Hira & Dipak - [2024] FedCFamC2F 285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hira & Dipak [2024] FedCFamC2F 285

File number(s): PAC 179 of 2023

Judgment of: JUDGE HARLAND

Date of judgment: 5 March 2024

Catchwords: FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders

Legislation:
Australian Passports Act 2005 (Cth) ss 11

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 64 , 65D, 68P(3), 68Q, 69ZW

Family Law Amendment Act 2023 (Cth)

Cases cited:
Isles & Nelissen [2022] FedCFam1A 97

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Sokghi & Danwar [2022] FedCFamC2F 1654

Waterford & Waterford [2013] FamCA 33

W & G [2005] FamCA 617,

Division: Division 2 Family Law

Number of paragraphs: 200

Date of hearing: 24, 25, 29 and 30 January 2024

Place: Melbourne

Counsel for the Applicant: Ms Burgess

Solicitor for the Applicant: Taylor Rose

Counsel for the Respondent: Mr Myles

Solicitor for the Respondent: Victoria Legal Aid

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitor for the Independent Children’s Lawyer: CMB Legal
ORDERS

PAC 179 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HIRA
Applicant

AND:
MS DIPAK
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:
1.All previous parenting orders and interim watchlist order be discharged.
2.The mother have sole parental responsibility for the children X born in 2011 and Y born in 2016 (‘the children’).
3.The children live with the mother.
4.The children spend no time with the father.
5.Save in accordance with order 6 and 7 herein, the father is hereby restrained by injunction from communicating with the children.
6.The father be permitted to send a card to the children on two occasions each year namely, 7 days prior to the children’s respective birthdays and 7 days prior to Christmas Eve.
7.The father be permitted for the year 2024 only, to send a card to X for her birthday at the same time as sending a card for Y’s birthday.
8.For the purposes of facilitating orders 6 and 7 herein:
(a)The father will send the cards to the children at an address which shall be nominated by the mother (via her solicitor) to the father (via his solicitor) within 14 days from the dates of these orders;
(b)The mother be permitted to open and view the cards prior to providing them to the children and the mother must pass them on to the children unless they are inappropriate in accordance with order 8(c); and
(c)The provision of cards by the father to the children is permitted on the conditions that the father does not, through any card:
(i)denigrate, in any way, the mother, the children, or any person related to the children, including using abusive or belittling language;
(ii)seek to find out any location at which either child, together or separately, is going to be situated, including but not limited to the children’s residence, school/s, extra-curricular activities, or any childcare facility at which they attend;
(iii)mention, to either child, anything concerning any family law proceedings relating to the children or either child;
(iv)pressure either child to spend time or communicate with him; or
(v)pressure the mother, through either child or directly, to have either or both children spend time or communicate with him.

9.The mother forthwith do all things necessary to ensure the children engage with a family therapist/counsellor experienced in family law and family violence issues for the purposes of counselling to address the issues raised in the Child Impact Report dated 15 August 2023.
10.The mother be permitted to provide said family therapist/counsellor with a copy of the Child Impact Report dated 15 August 2023 and a copy of these reasons.
11.In the event the father engages in counselling to address the issues of risk, the father be permitted to provide said counsellor a copy of the Child Impact Report dated 15 August 2023 and a copy of these reasons.
12.The mother be permitted to provide a copy of these orders to the children’s schools.
13.Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the mother be permitted to obtain Australian Passports for the children or renew them as required without the consent of the father.
14.For a period of two years from the date of these orders, the father MR HIRA born in 1980 and the mother MS DIPAK born in 1983 and their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born in 2011 and Y born in 2016 from the Commonwealth of Australia.
15.It is requested that the Australian Federal Police give effect to this order by placing the name of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist for a period of two years from the date of these orders.
16.In 30 days, the Independent Childrens Lawyer is discharged.
17.All extant applications are dismissed.

AND THE COURT NOTES THAT:
A.Orders 6 to 8 above are inconsistent with orders 5 and 9 of the family violence order made in Court at City B in early 2023 which names the mother and children as protected persons in that they do not allow the father to see or communicate with the children unless via card.. The Court notes that order 4 prohibits the father from spending time with the children.
B.Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the family violence order is invalid.
C.In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
(a)Victoria Police;
(b)The Department of Families Fairness and Housing; and
(c)The Registrar of the Court at City B.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

X and Y are living with their mother and have not seen or had any communication with their father since the parties separated in late 2022 following an incident of family violence. The mother and children currently live in an undisclosed location in Victoria. The father lives in Sydney.
The father is aged 43 and the mother is aged 40. Both parties were born in Country C. The parties married in 2010 in Country C and separated in late 2022 following an incident of family violence allegedly perpetrated by the father against the mother in the presence of the children. X was born in 2011 and is aged 13 and Y was born in 2016 and is aged seven. In late 2022, Victoria Police took out an Interim Family Violence Intervention Order (‘FVIO’) against the father listing the mother and the children as protected persons. The father has consented to a final FVIO for one year which is due to expire in early 2024.
THE PARTIES’ POSITIONS
The father’s position has changed over the course of the proceedings. In his initiating application filed 16 January 2023, the father sought that the parties have equal shared parental responsibility for the children and that the children live with the parties in a week about arrangement. His orders were silent about where time would take place except for having a changeover at McDonalds in Suburb D in New South Wales. This was despite the children living with the mother in Victoria at the time. The father filed an amended initiating application on 23 February 2023 amending the interim orders sought. The final orders remained the same.
The father’s position changed in his further amended initiating application filed 5 December 2023 seeking that the mother have sole parental responsibility for the children on the condition that she must advise the father and take on board his view prior to making any long-term decisions for the children. However, the father contrarily says in his trial affidavit at paragraph 21, filed 27 December 2023, that he is seeking equal shared parental responsibility. He also sought in the further amended application that the children live with the mother and spend time with the father as agreed or in accordance with their wishes. He also sought regular video calls and the ability to send cards, letters and gifts to the children.
The father’s position changed again when he filed his minute of orders sought on 17 January 2024. At the commencement of the trial, the father’s Counsel confirmed that he was now seeking orders in accordance with this minute summarised as follows:
(a)The mother have sole parental responsibility;
(b)The children live with the mother;
(c)After a period of not seeing the children for three months, the father commence supervised time with the children once per month;
(d)Time be unsupervised after six months, conditional upon him completing a parenting after separation and men’s behavioural change course;
(e)The father be able to have video calls with the children; and
(f)The father be able to send gifts, cards, and letters to the children.
The mother’s position has been consistent throughout the proceeding. She seeks orders for sole parental responsibility and that the father spend no time with the children. The mother’s case is that the father is an unacceptable risk due to his perpetration of significant family violence and his lack of insight and failure to take responsibility for his behaviour.
At the commencement of the trial, the Independent Children’s Lawyer’s (‘ICL’) preliminary view was that there should be no time between the children and the father. At the end of the trial, the ICL’s Counsel confirmed that position and proposed that the father be permitted to send cards twice a year restricted to making birthday and Christmas salutations and that the mother arrange counselling for the children.
EVIDENCE RELIED ON
The father relied on the following documents:
(a)Further Amended Application filed 5 December 2023;
(b)Trial Affidavit of Mr Hira filed 27 December 2023;
(c)Affidavit of Mr E filed 23 December 2023. At the commencement of the final hearing, Counsel for the father indicated that the witness would not be required for cross-examination The affidavit was described as a character witness and is of no assistance in determining the issues before me; and
(d)Outline of Case filed 17 January 2024.
The mother relied on the following documents:
(a)Amended Response filed 1 August 2023;
(b)Trial Affidavit of Ms Dipak filed 28 December 2023; and
(c)Outline of Case filed 11 January 2024.
The ICL relied on their Outline of Case filed 18 January 2024. In addition to the documents listed above, all parties sought to rely on the Child Impact Report by Ms F dated 15 August 2023. Various documents were also tendered by the parties as exhibits including s69ZW material and subpoena material from Victoria Police.
The father’s trial affidavit unhelpfully includes several paragraphs replying to the mother’s earlier affidavit which is not in evidence before me. This is done all too commonly without consideration as to whether or not the affidavit the party is responding to will be in evidence at the final hearing. The father also repeatedly states unhelpfully that he denies the allegations of family violence the mother makes and requires her to “prove them”. It is not necessary for the mother to prove each allegation of violence in order for the Court to be satisfied that there is an unacceptable risk posed by the father due to family violence. Furthermore, affidavits should contain facts not argument.
For reasons I shall explain, I am satisfied that the father is an unacceptable risk to the children and that it would not be in the children’s best interests to make an order for spend time arrangements with the father even if that time was supervised based on the current state of the evidence.
ISSUES IN DISPUTE
The issues in dispute that I must determine are:
(a)The nature and extent of family violence experienced by the family;
(b)Whether or not the father is an unacceptable risk to the children due to family violence and his lack of insight and acknowledgment of the alleged family violence;
(c)Whether or not that risk can be ameliorated;
(d)Whether or not the mother should exercise sole parental responsibility with an obligation to consult with the father;
(e)Whether or not orders should be made for the father to spend time and communicate with the children;
(f)Whether or not the father should be permitted to send cards, letters and gifts and under what conditions;
(g)Whether or not an order should be made for family therapy; and
(h)Whether or not an airport watch list order and an order for passports should be made.
Before discussing the evidence and issues in dispute, I will discuss the applicable legal principles.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (‘the Family Law Act'). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518, and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
The Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. A risk assessment is a predictive exercise. The risk may be a possibility, probability, or a certainty. If the Court is satisfied that there is an unacceptable risk, then it must consider how that risk might be ameliorated.
IMPRESSIONS OF THE PARTIES
I am mindful of cultural issues in this matter. The parties are from Country C. Both parties were emotional at times during their evidence and at times seemed histrionic. I am of the view this was a product of cultural differences and being mindful of this I have not taken it into account when assessing their evidence. Both parties were cross-examined extensively about sensitive issues concerning family violence and their children's welfare. Being cross-examined is a stressful experience particularly when talking about such sensitive and personal matters. At times both parties had to be warned to focus on answering the questions that they were being asked rather than making speeches. Both parties were keen to ensure they told their story.
The father says in his trial affidavit that the mother does not have a good command of English and goes on to claim that he was responsible for making arrangements for the children’s schools and speaking to their teachers. Early in his cross-examination, he agreed that he wanted the mother to learn English and take on more responsibility but said it was not for his benefit but for the “betterment of the family”. During the trial the father referred to the mother obtaining qualifications in Country C and that the mother was lying about needing an interpreter. The studies the wife undertook was taught in English. The mother was cross-examined about this. She completed her studies in 2006 and 2007. She worked as a professional for a few months in Country C. The father’s position is inconsistent. It was apparent when the mother was in the witness box that for the most part, she was able to give evidence without the assistance of the interpreter but there were some questions she needed interpreted. This was particularly so after she was cross-examined for some time. It is not particularly unusual for a person for whom English is not their first language to be able to speak conversational English but need occasional assistance during the course of a Court hearing where the language can be technical as parties are required to concentrate extensively for long periods of time.
PERIODS OF SEPARATION

The parties married in Country C in 2010. The father says they lived together for two years in City G. The mother qualifies this stating her study was in a different city and that when living in Country C the father worked a few hours away and came home on weekends. In 2010, the mother returned to her parents’ home in anticipation of the birth of the parties’ first child, X in 2011. She says the father visited for a few days when X was born. She returned in 2011. The longest they travelled together was for two months when they first married. The mother says after that they were not consistently together, even for a six-month period. They were then separated for a significant period when he moved to Australia.
The father accepted a work assignment to the United States for six months in 2011. The father returned to Country C in late 2011 and after a few months the family moved to the United States as the father obtained a long-term assignment. They lived in various locations in the United States from early 2012 to late 2017. The mother says the father worked long hours when working in the United States.
The parties then returned to Country C for 11 months. The father then moved to Australia for another work assignment in late 2018. The mother and children remained in Country C until mid-2022. The father says that the mother and children were not able to join him because of delays in his employer sponsored permanent residency being approved. The mother disputes this. She says she had visas for herself and the children when the father moved to Australia, but the father kept delaying their arrival to Australia.
The father says that although they were living apart for almost four years, he returned to Country C four times during this time, staying for a month or two at a time. Significantly, unlike the other periods referred to in his trial affidavit, the father does not specify the periods he returned to Country C for visits. The mother says the father visited for a month in 2019, another month for a special occasion in 2019, and for about two months from late 2021 to early 2022. The father also claims he frequently spoke to the mother and the children and would have video calls with the children where they would watch movies together. Tendered and marked as Exhibit 4 is a screenshot of the family watching a film.
The family lived in Sydney for five months in 2022 until they separated when on holiday in Melbourne in late 2022.
It is clear from the evidence that throughout their relationship the father worked and spent significant periods away from the family particularly in the later years. It is not a criticism of the father that he travelled for work, that was a family decision. The reality is that since late 2018, the children have spent limited periods of time with the father. Communication via video calls cannot substitute in person time where the father is involved in mundane day to day family routines.
Both parties made sacrifices for their families’ benefit. When it was suggested to the mother that the 2018 separation was hard for both of them, she said it was harder for her and the children as they were young, but she agreed that the father regularly communicated with the children via WhatsApp and he would also FaceTime the children. When showed a screenshot of the children watching a film online with the father, she conceded that the children did watch movies with the father online from time to time but claims that this was only for a short time. The mother accepted that there is a considerable process involved in moving to a new country, but she said that they had their visas already in 2018 and that the father left them in Country C on purpose When he was in Australia, he kept making excuses as to why they could not come to Australia yet. The father denies this.
The mother accepted that the father sent money to them in Country C and when she arrived in Australia, she had access to a debit card but maintained that the father did deprive her of finances. She went on to further say that he would control the amounts that she could have and would give specific amounts for groceries and would tell her that she had to cut costs. She denied this was the father budgeting and said that he was dominant and controlling.
The mother agreed that when they were travelling to Australia, Y was excited to see her father at the airport but says that X was not that happy and that when she told X that they would be going to Australia to join the father, X told her that she did not think it was a good idea to go because of his behaviour. The mother told X that she was going to give the father one more chance.
FAMILY VIOLENCE DURING THE RELATIONSHIP
The father was keen to present the family as a normal, happy family without problems. He says the mother was the primary carer and he was the primary income earner. In order to provide for the family, he had to spend significant periods of time away from them. He denies all allegations of family violence and repeatedly states in his affidavit that he requires the mother to prove her allegations. The father showed a poor understanding of family violence in his trial affidavit and oral evidence during the final hearing.
The mother gave oral evidence in chief about incidents of family violence that she remembered during the course of listening to the father’s cross-examination. As a result, the father’s Counsel was granted leave to recall the father to ask him about those incidents and he was briefly cross-examined by the mother’s Counsel again.
It is not unusual for someone who has been subjected to significant family violence over a lengthy period of time to try to block out the traumatic memories and therefore may not include those incidents in their trial affidavit. With respect to coercive controlling violence, that type of violence is not incident based and can be difficult to describe. Often it can be difficult for a person in the midst of a relationship of violence, coercion and control to recognise what they are experiencing is abuse.
X’s burnt hand
X told the Court Child Expert that the father had once burned her hand and proceeded to show the Court Child Expert the scar on the inside of her palm. In cross-examination, the Court Child Expert confirmed that it was in the context of describing the father’s physical abuse that X gave this as an example of how the father treats herself and the mother worse than Y. The father said that X was brainwashed to say that, and that he did not know how she would remember what happened when she was only 18 months old. It is concerning that X spoke about this to the Court Child Expert in the context of physical abuse as X would not have an independent memory of this. This raises concerns X has been given a false narrative as this was not an incident of violence but of a failure to take care of and supervise X.
In his trial affidavit, the father says X burnt her hand when she touched an iron thinking it was a toy. He said both parents took her to the hospital and looked after her. He also says that X acknowledged it was an accident that happened to her as a baby and no one was at fault. When cross-examined about this conversation with X, the father said it came up when they were talking about old family incidents. He said he asked X if she remembered it happening. She said she did. The father claims he told her that he takes the blame and that X assured him that it was not his fault. He claimed they were going through old photographs and talking about cherished memories. This seems to be an odd thing to raise in that context.
The father admitted that he had been ironing. The father said he had finished the ironing, and the iron was unplugged. It was negligent of the father to leave the iron where X could grab it. The mother heard X screaming from the next room and came in and saw X with the iron stuck to her hand. She told the father that he should not have left the iron on the floor as X was crawling by then. The mother agreed that it was an accident but said that the father should have been more aware and that a lot of the time she was the only parent.
The hospital records marked and tendered as Exhibit 8 refers to X burning her hand on the stove. The father said the hospital misunderstood what the mother told them. He said he did not want to interrupt to correct her. The mother denies speaking to the doctor and that she told the doctors about the burn happening on the stove and not with an iron and said it was clear from the scar that it was not from the stove.
She says she was focused on X and was holding X in her arms and comforting her and was not focused on what was being said. The mother’s version is more credible. Given the father’s comments on the mother’s English and their respective roles in the household, it is more likely that the mother was comforting X as she says, and the father spoke to the doctors. I accept that the father was as distressed and concerned as the mother.
Alleged violence towards the mother
The mother claims that the father assaulted her on many occasions between 2010 and 2022. The father objected to the word assault being used and denied assaulting her.
During her oral evidence in chief, the mother said she recalled further incidents of family violence during the course of listening to the father’s evidence. Firstly, she said she could not recall the date but when they were living in the United States the father got angry at her and took a weapon and waved it in front of her. The mother was tearful when recounting this.
She also said there was another occasion in Country C when the father smashed a chair in front of her. There was also another time he tried to hit her but her father stopped him. She said there were a lot of other incidents.
At paragraph 28 of her trial affidavit the mother describes another incident of family violence that occurred in 2016 when the parties were living in the United States. She says the father assaulted her inside a car and that the police watched the assault unfold on a camera. The police then pulled the father over and confronted him and told him they saw that he hit her on camera. The father denied hitting the mother. They then proceeded to ask her if she was okay to which she said she was fine. The mother says the children were present in the car. The following day the mother says the police called her and asked if she wanted to report the incident to which she said no.
The mother spoke about this incident in her examination in chief. She said the incident occurred in 2016 after she had recently given birth to Y. She then provided more details and said that it was after a doctor’s appointment and that the father hit her in the face. She says a police officer saw them, followed them and stopped the car. She then said that he hit her several times breaking her sunglasses. The mother says the police officer spoke to her and gave her his card and took her number. She was scared and said that she was fine. The police officer phoned her a few days later and asked if she was okay and she said nothing had happened. After she got back in the car after talking to the police officer at first the father was quiet but then he started asking what she said to the police and she assured him that she did not complain about him. She told him to stop treating her that way and that the father then started blaming her and saying that he would get into trouble with the police if she said something. She did not mention that the children were present.
On another occasion the parties were walking in the evening when X was a few months old when the father became angry and grabbed the mother’s arm with enough force that the bracelet she was wearing broke. When challenged about these incidents, she said there were many violent incidents.
The father denied that any of the incidents of violence the mother recalled in her oral evidence in chief ever took place. He complained that these statements were only allegations and that he does not know why the mother keeps making these up. He then complained that she has lied in the past and that she knows the “loopholes”. When asked to explain what he means by that, he said that her seeking a security guard be with her in the Court is to make him look bad but that he is more scared than her of coming to the Court.
Further incidents of family violence
The mother also claims that the father threw her out of the house on many occasions. The father said the mother never reported this in 13 years of marriage and that the mother was making this up because she was angry at him. Commonly people do not report family violence for a range of reasons, including shame.
The mother also says that the father was verbally abusive, often calling her “useless”. X also refers to the father being verbally abusive towards the mother in the Child Impact report by calling her “worthless”. The father insisted that X had been “guided” to say that. When it was put to the father that he had agreed with the police in late 2022 that he had called the mother useless, although he acknowledged this, he said he would not have said it in the context suggested. He gives no indication of what the other context could have been. It is difficult to imagine a context that is not derogatory. He then claimed that he asked the mother to be helpful.
The mother said that when the father would scream at her the children would be frightened and they would go into another room and be quiet. They would later come and console her and tell her that they knew that she had not done anything, and she would tell them it is okay and suggest going outside to play.
During cross-examination, the father denied pushing the mother at least twice when they were living in Suburb H and denied that the mother ever locked herself in the bathroom that had a lock. The father said this lock was broken. He also denied restraining the mother and the mother running away to the children’s school and said it did not happen that way. He said the mother’s practice was to go to the children’s school and wait for them.
The ICL’s Counsel asked the mother why she did not report any of the incidents of violence. She said when they were living in the United States she was scared. She did not have any family there and did not feel she could express it to anyone, so she cried and kept quiet. They went for days without speaking. She used to think it would get better but his behaviour got worse. He would get angry and would say next time he would not. The mother said he was controlling and always wanted to know where she was going. She also said that in Country C culture, girls should not break up the family as they feel protected. It is common for women in the mother’s position not to call the police or report family violence for a variety of reasons including shame and fear of repercussions. It must also be remembered that the mother was in a new country having only arrived a few months before and English is not her first language. It is still too common for women to be misidentified as perpetrators particularly when they are from another culture.
When the mother told X they were going to Australia, X tried to convince her to change her mind, saying that they were settled at school and everything was good where they were. The mother said that maybe the father will change. The father agreed with the ICL’s Counsel that X was taking on the protector role for her and Y. This is of concern because it is reflective of X becoming parentified. She needs assurance that she can be a child and does not have to be the protector of her mother and sister. I am satisfied that the mother and later the children were subjected to various forms of family violence by the father.
Disciplining and hitting the children
The father claims that the mother asked him to be the “strict parent” as the children did not listen to her. He denied ever hitting the children. He said he only scolded them a couple of times.
He denied ever kicking X around “like a football”.
He denied hitting X so hard her mouth bled and said it was a wobbly tooth that she told both parents about. The mother maintained that the bleeding did not come from a wobbly tooth.
He denied the mother ever telling him not to hit the children as he never did. I do not accept this. The father made vague and generalised statements.
The mother does not allege that the father hit Y. Her Counsel asked the father that if the mother was making these up why she did not claim that he hit Y as well. He said that his daughters are equal to him and he does not know why the mother has not made up an allegation about hitting Y too. The father told the Court Child expert that he is closer with Y than X because she is less influenced by her mother. Y is much younger than X. X is protective of her. It is likely that she shielded Y when she could. It is also more likely that as X was older she was more forthright in expressing her views.
In cross-examination the father claimed the mother had asked him to be strict with the children when they would not obey her orders. When asked if that involved hitting them he said yes but then said she never asked him to hit the children. When it was put to him that the mother alleges he hits the children, he initially said he could not remember and then said it never happened. He also again denied that the mother told him not to hit the children.
iPad incident - 2017
The father said he recalled an incident in the USA in 2017 when X had been on her iPad all day and the mother wanted him to scold her. When he was initially asked about this incident, he made no mention of screaming at X. He said that she provoked him and he snatched the iPad away from her. He said he did not hit her and was polite and not harsh. The father then backtracked and tried to retract saying that he snatched the iPad. He said X was not happy when he took the iPad from her. She had been sitting on the floor watching something and was asked to put it away several times but she did not listen. He said she would play under the big table but denied that he tried to get her out from under the table with his feet. When it was put to the father that he often screamed and was toxic, the father replied that there was a one-off incident in 2016 when he screamed about the iPad. When Counsel suggested that this was different to his earlier evidence, the father backtracked again saying he did not remember exactly what happened, but that the scream is made up and it has been interpreted the wrong way. The mother maintained that the father used his feet to get to X who was under the table. She said the father did this many times and that X still remembers. I prefer the mother’s evidence about this incident.
The plate incident – late 2022
The mother alleges that some time in late 2022, that the father smashed a plate when Y refused to eat food he had prepared. The father denied this and said he put the plate on the kitchen shelf and he accidentally knocked it off. He says only him, and Y were in the kitchen at the time. He could not remember if Y was barefoot or not but did remember the mother telling Y not to move so she did not hurt her feet. He said they were startled when the plate broke but he denied smashing the plate in anger. The mother maintained that the father smashed the plate in anger on the tiled floors in the kitchen. She was concerned that Y could cut her feet on the broken pieces as she was barefoot.
The father’s Counsel suggested to the mother that she did not call the police because the incident did not happen. The mother denied this. It is not unusual for someone in the mother’s position not to call the police, particularly when they are in a new country. The mother had only been in Australia for a few months.
The road incident – late 2022
In late 2022 the parties were on holiday in Victoria with the children. In his trial affidavit the father refers to himself and the mother having an argument over “some research that I asked her to do about our children's schooling in 2023 which resulted in yelling and shouting by both of us”. He says he stopped the car at the side of the road as he did not want to drive whilst they were arguing and did not want to put his family or other road users at risk. He says as soon as he stopped the car the mother tried to get out of the vehicle. The father says he tried to stop her from getting out of the car by grabbing her shoulder as he was concerned for her safety given the amount of traffic around. He says he later calmed down and drove to his friends’ place.

The mother describes the incident in her trial affidavit very differently. The mother says the father started an argument and stopped the car on the side of the road. He then started hitting her on the side of her head and put his arm around her neck in a choke hold. She says X was screaming for her father to let her go and to stop hurting her mother, Y was also screaming. The mother pleaded with the father to stop but he refused. The mother says she then pushed her phone to X and she grabbed the phone.
In her trial affidavit, the mother says she heard X say to the father that if he did not let go of her he would hurt her with the weapon and that she had the emergency number dialled in one hand and weapon in the other. The father then let go of her pushing her out of the car and grabbed the children who had since exited the car. He then started berating the mother and threatened to leave her there and called her useless. Both children started yelling at the mother to get back in the car so that the father would not leave without her. The mother got back in the car and the father drove again stopping a short time later.
The children referred to the incident when they spoke to the Court Child Expert. X said that the father was repeatedly slapping the mother and had “tried to murder her” in the car by choking her. She said that he only stopped when she threatened to call the police on the mother’s phone. X then went on to say it was at that point the father grabbed the phone off her and shouted at the mother “I will leave you and take the kids”. Y said that the father tried to kill their mother in the car by slapping and choking her.
When the father was cross-examined about the incident, he emphasised that both of them were arguing. He conceded it was not good for the children but said the children were trying to calm both of them down and that they were not crying much.
The father insisted that the mother was not afraid of him and that she was not trying to get out of the car and run away. He said the mother was angry and that it was not safe for her to get out of the car and that he was only trying to stop her getting out of the car.
During cross-examination, the mother was able to describe in detail how the father grabbed her around the neck, scratching her and breaking her necklace. She had one hand on the dashboard and also described the father slapping her face and head with his left hand. She described X coming around to the other side of the car and the mother passing the phone to X. The mother could not move and had trouble breathing.
The father said he did not grab the mother around the neck but grabbed the collar of her jacket and accidentally broke her necklace. The father would not accept the proposition that breaking the necklace could have given the mother the sensation of being choked and said he did not think that could cause physical harm.
The mother’s Counsel suggested to the father that when describing Y saying “let’s be a good family” that he was giving the impression that the children were calm when in fact they were screaming. He conceded they were screaming.
The father denied slapping the mother and putting his arm around her neck. He claims that he was able to calm the mother down and found a park a few kilometres away and says they had a good conversation.
He denied the children getting out of the car and pleading with him to let their mother go. When cross-examined however he admitted the mother said he was hurting her but went on to stress again that the children were screaming at both of them not just him and asking both of them to calm down.
The father said he had to hold onto the mother to protect her from getting out of the car. He denied seeing X with a weapon and said that was made up. He also denied that the children were screaming for the mother to get back in the car. The father said the children were not afraid that he was going to drive away without the mother but were afraid for the mother’s safety if she got out of the car. He also denied pushing her out of the car and hitting her. He denied threatening to leave the mother there.
After the mother got back in the car the father drove for a short while and then called the mother’s brother in Country C. Again, the parties give different versions of that conversation.
The mother says that the father told her brother that he was hitting the mother every day and would continue to hit her and called her useless. The mother got out of the car again. X yelled at her to get back in the car as the father would leave without her. The father denies that he made any such comments to her brother during the phone call on the side of the road. He does not give any indication as to what exactly was said.
The father claimed that they stopped and ordered food and that the mother was happy. The father said he called the mother’s brother “because he is a nice person to me”. The father’s evidence in this regard lacks credibility. If everyone was calm and happy there would have been no reason for him to call the mother’s brother. He then claims that he asked X to take Y to the bathroom and said to the mother that they should call her brother to let him know they are safe. Again, there would be no reason to tell the mother’s brother in Country C that they were safe.
The father said he could not remember whose phone he used to call the mother’s brother. He denied claiming that the mother was useless and said he asked her brother to please calm the mother down as they were both upset and the mother was angry. Within minutes the father gave conflicting statements which cannot be reconciled. The mother says the father was yelling at her brother and calling her useless. Her brother asked him if he wanted to keep his daughters and his sister as his wife. The father then yelled at her brother accusing him of breaking the family. The mother’s version of events is more credible.
The father also claimed that the children were only frightened for a few minutes and that they went back to his friend’s place and watched television. I do not accept this.
The father was cross-examined about his comment made at paragraph 18 of his trial affidavit:
1 am very regretful that I responded as I did, which caused this Final Family Violence Intervention Order to be made and estrangement from my family. I intend to gain insights into why and ‘rehabilitative tools” from the Men's Behavioural Change Program and the Parenting Order Program I am about to enrol in.
It is telling that when cross-examined about his comment about regretting this incident the father said that he did not regret the way he responded but rather regretted the situation. He went on to say that it could have been handled differently and stressed that it was both their fault not just his. The father has a complete lack of insight and does not take responsibility for his actions.
The father’s evidence about this incident was not convincing. He took every opportunity he could to minimise the seriousness of the incident and to emphasise both parties being responsible for arguing and that the mother and children were not afraid of him.
The father also stressed that he thought X had been “guided” by the mother to make false statements. He insisted that the children did not get out of the car and were only afraid for their mother’s safety if she got out of the car. He accepted that at age 12, X would be able to tell the difference between a protective hold and a slap, and that she would know slapping the mother is wrong but continued to deny that this had happened.
In her trial affidavit at paragraph 32 the mother says:
…I heard [X] say to [Mr Hira], “Dad if you don t let go of Mum right now 1 have the emergency number dialled in one hand! and [a weapon] in the other! I am going to stab you with [this weapon] if you don t let go right now!” At that moment, [Mr Hira] let go of me, pushed the children back into the car as they had at that point stepped out of the car…
The mother denied exaggerating the incident. She said that X did get out of the car and grab the phone and a weapon and became tearful saying that her daughter was trying to protect her. The father's Counsel suggested that she made up X’s comment about threatening to dial triple zero and having a weapon as there is no mention of this in the police preliminary brief. The preliminary brief is a summary prepared by the police officers. It does not contain any statement made by the parties and there was no reference to an interpreter being involved to assist. The mother said she might have missed a few points as she was so scared and in shock. This is plausible.
The mother was asked about the fact that she told the Court Child Expert that she threw the phone to X but that she makes no mention of any weapon and any reference to saying that she would stab him with the weapon. The mother said that she still remembers X saying that and that it happened.
The mother’s evidence of the weapon is somewhat confusing. During cross-examination, Counsel for the ICL asked the mother if she actually saw X with a weapon. The mother clarified and said that she did not know that X had a weapon at the time of the incident as she did not see them. This is different to what she told the father’s Counsel. This is hard to reconcile with the mother’s trial affidavit where she indicates that she was aware of X having mentioned having the weapon during the incident. The mother went on to say the children loved their hobbies and the weapon was an object that would have been in their bag. When Counsel for the ICL then asked the mother when she found out about the weapon the mother said she found out the day after she flagged down the police. She said X started to tell her in the car on the way to the station after the mother spoke to the police, but the mother told her to wait until they were in private at the mother’s friend’s house that evening. X told the mother later that she took the weapon out of their backpack where she had other supplies.
The mother maintains that X did say she would call triple zero. It is unclear how the mother can claim that she heard X threaten the father with the weapon when she now claims that she did not know X had a weapon until after the incident. The father’s Counsel emphasised the lack of mention of any weapon and calling triple zero in the police preliminary brief as being evidence of the mother lying and exaggerating the incident. I accept that the mother’s evidence is inconsistent about this but the confusing nature of her evidence about this is because of the nature of the incident and the resulting trauma. I do not think the mother was lying or exaggerating her experience.
She denied that the father pulled over to the side of the road for safety reasons. She also denied that the father just grabbed her collar. She says that the collar was very small on her jacket. She said X did get out of the car and Y was also crying and begging the father to stop hurting the mother. X told Y to stop crying and spoke to the father.
The mother denied the father calling her brother because he was concerned for her wellbeing and says that he told her brother that he had hit the mother and would do that again and again. She said she had no option but to go with the father and the children to dinner afterwards. When it was suggested that the next day everything was normal, she disagreed and said that she and the children stayed in the same room that night and that they were crying throughout the night. When questioned, the mother said she and the girls slept in a different room to the father and that they were crying throughout the night because they were scared. She said they were all scared because they father had choked her that day. She said she could not move, and the girls saw it all. It makes sense that the mother and children would try and act like things were normal. The fact that the father claims that everything was normal the next day is either indicative of his utter lack of insight or is disingenuous. I prefer the mother’s evidence.
Late 2022
In her trial affidavit the mother says at some point after the road incident she flagged down police and they took statements. However, it is clear from the documents and the trial affidavit that this occurred the following day. The mother gives a far more detailed account in her trial affidavit than the father.
The next day, the parties and the children all went out with the father’s friend. This friend was not called to give evidence. The father denied that the friend was not giving evidence because he would not support the father’s story and that he did not know why he was not called and that he had caught up with his friend the day before.
Whilst the father, his friend and the children were playing by the beach the mother flagged down a passing police car. The father says he was shocked when he saw the police and did not know why she flagged the police down and that the police took him aside. The police also took the mother and the children away in the car. He claimed that the mother did not look afraid. This comment is self-serving.
Both parties were extensively cross-examined about the police preliminary brief which was tendered and marked as Exhibit 1. The police preliminary brief summarises field interviews that were taken with the parents separately. The police preliminary brief refers to X witnessing the incident but there is no reference to any police officer speaking to her. There is no mention of Y. The police conducting the interviews were wearing body worn cameras. The police preliminary brief summarises the interviews with both parents. These are not statements made by the parties.
The father said the police were aggressive with him and were asking him tough questions. They were trying to protect the mother. He says it was his first experience of being interviewed by police and he was afraid and could not remember what he said to them.
The father was cross-examined about the summary of his interview. The summary refers to there being a little disagreement and the father complaining that he was not getting the support he wanted from the mother with respect to researching schools. He described it as a heated argument. He denied slapping the mother and said he did not hurt her. He said he was pulling her to stop her getting out of the car.
When the police officer asked the father about the children telling him to “stop doing that to mummy”, he replied that the children thought he was doing something wrong. The father said that he was not and that the children told him to stay calm. He again denied slapping the mother and said he thought the matter was for the betterment of the family and was a normal situation. When this was put to the father in cross-examination that in an unguarded moment, he told the police officers the truth, he said it was never normal and he did not know where they got that from. He also said that he did not know why he said the mother is 100% dependent on him. When the mother’s Counsel suggested to the father that he said that because it was true, he said not in that context and that they agreed he was the earner and that she was looking after the children. The father then conceded that the mother was financially dependent on him and that she was away from her family and supports.
The father admitted to the police that he called the mother useless in front of the children and said he took responsibility for that. He then repeated that he had to stop her getting out of the car to protect her. The Police officer then recorded that the kids live with the mother most of the time so of course they would protect her. It is telling that he is emphasising that even then. The father conceded that he does call the mother useless “once in a blue moon”.
When the father was asked about X telling the Court Child Expert that he slapped the mother several times and Y’s comment that he tried to kill the mother, he said the children have been influenced by their mother as they are staying with the mother and are fed by her so they will say whatever the mother wants them to. He went on to say that until this incident, X was an honest girl but now she seems to have been brainwashed and seems totally different. The father again denied there being conflict during the relationship and said there was the occasional disagreement. He did not accept the proposition that what might not seem serious to him could be very serious to X. It was apparent during many points during his cross-examination that the father was concerned to portray himself as the innocent party and did not show any capacity to see things from another perspective, particularly the children’s.
The children’s narrative to the Court Child Expert is consistent with them witnessing a frightening violent traumatic event. They did not parrot each other or the mother. The father’s insistence that as the children live with the mother, they will say whatever the mother wants is seriously underestimating his children’s intelligence and ability to speak about their own experiences and perceptions. This consistent attitude of the father’s heightens concerns about risk.
The father could not even concede that what seems like a minor disagreement to him may appear serious to X. This rigidity and inability to acknowledge that someone may experience and interpret things differently to him heightens the risk. The father’s continual denial of the children’s experiences would be harmful to them if he expressed them.
I prefer the mother’s evidence to the father’s with respect to the events of late 2022. Her narrative was for the most part was consistent, and her evidence is credible.
INTERVENTION ORDER AND ASSAULT CHARGE
Victoria Police took out a FVIO against the father after the mother reported the road incident to the police.
An interim FVIO was made in late 2022 listing the mother and children as protected persons. The interim order contained the usual restraints. Relevantly order 5 prohibited the father from contacting or communicating with the protected person including the mother and the children by any means. However, order nine contained the standard order permitting the father to do anything permitted by a family court order, a child protection order, written agreement about child arrangements, or to negotiate child arrangements in writing by letter, email, or messages. These are standard orders in FVIOs but appear contradictory. The same orders appear in the final FVIO made in early 2023 save that order five only refers to the mother and not the children although they remain named as protected persons.
5. Contact or communicate with a protected person by any means, in respect of [Ms Dipak] only.
9. The respondent may;
(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or #
(b) negotiate child arrangements by letter, email or text message; or
(c) communicate with a protected person through a lawyer or mediator; or
(d) arrange and/or participate in counselling or mediation; or
(e) go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.
BUT ONLY IF the respondent does not commit family violence while doing so.
The father agreed to a final FVIO being made without admissions for one year in early 2023.
The mother said that the father continued to abuse her emotionally and psychologically after the FVIO was granted and said he did this by trying to contact her through friends and putting pressure on her to withdraw the complaint.
The mother complained that the father continued to contact her via calls and texts and complained that he was not allowed to contact her and said that he used good and polite wording in text messages because he is good with documents and has worked professionally for many years.
She claims that she would ask the children if they wanted to speak to the father on Father’s Day and they said no. She also said that the father could have contacted X through her iPad but did not. I am of the view that if the father had contacted X directly through her iPad, it is likely that the mother would have complained. It was appropriate of the father to not contact X directly in this way.

It is telling that the father in early 2023 first asked the mother to arrange a video call for him with the children. He then sent a second message a short time later saying “I am really sad for whatever happened during the Melbourne trip…” which reads as if he either does not know what happened or that it was something outside of his control.
The parties exchanged a few emails where the father asked to speak to the children. The mother responded to one of them telling him he was breaching orders. The father was interviewed by police in early 2024 and was cautioned about his communications with the mother via emails and text messages. I accept that the mother believed the father was only allowed to contact her via her solicitors. The police warned the father not to contact the mother by any means. The father was advised he could seek a variation of the conditions to clearly stipulate permissible contact and was warned that he may be criminally charged if he breaches the FVIO again. He has not obtained a variation of the conditions.
I think there has been some understandable confusion between the parties and that the FVIO orders are somewhat contradictory. However, the message dated late 2023 that the father sent the mother asking if she and the children would come home was inappropriate as it is pressuring the mother.
The Court Child Expert said that the father sending messages such as the one he did apologise for whatever happened in late 2022 and asking the mother to stop poisoning the children could have a negative impact on the mother, which in turn could flow onto the children.
Assault Charge
The father was charged with assault in early 2023. The father pled guilty in early 2023 and was given a diversion and good behaviour bond which he has completed. The assault was with respect to the incident in late 2022. Significantly, the father’s trial affidavit is silent about this. As Counsel for the ICL indicated, the guilty plea and the conviction is evidence of the father committing violence. The father reluctantly accepted that pleading guilty to assault is evidence of violence but immediately qualified that by saying “in that context otherwise no”. When asked again about what responsibility he took for this incident, he emphasised that they should not have argued and that they both should have managed it totally differently.
The mother claims that the father’s solicitor in the FVIO proceedings contacted her allegedly saying that the father would give her money if she waived the conditions other than the first two. The father obtained an email from that solicitor who denied that conversation, which was tendered and marked as Exhibit 5. She maintained that his solicitor offered her money to drop the complaint despite the solicitor denying this in an email. It is unlikely that the father’s solicitor would have said that to the mother as this would have been unethical.
PARENTING CAPACITY AND INSIGHT
When asked why he wanted to do a parenting course, the father said it was because the Court recommended it as they saw something to fix and that everyone has scope to improve. Despite this statement he was unable to identify his parenting flaws.
With respect to the men’s behavioural change course, the father said that after three sessions and after a psychological assessment he agreed he had scope for improvement. He then said that the road incident was a one-off incident, but that violence includes verbal. He also said that he thinks there should have been orders for both parties to do the course but as he was ordered to, he complied.
The ICL’s Counsel cross-examined the father about his amended application seeking to spend time with the children as agreed or in accordance with the children’s wishes. These were the orders he was seeking when he prepared his trial affidavit. He does not mention family therapy or supervised time in his trial affidavit. The father said that he knew until he completed the courses, he would not be given time with the children. He then said the children are the centre of his universe and he cannot live without them.
The ICL’s Counsel challenged the father about the fact that several times during his evidence he referred to things being misinterpreted, being taken out of context or misunderstood. The father responded that he is just a common man. He was then challenged about various matters he did not refer to in his trial affidavit. He said he could not remember what he said in his trial affidavit.
The father was also challenged about his failure to mention the assault charge in his affidavit. The father claimed he was afraid to read the documents. His trial affidavit is incorrect as he says he was not the subject of any investigation. He conceded that an assault is a serious act of violence. He then claimed that he told his solicitors that he was saving money for the children and that he was happy there were no criminal charges and only a diversion. That is a misstatement of what a diversion is. The ICL’s Counsel suggested that the father did not mention the assault charge in his affidavit because he knew it was detrimental to his case. The father then claimed that he did not know if he was charged or not. I do not accept this. It is another example of the father deflecting and being determined to present himself in a positive light.
When it was put to him by the ICL’s Counsel that the Court Child Expert does not recommend supervised time, the father said he understood that this was only until he completed the courses. The father continued to seek to deflect by saying that the language was very technical which is why he stopped reading and relied on his solicitors. He then claims that he understood paragraph 34 of the report to be about both supervised and non-supervised time, and said he wanted time until he had finished the courses and then continued on to say that he wanted some sort of access. When it was put to him this was inconsistent with what he said the previous day, he said that he was not a technical person and did not read all the documents and again was trying to distance himself from his own documents. When his proposed order from his further amended application filed 5 December 2023 was put to him which provides for time to be gradual or in accordance with the children’s wishes, he said he understood that to be no access to the children. He could not say how this was more child focused than what he sought at the trial. What is significant is the fact that the order he proposed in his further amended application filed 5 December 2023 is that he was not in control of whether or not he spends time with the children.
The father said it seems to him that the children have been influenced by their mother and that they are lying. It was pointed out to him that in his further amended application he was relying on the children's wishes but is now questioning their wishes. He also said that he knows that the children are missing him because he knows them very well and that he can read their brains and their minds and knows them in and out. He would not accept that even if this is his belief that it might not be the truth.
He maintains that the children refer to not needing their father and not putting their needs first or wanting to see him is a result of external influence and that he could not imagine at all that the children may be frightened of him. He agreed that he might have told the Court Child Expert that Y was less influenced than X because he is closer to Y. When it was put to him that Y said she was apprehensive of the father and said that he tried to kill the mother he referred to the mother influencing a small child as well. The father has no insight or capacity to accept that the children might have a different view to him. Y saying that the father had his hands around the mother's throat and was pulling her back into the car may very well have appeared to her that he was trying to kill the mother.
The father then referred to the brief nature of interviews and did not agree that X has taken on the role of protector and says this has been made up.
When the father was asked to reflect on what impact the road incident may have had on the children, the father said that it was an argument between parents and that everything was back to normal the next day until the mother contacted the police. He then said that of course the children would have felt bad seeing their father with the police. He maintains his belief that the mother only raises this allegation after she obtained permanent residency in Australia and that there is a man in Country C who she wants to sponsor to come to Australia and marry. He then began to complain about the mother claiming that she was a professional for five years and that she is receiving benefits from that and that he feels helpless. He said that he feels that she is played the “victim card” and that she is more educated than him and therefore has a greater advantage and that she has made up not being able to speak English. This ignores the father’s own evidence about the mother’s level of English and was another attempt to deflect from his own conduct.
The father confirmed that despite the details the children provide about their recognition of the violence, he maintains that it is not their lived experience. When he was asked about the concern about the risk to the children's mental health, he then complained that the expert only spent one hour with him and that it should be a year of observations before an expert makes a conclusion. Again, this is the father deflecting.
CHILD IMPACT REPORT
The parties and children attended upon a Court Child Expert for the preparation of a Child Impact Report in August 2023. The parties were interviewed over video. The children attended the Registry in person the next day. There were no observations of the parents with the children.
On 13 December 2023, at the Compliance and Readiness Hearing, the following notations were made:
A. The key issue for determination at final hearing is the spend time arrangements between the children and the Father in circumstances where:
(i) the Child Impact Report recommends no time between the children and the Father; and
(ii) the Mother and Independent Children’s Lawyer seek orders in accordance with the recommendations of the report.
B. The Father’s position is that parental alienation has occurred and the Mother has alienated the children from him.
C. The Father concedes the Mother should have sole parental responsibility for the children, however is seeking orders be made requiring the Mother to consult with him prior to any decision being made.
D. The Court is of the view that a family report is not necessary as a Child Impact Report prepared by Court Child Expert, [Ms F] was released to the parties on 15 August 2023.
A Child Impact Report is a preliminary form of assessment. The Court Child Expert emphasised this on several occasions during their cross-examination. The report itself refers to being preliminary expert advice about the needs and experiences of children to support decision making through dispute resolution processes and/or interim hearings and that the views and recommendations of the expert need to be considered in that context.
The mother told the Court Child Expert that there were lengthy periods of separation during their marriage due to the father's work and that she and the girls formed a tight bond which the girls confirmed. The mother also said that she was focused on keeping the family together and that is why they went with the father to the United States and why they joined the father in Australia although she said the father kept delaying their arrivals. She said she did not want a broken home for the children and that she did not report anything to the authorities prior to the road incident.
The father expressed his concerns to the Court Child Expert about the children being brainwashed and expressed concern that his absence from the children's life would be causing them problems and that he wanted them to know that he had not abandoned them and reported his distress at not having any contact with them since late 2022.
The mother reported that she was concerned about X because she had experienced a lot during the relationship and that the father hit X as well as her. She said that Y would act out after periods of experiencing family violence but would settle usually within a couple of days and that she was not observing that behaviour in Y currently.
When the mother brought the children to the Registry to be interviewed, Y was visibly anxious and timid but agreed to come with X. X was described as being confident and articulate and willing to talk about their family life. She said her mother had been amazing for taking care of them for years and that the father had been absent a lot during their lives. X further said that when the father was there, he would always be screaming, be physically abusive and toxic. She said he was more violent towards her and the mother and less so to Y. She complained about the father not giving them money for food and that they would go hungry and that he would be verbally abusive towards the mother in front of them calling her worthless amongst committing other violent acts.
X described the late 2022 incident saying that the father slapped the mother repeatedly and tried to murder her by choking her in the car and that he only stopped when she threatened to call the police on the mother's phone. She said that at this point the father grabbed the phone from her, and he was shouting at the mother and said that he would leave her and take the children. X says life is better without their father and that she feels safe and happy and loves her new school. She did not identify anything positive about the father.
Y was apprehensive and quietly spoken. She drew a picture of her family with herself in the middle, her sister on one side and her mother on the other. When asked about her father she said she did not want her father in the picture was he was not part of the family. She then said that he tried to kill their mother in the car by slapping and choking her and reported that the father hits all of them and shouts at them a lot. She said she feels safe and happy at her mother's home and at her new school and has made new friends. Y also could not identify any positive things about the father.
The father denied any form of family violence and said their home was a healthy environment with no conflict other than the occasional disagreement. He also claimed that they were under short periods of separation which given the chronology outlined earlier in these reasons is plainly wrong. He said the mother was fabricating the allegations of physical violence and abuse and was trying to poison the children against him. In contrast, the mother gave a detailed significant history of emotional and physical violence and abuse and coercive controlling behaviour. The mother reported constantly trying to appease the father's mood and modifying her behaviour and comments to try and shield the children from his behaviours. She said the father would constantly scream and frequently locked her out of the house including once in the United States when it was snowing. She said that her father was present on one occasion when the father hit her and reported that X in particular would intervene in her defence in violent episodes. The mother gave examples of the children being abused by the father and said that when they were living in the United States, the father became angry with X for making a mistake in her lessons and started kicking her until she bled from the mouth and reported the father becoming enraged when Y refused to eat food he had prepared where he then smashed a plate.
The mother also described the late 2022 incident where the father was choking her and breaking her necklace in front of the children and that he only stopped when X threatened to call the police. The father denied any violence and said he was acting protectively towards the mother and grabbing her to prevent her from getting out of the car whilst it was moving.
The mother expressed significant fear for their safety and was fearful that as the father was a professional, he may be able to find out where they are living.
The father expressed fear that the mother was turning the children against him and that she had a further incentive to make false allegations now that she had permanent residency in Australia. He claimed that she had begun a new relationship whilst in Country C and was planning to divorce him and cut him out of the children's lives and bringing the other man to Australia to marry her. This was not put to the mother in cross-examination at all.
Cross-examination of the Court Child Expert
The Court Child Expert was required for cross-examination. She confirmed that the children came into the playroom at the Melbourne Registry together and then she interviewed them separately in another room.
The Court Child Expert referred to the mother’s narrative as compelling and consistent with experiencing long standing cycles of violence with periods of separation.
The Court Child Expert observed that whilst the father denied any violence, the children recall the violence in detail and regard the father as unsafe. She goes into great detail about the effect of the family violence on the children and their future needs in paragraphs 27 to 30 of her report. These paragraphs are set out below:
Although [Mr Hira] denies his use of violence, the children recall it in detail. They regard him as an unsafe person for their mother and themselves. Family violence is a form of harm to children and is considered a parenting choice. The impacts for children and their relationship with perpetrators can be complex and longstanding. These impacts are not always immediately detectable. Given their reported past experiences, [X] and [Y] are at increased risk of adverse mental health mental health outcomes as adults.
Despite [Ms Dipak]’s best efforts to shield the children from the cycle of violence and control, this pattern is confusing for children, who require both parents to be safe and protective. As [X] progresses towards adolescence, she is at an important developmental stage, where she is developing her own self-esteem, confidence and understanding of relationship dynamics. She requires supportive adults around her to guide her, and provide her with positive social role modelling. [Y], from a young age, experienced lengthy periods of absence from her father. Her lived experience of her father, when reintegrating in to the family unit, will likely have been frightening and confusing, as she tried to make sense of a parent who presented as unsafe, when she was wholly reliant on him to be a protective factor.
Separation has likely somewhat mitigated risk of further violence, particularly while [Ms Dipak] and the children are living in an undisclosed location. Healing from past lived experiences of family violence for the children, may be improved by [Mr Hira] taking responsibility and accountability for his actions. [Mr Hira] is less likely to be able to respond to his children’s emotional needs adequately if he does not acknowledge the harm his past family violence has caused them. Further, the children require that [Mr Hira] demonstrates he is placing their needs and wishes first, by listening to and respecting their feelings with regard to spend time, or a relationship with him, rather than attempting to enforce same against their will.
Additionally it seems [X] has felt compelled to take on the role of her mother and sister’s protector, exacerbating risk to her wellbeing now and in the longer term. The children’s narrative appears wholly aligned with their mother’s in relation to family violence. If the children have, as per [Mr Hira]’s reported concerns, been unduly influenced by their mother’s narrative, there might be conflicted loyalties with regard to spending time with their father. This could have future adverse impacts not only on the relationship with their father, due to a ruptured relationship, but potentially later on with their mother as well, if they come to view this influence and loyalty differently as they mature.

The Court Child Expert described the father’s denial of family violence as problematic as it shows a lack of insight into the harm his behaviours have caused and the unsafe environment that was created for the children. The Court Child Expert concluded that there was a significant risk of harm in this matter and that they would need to be cautious and considered so as not to compromise the mother’s and the children's safety. She recommended that the Court may consider reserving the father's time at this preliminary stage. She said that the father could benefit from parenting courses and a men’s behaviour change course to gain insight into how his behaviour has impacted the children and to gain an understanding of the children's emotional and developmental needs which could assist him in his parenting capacity and willingness to place the children's best interests ahead of his own. She thought the mother could benefit from family violence counselling and that the children would benefit from counselling or family therapy to assist them process their experiences and to explore their views further about any benefits or otherwise of spending time with their father.
Whilst she uses the words family therapy it is clear from the context of that final paragraph in her report that she is not recommending family therapy with the children and the parties. I accept this.
The Court Child Expert thought it would be inappropriate to conduct an observation between the father and the children given the FVIO and the fact that the children had not seen the father for some months. Additionally, the children were clear that they did not want to see the father.
At the time of interview, the father was really seeking any way to reestablish contact. The Court Child Expert confirmed that she allowed for the possibility that the girls were aligned with their mother. She agreed that it was possible that children who have been coached may be reluctant to speak and speak in vague terms thought this is not always the case. They may also sound like they are speaking from a script.
The Court Child Expert readily agreed that there is more scope in a family report to explore the family history and dynamics and more scope to explore the children’s concerns if they feel torn. She did not form the impression that the children were torn between their parents. She did have the impression of X having taken on the role of protector.
She indicated that it would be significant if the father took accountability and responsibility for his actions as it could show the children that he was acknowledging their experiences and putting their needs and wishes first. The father has not done this at all. He has done the opposite by misdescribing the incident as a minor misunderstanding and worse describing himself as acting protectively. When aspects of the father’s evidence were put to the Court Child Expert, she said it sounded very much like the father was minimising his behaviour and its impact on the mother and the children. At the time of her interview some eight months later the father’s insight had not changed. The fact that the father said he learnt that they should not have argued in front of the children suggests limited if any change.
The Court Child Expert agreed that if the children are ordered to spend time with the father it might impact on the mother/child relationship as the children might blame the mother for them having to see the father. In the short term it could result in the children having a lack of trust in the mother. She said longer term consequences are harder to comment on. A lack of trust can manifest in a number of ways including more conflict and feeling let down by their mother.
She confirmed that the father told her the road incident was a misunderstanding and not an act of violence. The father lacked any insight into the impact of the violence on the mother and the children and failed to take any responsibility for his behaviour. She described the impact of witnessing that violence can be a range of regressive behaviour including shutting down and older children can become parentified wanting to intervene beyond their capacity. I am concerned that this is what has occurred for X.
The Court Child Expert also confirmed that the risk comes not just from the act itself, but the lack of insight. Potential consequences for the children seeing the father given the violence, their experiences and the father saying they are a nice family include that the children might act out and have difficulties eating and sleeping. In the longer term it can also lead to adverse mental health outcomes including depression, alcohol misuse and an inability to form trusting relationships.
The Court Child Expert when asked to comment on the impact on the children of the father saying they are a “nice” family. The Court Child Expert said if their experience of normality before their parents separated was violence, this could negatively impact on them because the narrative is so different to their lived experiences. This is a real concern in the case given the evidence.
There was no application for the trial to be adjourned and a full family report obtained at either the commencement or the conclusion of the final hearing. The father’s Counsel referred to it being unusual for a trial to proceed based on a Child Impact Report. This is true, but there are circumstances where such a course of action is appropriate. There is no requirement for there to be a full family report in every trial before the Court. In some instances, a trial proceeds without any expert report. For example, a trial may proceed early to determine the nature of extent of family violence. Depending on the outcome the proceedings may end there where the nature of the violence is found to be such that there should not be an order for time or there may be a further trial after expert evidence is obtained. It is also important to remember that it is one piece of evidence that the Court must consider. It is not determinative.
During the course of the trial, I acknowledged the limited nature of the Child Impact Report and pointed out the possibility of interim orders being appropriate. At the end of the trial no party sought interim orders. Having heard all of the evidence, I am satisfied that it was appropriate for the trial to proceed with the Child Impact Report and not to delay the trial. In cases such as this, it can be appropriate to determine the issue of family violence earlier rather than later which carries with it the possibility of the trial needing to be adjourned or further orders made with further evidence and the possibility of a trial at a future date.
The father could not countenance that the children were reporting their experiences to the Court Child Expert. He became distressed saying the children are lying and that they were innocent and loving and now they were going to be miserable people.
In this case, I am satisfied that it is in the children’s best interests to make final orders, but the father's lack of insight and unwillingness or inability to take any responsibility for his actions was striking.
The father has commenced a men's behavioural change course and is enrolled in a parenting after separation course. The father claimed to have made inquiries about these courses immediately after orders requiring him to do so were made in mid-2023. Although the father was cross-examined about whether or not he seriously attempted to enrol in the course in mid-2023 or until late 2023 or early 2024, I accept that there have been long waiting lists periodically for men's behaviour change courses particularly as a result of the COVID-19 pandemic as this has been raised in several cases before me. Post separation parenting courses are more readily available. I am somewhat pessimistic about what the father will gain from those courses given his evidence.
PARENTAL RESPONSIBILITY
The father’s position about parental responsibility changed somewhat during the course of the proceedings. The father was cross-examined about the orders he sought in his initiating application filed on 16 January 2023 where he sought equal shared parental responsibility and a week about arrangement. His proposal for week about living arrangements was completely unrealistic given the parties live in separate states. Furthermore, even if they lived in the same city, the mother has always been the children’s primary carer. The father has never had significant periods of time with the children on his own.
In his further amended initiating application filed on 5 December 2023 he sought orders for the mother to exercise sole parental responsibility but be obliged to advise the father of her intended decisions, consider his input and then inform him of her decision. He proposed that the children live with the mother and spend time with him “as agreed between the parties in writing and/or in accordance with the children’s wishes”.
In his minute of order filed for the trial, the father sought that the mother have sole parental responsibility but be obligated to consult with him and consider his views before making any final determination. He sought that the children live with the mother and spend no time with him for three months, and then spend time with him once a month for a period of six months supervised from 10.00am to 5.00pm, and thereafter unsupervised time once the father has completed his courses.
During the course of cross-examination, the father mentioned wanting to have equal shared parental responsibility after three months. The purpose of the three-month period is not clear. The father will not have completed his courses by then and on his case his time would still be supervised.
With respect to parental responsibility, the father said that he thought that the mother had sole parental responsibility until he has completed the courses and he has come back and can show that he is not the person that he has been portrayed as. He says he wants to be part of the decision making and says they have done so in the past and that the mother can have sole parental responsibility until he is allowed to have a meaningful relationship with the children. He said that texts are a convenient way to communicate, and he had sent less than 10 texts in a year to the mother about the children but the mother responded to only a couple.
When asked to acknowledge that the mother says she is afraid of him, the father said that decisions will not be delayed because he is very concerned. He was absolute in saying that he knows that the mother is not scared of him. Again, the fact that the father cannot countenance that the mother and children may feel differently about him is an indication of how rigid and domineering the father is.
The presumption that equal shared parental responsibility is in the children’s best interests does not apply because of the family violence. The parents have only had limited text message exchanges since separation. There is no trust between them. The father does not know where the mother and the children are living and where the children go to school.
I am also satisfied that given the family violence that the father has perpetrated against the mother and children that to require the mother to communicate with the father about long term decisions for the children, even with her having the final say could place her and the children at risk and give the father an opportunity to attempt to further control them. I am satisfied that the mother remains fearful of the father and that requiring her to engage in that communication would be difficult and distressing for her and would be detrimental for the children. I will order that the mother have sole parental responsibility.
SUPERVISED TIME OR NO TIME WITH THE FATHER?
During cross-examination, the father was asked if he agreed that supervision was needed because he was an unacceptable risk. He disagreed, stating that he is not a risk to his children but respects the outcome of the Court and that he understood from the ICL that supervision together with completing the courses was important. He then reiterated that the road incident was interpreted as violence but was just a disagreement and misunderstanding. He says he intended to gain insight from the courses and denied delaying enrolling in the courses.
The father’s Counsel cross-examined the mother about the father’s proposal. The mother agreed that the father’s time being supervised would provide her with a measure of comfort but did not agree that some time is better than no time. She also said that any benefit the children would receive from the relationship would depend on the father’s behaviour.
The ICL’s Counsel referred to the father's evidence about wanting to move on from the road incident and asked if the mother could move on. The mother said that there have been multiple incidents where she has, but that this incident was different and was unsure as to how she could move on when he tried to choke her. The mother placed a lot of emphasis on what the children want and said that she wants a happy and secure environment for them. The mother said she asked the children on Father's Day if they missed their father. The children said no and said they will never miss him and said they were happy in Melbourne. The mother says the girls are doing well at school and receive a lot of certificates and that she checks in with the teachers to see how they are doing. She said it took a few months for them to settle in.
With respect to there being no time, the Court Child Expert said this could be seen as protective of the children. Generally, it is in children’s best interests to have a relationship with both parents provided it is safe. If the children come to the view in time that the mother interfered with their relationship with the father, it could impact on their capacity to trust and form trusting relationships.
I find that the mother is genuinely afraid of the father. Nothing the father said in evidence during the trial would have given the mother any comfort. I accept the submissions by the ICL’s Counsel that despite pleading guilty to assault, the guilty plea cannot be relied upon as an example of the father taking responsibility. The father has not accepted responsibility for his actions. He was given many opportunities during the trial to show insight and to take responsibility for his actions to which he did not do. He deflected, pointed blame at others and went so far as to portray himself as the victim and the mother as manipulating the children and the system. This complete lack of insight and failure to take responsibility for his actions heightens the risk he poses.
The father remained resolutely of the view that the mother had “brainwashed” the children and that the children were lying. The evidence does not support the father’s contentions. This assumes that it is easy for a parent to successfully manipulate a child so that they can convincingly and consistently maintain false narratives. It is not so easy for children to maintain a script. Court Child Experts have the expertise to spot signs of coaching. There can be several indicators including a child using adult language and their tone and demeanour being incongruent with the subject matter they are discussing. The children are clearly aligned with the mother but that is not surprising. The mother has been the consistent primary care giver and care figure in their lives and has been the one always there to provide for their daily physical and emotional needs.
Children are influenced by their parents. This in and of itself is not a bad thing. Part of the responsibilities of parenthood is to be a positive influence and role model.
Given the father’s lack of insight and fixed views, based on the current state of the evidence, forcing the children to see the father even on a supervised basis is likely to be harmful to them.
VIDEO CALLS AND CARDS
The father seeks to have three video calls a week. Three calls is too disruptive and currently I do not think any video calls will benefit the children. It is likely that the calls would be distressing for them as it is likely that the father would pressure the children to change their narrative and deny their lived experiences.
The father also seeks to send cards, letters, and gifts to the children. The mother said in re‑examination that every biological parent has the right to send cards and gifts but because of the father’s behaviour she was not sure that it is the same with respect to video calls. In this regard the mother is mistaken. It is the children who have the rights and parents who have responsibilities.
The concerns the father expressed about being shut out and his absence damaging the children could be seen as primarily focusing on his own needs, his perceived image as a good father and a concern about his perceived parental rights. If the father uses sending gifts and cards in a self‑serving way it could be harmful to the girls and could be an extension of coercive control. The Court Child Expert also observed that the sense she had from the father was that he was quite proprietorial and at the same time denying anything negative and describing them as a happy family.
The Court Child Expert was unable to comment on whether or not sending cards on their birthdays and Christmas would be a good idea. She said that on the surface it does not seem negative but depending on how they see their father it could be upsetting and intrusive for them.
The ICL’s Counsel submitted that the father should be permitted to send cards to the children twice a year on their birthdays and Christmas and that the contents of the cards be restricted to birthday and Christmas wishes only. The ICL’s Counsel submitted that that would not be too onerous on the mother. The mother adopted that position. Helpfully the father’s Counsel referred to Sokghi & Danwar [2022] FedCFamC2F 1654 and the order made by his Honour Judge Turnbull. In order eight, his Honour made an order with respect to sending cards, letters and gifts that is more prescriptive than the ICL’s proposed order. It includes various restraints including with respect to attempting to find out the location of where the children and the mother live and not pressuring the children to spend time. These are useful matters to include in an order of this nature as it makes clear the limited scope of what the father is permitted to write. In Sokghi v Danwar, the order also required the mother to pass on cards, letters and gifts unopened. The father’s Counsel emphasised that an order modelled on Judge Turnball’s order would not place any burden on the mother.
Given the father’s lack of insight and complete failure to take any responsibility for his actions, I am concerned that the cards he sends the children may overstep the restrictions on his communication. I think the mother needs to open the cards before giving them to the children. It would be beneficial for the children if the first time they receive cards from the father, it is done in a therapeutic setting if possible. I will not make an order requiring that, as there are practical considerations including whether or not the mother is able to have the children start counselling before the receipt of the first card. The mother will need to prioritise this, particularly with respect to X’s needs and addressing the burden of feeling like she has to be the protector of her mother and sister.
FAMILY THERAPY
The father does not mention family therapy in his trial affidavit. He does make brief reference to reintegration therapy although he does not expand on what that means.
It was clear when the parties were cross-examined that they have a limited understanding of what family therapy is. The father said he was seeking family therapy so he could have a better relationship with the children. They both said that they thought it was for the betterment of the family. In his orders the father nominated a particular family therapist and referred to reintegration therapy. The father’s Counsel put to the mother that the father seeks an order for reportable family therapy. The mother said her understanding of it is that it is for the purpose of making relations better. She was not sure that it would be a good thing for her and the children to due to the family violence they experienced. That is a reasonable concern for her to have. In my view it is likely that it would lead to further proceedings as the father is unlikely to accept any views expressed by the children that do not accord with his expectations. The mother expressed concern about how family therapy may affect the children and whether they are ready for that.

The mother does not believe that she needs counselling as she received a lot of support from the social workers and organisations she has engaged with and she is doing much better than she was a year ago. The children have not received any counselling. It is important that the mother arranges counselling for them to enable them to process their feelings about the violence they experienced.
The Court Child Expert does not make recommendations about family therapy but talks about therapy for the children. This is very different. The father said he wanted therapy for the whole family as this had been recommended to him and that it was important because he did not want to lose his family. The Court Child Expert said family therapy could benefit all of them to address some of their thoughts and feelings. The purpose of recommending therapy for the children is to provide them with a safe place for them to explore their feelings and wishes.
The ICL includes an order requiring the mother to arrange counselling for the children with someone experienced in family law. That person should also have experience in dealing with family violence. It is important that the children have a safe space to explore their feelings and address their trauma.
I am unable to accept the father’s Counsel’s submissions that the matter is crying out for family therapy and is that this is not a no time case.
AIRPORT WATCHLIST AND PASSPORTS
Both parties seek a watchlist order remain in place until the Court orders its removal. The mother also seeks orders that she be permitted to obtain passports for the children without the father’s consent. There is currently an interim airport watchlist order in place. I will discharge the interim watch list order and make a fresh watchlist order for a period of two years.
The mother seeks the watch list order be extended as she is concerned that the father might retaliate against her and try and take the children to Country C. Both parties have family in Country C.
In his trial affidavit the father claims that the mother has threatened to take the children to Country C and that he will never see the children again. Neither party was cross-examined about the airport watch list order and orders with respect to passports.
In his minute of order, the father sought that the mother deliver the children's passports to the Melbourne Registry. I am not satisfied that such an order is required. There is no evidence to suggest that the mother is thinking of returning to Country C. Her case is that she and the children have settled well into Melbourne and that the children are performing well at their school and that she has a supportive network in place. She is currently working casually and is also studying. The mother should keep the children's passports. As both parents seek the watch list order and given the level of distrust between the parties, I am prepared to make that order. Neither party made any submissions as to the length of time that order should be in place. It is not desirable to have the order in place until the children are 18 unless there are good grounds for that as the experience of the Australian Federal Police is that people forget that the watch list order is in place and turn up at the airport seeking to travel. I will make the watch list order for a period of two years. If there is a basis for it, the parties may apply for an extension at that time.
I will also make the order enabling the mother to obtain a passport for the children without the father's consent. The children have current passports. I do not know when those passports expire. Passports can be a useful form of identification in addition to being used for travel.
CONCLUSION
I accept the mother’s evidence and I am satisfied that the father committed family violence against the mother and the children throughout the relationship which took place in various forms. The family violence was not limited to the road incident. For the most part, the mother’s evidence was consistent and was consistent with someone who has been traumatised by family violence.
I am satisfied that the children would be at an unacceptable risk of harm if they were forced to spend time with the father. This includes spending supervised time due to the risk of emotional and psychological harm. I accept that the orders I am making are drastic as the only communication and direction connection and relationship between the father and children will be the father’s ability to send cards twice a year.
It is appropriate to make final, not interim orders. It is important that the parties appreciate that this does not mean that the orders can never be revisited. Either parent may bring an application in the future due to a change of circumstances. The children have not started counselling. The father has only recently started the men’s behaviour change course. It may be that the father benefits from the course. However, given the father’s lack of insight and inability to be child focused, I am pessimistic about what the father will gain from the course.
I will also make an order that should the father seek counselling and that he be permitted to provide a copy of the Child Impact Report and these reasons to any counsellor. If the father chooses to engage in counselling, he should engage someone who is experienced in family law and family violence and can challenge his current narrative. Engaging in these processes can be confronting and change does not happen overnight.
The children may also want to reach out to the father in the future. If they do, then at that time it may be appropriate for the family to engage in family therapy. Ordering family therapy now would be counterproductive. The children need counselling to deal with their trauma and to process their feelings. The father needs to reflect on these reasons and address the issues of risk.
The father’s Counsel quoted paragraph 45 from Justice Carmody’s decision in W & G [2005] FamCA 617 which is set out below:
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
I do not think this reflects current thinking. Since that case, the Family Law Act has undergone major reforms in 2006 and 2011. Community understanding of family violence has changed significantly since that time although there is more that needs to be done. The Family Law Amendment Act 2023 introduces further amendments due to commence in May 2024 which place even greater emphasis on the importance of ensuring children are safe.
Engaging in family violence is a parenting choice. It reflects poorly on a parent’s parenting capacity and the role modelling they provide to their children. The insidious nature of coercive controlling violence has been receiving greater attention and understanding. The children have the right to a meaningful relationship with both their parents if it is safe for them. On the state of the current evidence, it is not safe for these children to spend any time with the father.
For these reasons I make the orders set out at the beginning of this judgment.

I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 5 March 2024

File number(s):	PAC 179 of 2023
Judgment of:	JUDGE HARLAND
Date of judgment:	5 March 2024
Catchwords:	FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders
Legislation:	Australian Passports Act 2005 (Cth) ss 11 Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 64 , 65D, 68P(3), 68Q, 69ZW Family Law Amendment Act 2023 (Cth)
Cases cited:	Isles & Nelissen [2022] FedCFam1A 97 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Sokghi & Danwar [2022] FedCFamC2F 1654 Waterford & Waterford [2013] FamCA 33 W & G [2005] FamCA 617,
Division:	Division 2 Family Law
Number of paragraphs:	200
Date of hearing:	24, 25, 29 and 30 January 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Burgess
Solicitor for the Applicant:	Taylor Rose
Counsel for the Respondent:	Mr Myles
Solicitor for the Respondent:	Victoria Legal Aid
Counsel for the Independent Children’s Lawyer:	Ms Stavrakakis
Solicitor for the Independent Children’s Lawyer:	CMB Legal

PAC 179 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HIRA Applicant
AND:	MS DIPAK Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	5 MARCH 2024