order that there be no time between the children and the father – Where the evidence reveals a pathway for the father to follow in the future – A consideration of whether the children are Aboriginal children.
Legislation:	Evidence Act1995 (Cth) s 128, 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 61DA, 65DAA Criminal Code Act 1899 (Qld) ss 315A, 564(3A) Domestic and Family Violence Protection Act2012 (Qld) s 177
Cases cited:	A v A (1998) FLC 92-800 Amador v Amador (2009) 43 Fam LR 268 Baghti & Baghti & Ors [2015] FamCAFC 71 Beckham v Desprez (2015) 55 Fam LR 310 Briginshaw v Briginshaw (1938) 60 CLR 336 CDJ vVAJ (1998) 197 CLR 172 Cox v Pedrana (2013) 48 Fam LR 651 Cubbin & Cutler [2018] FamCAFC 84 Eagle & Scarlett (No.2) [2020] FamCAFC 291 Harridge & Harridge [2010] FamCA 445 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles & Nelissen [2022] FedCFamC1A 97 Johanson & Johanson [2022] FedCFamC1A 74 M v M (1988) 166 CLR 69 N & S (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Rice & Asplund (1979) FLC 90-725 SPS v PLS (2008) FLC 93-363 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Place:	Brisbane
Date of hearing:	6, 7, 8 and 9 June 2022
Date of last submission/s:	9 June 2022
Number of paragraphs:	258
Counsel for the Applicant:	Mr Taylor
Solicitor for the Applicant:	Legal Aid Queensland
Counsel for the Respondent:	Mr Seewald
Solicitor for the Respondent:	Smithson Lawyers Gold Coast
Counsel for the Independent Children's Lawyer:	Mr Ashcroft
Solicitor for the Independent Children's Lawyer:	Dooley Solicitors

BRC 1036 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HAAK Applicant
AND:	MR HAAK Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HOWARD J
DATE OF ORDER:	12 October 2022