Hoda & Neman - [2022] FedCFamC2F 943

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoda & Neman [2022] FedCFamC2F 943

File number: PAC 2105 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 22 July 2022

Catchwords: FAMILY LAW – Where the father did not seek time with the child for a period following the child’s birth – The mother is the uncontested resident parent – Where the father now seeks time with the child – Where the father perpetrated physical and sexual assaults upon the mother – Where the father lacks insight as to the impact and seriousness of the acts of family violence he has perpetrated – Where the mother says that the facilitation of time between the child and father would adversely impact upon her parenting capacity – Where the child would be at an unacceptable risk of harm were she to spend time with the father – Orders made for the mother to have sole parental responsibility, the child live with her and spend no time with the father.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 60CG, 65D, 65DA, 65DAA, 65DAC

United Nations Convention on the Rights of the Child art 19

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

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

B & B (1993) FLC 92-357

B & K [2001] FamCA 880

Blanch & Blanch & Crawford (1999) FLC 92-837; [1998] FamCA 1908

Blinko & Blinko [2015] FamCAFC 146

Dieter & Dieter [2007] FamCA 608

Gorman & Huffman & Anor [2016] FamCAFC 174

Helbig & Rowe [2016] FamCAFC 117

Illgen & Yike [2018] FamCA 17

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

M & M (1988) FLC 91-979; [1988] HCA 68

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

R & C [1993] FamCA 62

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Zuen & Lhao [2020] FamCAFC 84

Division: Division 2 Family Law

Number of paragraphs: 258

Date of hearing: 14, 15, 16, 31 March 2022 and 28 April 2022

Place: Parramatta

Counsel for the Applicant: Mr Connor

Solicitor for the Applicant: Hills Family Law Centre

Counsel for the Respondent: Mr Guterres

Solicitor for the Respondent: Kalpaxis Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Francis

Solicitor for the Independent Children's Lawyer: Claremont Legal
ORDERS

PAC 2105 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HODA

Applicant

AND:
MS NEMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

22 JULY 2022

THE COURT ORDERS THAT:
1.All prior parenting Orders with respect to X born in 2018 (“Y”) are discharged.
2.X shall live with the Mother.
3.The Mother have sole parental responsibility of X.
4.X spend no time with the Father.
5.The Father is restrained from approaching within 500 metres of the following locations:
(a)the home of the maternal grandparents;
(b)the residence of the Mother;
(c)any child care facility, school, before or after school care or other school program that X may attend from time to time.

6.The Mother is at liberty to provide a sealed copy of these Orders to any child care facility, school, before or after school care, day care or other school program that X may attend.
7.The appointment of the Independent Children’s Lawyer is discharged.
8.In the event a party or any Independent Children’s Lawyer seeks costs in relation to this application, then within 14 days such party is to file and serve a Minute of Order sought, written submissions of no more than 2 pages and an updating Financial Statement if required.
9.A Responding Minute of Order sought, written submissions of no longer than 2 pages and an updating Financial Statement if required is to be filed within 14 days thereafter.
10.Any such application for costs will be reserved to Chambers.
11.All outstanding applications are otherwise dismissed.

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 Hoda & Neman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION

This matter relates to the parenting arrangements for the child X born in 2018 (“X”) currently aged 4 years and 1 month.
The parties were in a relationship from mid-2017 until June 2018. They separated on the day prior to X’s birth.
It is uncontroversial that the father elected not to spend time with X for the first 12 months of her life. X spent some day only time with the father subsequent to this until January 2021. X has not spent time with the father since January 2021 after an alleged incident of family violence between the parties. On 16 June 2021 Orders were made by the Court after a defended interim hearing that X spend no time with the father pending the final hearing of the matter.
The mother is the uncontested resident parent. The issues in the proceedings are the allocation of parental responsibility and what time, if any, X shall spend with the father.
The mother alleges that the father occasioned serious family violence upon her including the perpetration of physical and sexual assaults. She asserts that X spending any time with the father presents a risk of unacceptable harm of X being exposed to the father’s continued perpetration of family violence. The mother further alleges that X spending time with the father would adversely impact upon her parenting capacity.
The father concedes perpetrating one act of physical violence upon the mother and engaging in coercive and controlling behaviour but submits that this is not a case marred by family violence. He submits that findings of family violence should not in themselves be an impediment to X spending time with him and X’s best interest in having a meaningful relationship with the father should not be diminished to one simple issue as to unacceptable risk. The father asserts that there is no cogent evidence that the mother’s parenting capacity would be impaired should X spend time with the father.
For the reasons that follow the mother shall have sole parental responsibility as X will continue to live with her. It is further found that on balance, it is in X’s best interests for orders to be made that she spend no time with the father.
THE PARTIES’ PROPOSALS
The applicant father seeks orders on a final basis in accordance with the Minute of Order attached to his Case Outline filed 8 March 2022 that, in summary:-
(1)The parties have equal shared parental responsibility for X;
(2)X lives with the mother, provided she lives within the home of the maternal grandparents;
(3)X spends time with the father as agreed and failing agreement on a graduating basis commencing with 2 hours per week supervised by a professional agency and thereafter on a graduated unsupervised basis so that by 1 July 2025 X spends time with the father from Friday afternoon until Monday morning each alternate week, on special occasions and as from 1 July 2026 for 4 days each school holiday period. The father is to be responsible for all professional supervision expenses;
(4)The mother is to continue undertaking her current therapeutic counselling or a substitute;
(5)The father is to complete the Men’s Behaviour Change Program together with a further two (2) parenting courses as nominated by the Independent Children’s Lawyer and provide the mother notification of his completion of these courses;
(6)Each party is to notify the other if X is hospitalised or diagnosed with any long-term health issue; and
(7)Each party is authorised to receive information relating to X’s attendances on medical professionals with the father to be authorised to receive from X’s school the usual school reports and information.
The respondent mother seeks orders on a final basis in accordance with the Minute of Order attached to her Case Outline filed on 7 March 2022 that:-
(1)The mother shall have sole parental responsibility for X;
(2)X shall spend no time and have no communication with the father.
(3)The father is restrained from approaching within 500 metres of the following locations:
(a)the home of the maternal grandparents;
(b)the residence of the mother; and
(c)any child care facility at which X may attend from time to time.
The Independent Children’s Lawyer seeks orders that the mother have sole parental responsibility for X, that X live with the mother and spend no time with the father.
THE EVIDENCE
The father relied on the:-
·Initiating Application filed on 22 April 2021;
·Affidavit of the father filed 9 December 2021;
·Affidavit of Ms B, the paternal grandmother, filed 9 December 2021;
·Affidavit of Mr C, the father’s friend, filed 9 December 2021;
·Affidavit of Mr D, the father’s friend, filed 9 December 2021;
·Notice of Child Abuse, Family Violence or Risk filed 22 April 2021;
·Case Outline filed 8 March 2022;
·the Father’s Minute of Order – being Exhibit F1; and
·documents tendered during the course of the hearing.
The mother relied on the:-
·Amended Response filed 11 June 2021;
·Notice of Child Abuse, Family Violence or Risk filed 24 May 2021;
·Affidavit of the mother filed on 9 December 2021;
·Affidavit of Ms E, the maternal grandmother, filed on 4 March 2022;
·Child Dispute Conference Memorandum dated 31 May 2021;
·Family Report dated 21 December 2021 by Ms F;
·Case Outline filed 7 March 2022 marked as Exhibit M2 including the mother’s Proposed Minute of Order contained therein and marked as Exhibit M3; and
·documents tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the:-
·Family Report of Ms F dated 9 December 2021;
·Case Outline filed 7 March 2021 and marked as Exhibit ICL2;
·the Independent Children Lawyer’s Minute of Order marked as Exhibit ICL3; and
·documents tendered during the course of the hearing.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
THE ISSUES
The father seeks to impose an obligation upon the mother that X shall live with her “provided she lives within the home of the maternal grandparents.”[1] It is unclear as to what the father proposes should the mother no longer reside in the home of the maternal grandparents. It was conceded by the father in cross-examination that if the mother moved, that X would continue to live with her. Counsel for the father did not address this issue in submissions.
[1] Exhibit F1, father’s Minute of Order.
Thus the primary issues for the Court to consider and determine are:-
·The allocation of parental responsibility;
·Whether X living with the mother should be conditional upon her living with the maternal grandmother;
·Whether X is exposed to an unacceptable risk of physical and/or psychological harm should she spend time with the father;
·If it was found that X would be exposed to an unacceptable risk of physical or psychological harm in spending time with the father, whether and how such risks can be mitigated; and
·Would X spending time with the father detrimentally impact on the mother’s parenting capacity to such an extent that it would present an unacceptable risk to X.
X
X resides with the mother, her maternal aunt and maternal grandparents in the home of the maternal grandparents. She is described by the mother as an active and social child. X attends day care 4 times a week and undertakes various activities including swimming lessons and lessons in the G faith. X is meeting her developmental milestones.
THE PARTIES
The father is 23 years of age and resides at the home of his parents. His brother Mr H also spends significant time at the home. He is an unemployed transport worker seeking employment in the industry. He has not re-partnered.
I had the opportunity to carefully listen and observe the father’s oral evidence. He was an inconsistent and unconvincing witness who was concerned to ensure that his oral evidence was consistent with his written evidence and was reluctant to provide answers to questions without the benefit of having his affidavit as a reference. I found him to be evasive and vague at times in his answers. If he was unsure as to what answer presented him in the best light, he would state that he was not sure or could not recall. I found his evidence to lack spontaneity. My impression was that his evidence was rehearsed. I will make specific findings as to factual issues in dispute later in these reasons.
The mother is also aged 23 years. She lives with X, the maternal grandparents and her sister Ms J in the home of the maternal grandparents. She also has a brother, Mr K. The mother’s family including her parents and sister Mr J assist her in caring for X when required. The mother is not currently engaged in paid work outside of the home. At the time of the filing of her Affidavit she had deferred her study for a qualification in education through L School.
The mother has been in a relationship with Mr M since approximately 2019. They do not live together. It is the mother’s evidence that she and Mr M have a loving and healthy relationship; there has been no domestic violence. The mother and X generally spend one night a week overnight at Mr M’s home. He was not a witness in the proceedings.
It is not disputed that the mother was sexually assaulted when she was approximately 8 years old over a 12 month period by her 3 older male cousins. She did not tell anyone at the time that this was occurring. She told her mother when she was approximately 18 years old but did not wish to make a complaint to the Police. The father tendered into evidence the mother’s medical records that included an opinion of Dr N dated 26 February 2016 that the mother was suffering from anxiety with panic attacks.[2] The father agreed that the mother has issues with her self-esteem, but does not believe that this was related to her sexual abuse as a child.
[2] Exhibit F24.
The father deposes that during the course of the relationship the mother would “wake in the night, shaking and sweating and would wake me up for solace. She would also experience regular anxiety attacks and difficulty with her breathing which would also occur mostly during the night.”[3] It was the father’s oral evidence that the mother suffered from high anxiety and hyper vigilance. Medical records tendered by the mother record that she suffers from anxiety, stress and panic attacks and I find this is so. She is seeing a clinical psychologist, Ms O at P Centre on a regular basis.
[3] Father’s affidavit filed 9 December 2021, paragraph 12.
I did not find a large proportion of the mother’s cross-examination probative. I formed the view that she found the experience of giving oral evidence to be upsetting and she answered questions in a manner to conclude her questioning as quickly as possible. She did not want to engage with the questions put to her by Counsel for the father.
THE WITNESSES
The paternal grandmother was cross-examined. I found her to be at times evasive in answering questions that would not assist her son’s case. Her answers were at times non-responsive and were concerned with providing self-justifications for her past actions. Her evidence did little to advance the father’s case.
Mr C, a friend of the father, gave evidence. His understanding of his purpose in providing an affidavit in the proceedings was that it was “a character thing.”[4] He did not assist the father’s case. His evidence was that the father is not violent, despite his concession that the father had told him prior to his preparation of his affidavit that he had smacked the mother on the face. This was not included in his affidavit however, because he “knew it was disclosed already.”[5] He conceded that in those circumstances his affidavit was “somewhat” misleading. Mr C reiterated his view, however, that despite knowing that the father had previously assaulted the mother that “I don’t think he’s a violent person”[6] and “That doesn’t mean he’s a violent person.”[7] I place minimal weight on Mr C’s evidence.
[4] Transcript 15 March 2022, p.142 line 17.
[5] Transcript 15 March 2022, p.144 line 3.
[6] Transcript 15 March 2022, p.144 line 32.
[7] Transcript 15 March 2022, p.144 line 36.
The father’s witness Mr D was not required for the purposes of cross-examination. The contents of his affidavit does not assist me in determining the issues in this matter and I place no weight on it.
I found the maternal grandmother in cross-examination to be cautious and careful in her answers. This is not a criticism. I found that she was keen to ensure that she answered the questions in a considered manner. She was a forthright witness.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms F, a Court Child Expert of some 11 years experience (“the Court Child Expert”). She has tertiary qualifications including a Bachelor in Applied Psychology (Honours) and a PG Diploma in Applied Psychology. The Court Child Expert has had extensive experience in social care and child protection and has undertaken training in domestic violence informed practice. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the Court.
The Court Child Expert interviewed each of the parties on separate occasions in September 2021 via video as a result of the COVID 19 pandemic. A further telephone call with each of the parties was conducted on 8 December 2021. X was not directly involved in the assessment process due to the COVID 19 pandemic. The Court Child Expert opined that she did not consider this to be a significant limitation to the assessment in light of the nature of the dispute between the parties and the parenting arrangements for X to date; particularly the limited time she has spent with the father. Neither of the parties nor the Independent Children’s Lawyer submitted that this was a limitation to the veracity of her report and I accept that it was not. The Court Child Expert had access to and read a wide range of material including material produced under subpoena.
The father conceded during the course of cross-examination that there were no inaccuracies as to the reporting of what the father had said to Court Child Expert. He did however take issue with the recommendations contained in the Family Report.

The mother did not take issue with the contents of the Family Report.
The Court Child Expert broadly recommended in the Family Report that:-
·the mother have sole parental responsibility for X;
·X live with the Mother; and
·X spend no time with the father.
The Court Child Expert opined however that if the Court found that the father has made significant and substantial changes to address his choice to perpetrate family violence against the mother and X is determined therefore not to be at risk in the father’s care, consideration could be given to X spending time with the father initially on a supervised basis for periods of up to 2 hours per week and then gradually moving to one day per fortnight.
The Court Child Expert attended Court and was cross-examined. Prior to such cross-examination she had read the trial affidavit of each of the parties and that of the maternal grandmother. Without objection I indicated that if she was asked any questions as to the evidence of other supporting witnesses then the relevant affidavit could then be read by her. This was not required.
I found the Court Child Expert’s oral evidence to be clear, thoughtful and reasoned. She was an impressive expert witness. Having read the updating material she affirmed her continued support of her written recommendations as contained within the Family Report. Whilst ultimately it is a matter for the Court to review the evidence and make findings as to factual issues significantly in dispute, the Court Child Expert’s recommendations were significantly grounded on the father’s own concessions as to his behaviour. I give significant weight to her report and oral evidence which is discussed in more detail later in these reasons.
BACKGROUND
The mother and father were both born in 1998 and are currently 23 years of age.
The parties’ relationship commenced in mid-2017. The father contends that he moved into the mother’s home where she lived with her parents and sister in 2017. The mother asserts the parties never lived together with each living at their respective parents’ homes. Much time was spent by the father during the course of the hearing in attempting to prove that he lived or spent significant time at the mother’s home. In light of the mother’s and paternal grandmother’s evidence that the paternal grandparents were vocal in their disapproval of the relationship, which I accept, I am satisfied that the father spent a substantial amount of time with the mother at the home of the maternal grandparents. I am not satisfied the parties “lived together” in a formal sense in circumstances of both the paternal grandmother and Mr C in their evidence referring to the father as “staying” at the mother’s house. In any event, I find that little turns on this.
The mother alleges the father physically assaulted her in August 2017. She further alleges that in September 2017 he manipulated her into having sexual intercourse with him. This will be addressed later in these reasons.
The mother alleges the father sexually assaulted her on 2 occasions in October 2017. This will be addressed later in these reasons.
On 18 October 2017 the mother messaged the father that she might be pregnant and they discussed her taking a pregnancy test.
The maternal grandmother deposes that the father admitted in November 2017 of having caused the bruising she observed on the mother’s arm. This will be addressed later in these reasons.
The mother and her family visited the Country Q from in late 2017 to early 2018. The father asserts that during this time he told the mother he wanted to end the relationship due to her mental health issues and the mother responded by telling him she was pregnant.
Upon the mother’s return from the Country Q she undertook a pregnancy test which was not conclusive.
The mother asserts the father choked her in January 2018. This will be addressed later in these reasons.
In February 2018 the mother deposes the father occasioned a physical assault upon her by pulling a car door into her pelvic area 3 times. This will be addressed later in these reasons.
The father asserts that the mother told him that she took an “abortion pill” in 2018.
On 13 June 2018 the mother had a telephone conversation with the father’s brother Mr H and advised him that the father was taking illicit substances. Mr H told the paternal grandparents of this conversation and the father thereafter ended the relationship with the mother.
The mother attended at the father’s home in the early morning on 14 June 2018. The mother alleges that on this day the father occasioned physical assaults upon her on two separate occasions throughout the course of the day. The father conceded one physical assault upon the mother. This will be addressed later in these reasons.
The parties’ child X was born later this day at the mother’s home. Subsequent to X’s birth the mother and X attended Suburb R hospital. The father was advised of the birth by the paternal grandfather. The father did not at first believe this and telephoned the hospital for verification.
The parties’ knowledge of the mother’s pregnancy was a source of significant focus during the trial. The father asserts that he did not know that the mother was pregnant prior to giving birth to X. I accept and find that this was the case.
The mother’s written evidence as to her knowledge of her pregnancy was at times inconsistent with her oral evidence. She appears to be critical in her affidavit material that the father was not aware of her pregnancy. After considering all of the evidence I am satisfied that on balance it is possible that the mother suspected she was pregnant. Having regard to later findings I will make, I am further satisfied that it is possible that the mother did not tell anyone of her suspicions as she was scared and feeling vulnerable.
On the same day of X’s birth, the mother received a text message from the paternal grandmother which said “You did this to destroy my son’s life, the person you claimed to love. Is this love? You damaged your life. My son never wants to have anything to do with you and your baby.”[8] The father thereafter elected not to see X for one year.
[8] Mother’s affidavit filed 9 December 2021, Exhibit E.
The parties met by arrangement on 13 July 2018 at which time the father refused to sign an application for X to obtain a passport. The issue of the signing of a passport for X will be discussed later in these reasons.
On 13 July 2018 the mother attended upon the Suburb S Police and a provisional Apprehended Domestic Violence Order for the protection of the mother and restricting the behaviour of the father was made. A final Apprehended Domestic Violence Order for a period of 12 months was issued for the mother’s protection on 31 July 2018.
In January 2019 the mother commenced fortnightly sessions with a psychologist at P Centre, Suburb S.
The mother’s application to extend the Apprehended Domestic Violence Order of 31 July 2018 restricting the behaviour of the father was dismissed on 13 August 2019.
The parties started seeing more of each other again in October 2019.
X first spent time with the father on 14 February 2020. This occurred at the apartment of the father’s brother with the mother present. The mother contends that the father said to her “I can’t do this”;[9] the father contends that he and X had a bond “straight away”[10] although it was conceded in cross-examination by the father that the bond was from his perspective and not X’s.
[9] Mother’s affidavit filed 9 December 2021, paragraph 62.
[10] Father’s affidavit filed 9 December 2021, paragraph 52.
There is a dispute as to the time X has spent with the father subsequent to February 2020. The father alleges that at this time the parties reconciled and he began seeing X three or four times a week. The mother conceded in cross-examination that from February 2020 to January 2021 X saw the father on approximately 20 occasions. It appears that on only one occasion did X see the father without the presence of the mother, being on 5 January 2021 when X spent between three to six hours at Park T with the father unsupervised. The father arranged for several of his friends to attend on this date to meet X.
X saw her paternal grandmother on one occasion only at Oval U on 6 January 2021. The mother was present on this occasion.
X saw the father’s brother Mr H on one occasion only on 10 January 2021. The mother was present on this occasion.
The mother alleges that on 9 January 2021 the father assaulted her by grabbing her arm, leaving a bruise. This will be discussed further later in these reasons. X has not seen the father since this time.
On 13 February 2021, the father sent a text message to the mother “It’s been two weeks. You have till Wednesday to contact me, otherwise I’ll be handling this situation with my own hands.”[11]
[11] Father’s affidavit filed 9 December 2021, Exhibit H-4.
On 13 February 2021 the mother attended the Police station at Suburb S. On 14 February 2021, a further provisional Apprehended Domestic Violence Order was made for the protection of the mother and restricting the behaviour of the father. The father was charged with common assault arising from the alleged assault upon the mother on 9 January 2021.
The father initiated these proceedings on 22 April 2021 seeking interim and final parenting orders with respect to X.
In June 2021, shortly prior the interim hearing in the matter, the father attended the Suburb S Police Station and alleged that the mother had sexually assaulted him in May 2020.
On 9 June 2021 the criminal assault charge against the father was withdrawn. A final Apprehended Domestic Violence Order was made by consent and on a without admissions basis restricting the behaviour of the father and for the protection of the mother for a period of for 2 years in the standard terms.
Orders were made by this Court after a defended interim hearing on 16 June 2021 that X live with the mother and spend no time with the father, together with Orders for the father to undergo hair drug testing.
On 9 September 2021 the father provided a hair sample for the purpose of a hair drug test and on 20 September 2021 produced a negative result.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the Court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration. This is confirmed in section 65DAA.
A child’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act.
The objects of the Act as set out in section 60B is to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”). Article 19 of the Convention on the Rights of the Child requires parties to the Convention to take steps, including through “judicial involvement”, to:
…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence. Having regard to the issues in this matter considerations of protecting X from physical and emotional harm loom large.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between X and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518. This is an important consideration in this case given the length of time it has been since X spent time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119] adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to X in the circumstances of such a relationship.
The Full Court continued in McCall & Clark (2009) FLC 93-405, 83,476 that:
[122]…No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The father’s proposal that the parties share parental responsibility and spend time with the father on a graduating basis so that by July 2025 X spends time with him on alternate weekends and during school holidays would mean that X would share a meaningful relationship with both of the parties.
The proposal of the mother and the Independent Children’s Lawyer that the mother have sole parental responsibility and spend no time with the father would mean that X would have no relationship with the father.
Family Violence
In these proceedings there are a number of specific contentions about matters relating to X’s best interests that depend in part upon findings as to the family violence including the allocation of parental responsibility. The standard of proof with respect to such findings is the balance of probabilities: see section 140 of the Evidence Act 1995 (Cth). Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268, 282 at [88].
The mother alleges that the father perpetrated serious family violence upon her both during the course of the parties’ relationship and post separation, with such violence including sexual and physical assaults, verbal abuse and coercive and controlling behaviour.
It is the father’s evidence that all sexual encounters between the parties have been consensual. The father denies that he has occasioned physical violence upon the mother save for one occasion. He concedes that he engaged in some forms of controlling behaviour.
Family violence is defined in s 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence which includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
…
(i) preventing the family member from making or keeping connections with his or her family, friends or culture…
Such behaviour must still meet the definition as contained within s 4AB(1).
Justice Gill analysed the terms “coerce and control” in Illgen & Yike [2018] FamCA 17 at [123]-[125] as follows:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Section 4AB(3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating (2019) FLC 93-894. As the Full Court stated in Amador & Amador (2009) 43 Fam LR 268, 280:
[79]…To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
…
[81]The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.

The father’s evidence in response to the mother’s allegations as to verbal, psychological and physical abuse shifted significantly during the course of his written and oral evidence.
The father conceded during his interviews with the Court Child Expert on 7 September 2021 and 8 December 2021 that:-
·He slapped the mother on one occasion, being on the day that X was born. Subsequent to this assault the father said to the mother: “I was dumb. I couldn’t control myself. But you have to see it from my eyes as well.”[12] The father concedes that he was trying to push the blame for his assaulting the mother onto her.
·He perpetrated some coercive and controlling behaviour by giving the mother “the silent treatment” and “telling her not to talk to certain guys.”[13]
·He occasioned verbal abuse, although this was mutual, including name calling, swearing, and “being disrespectful.”[14]
[12] Transcript 14 March 2022, p.103 lines 17-22.
[13] Family Report dated 9 December 2021, paragraph 35.
[14] Family Report dated 9 December 2021, paragraph 34.
The father attributed this behaviour to his difficulty in “managing his emotions”.
The father concedes in his written evidence that he slapped the mother on 14 June 2018.
At the commencement of his oral evidence it was the father’s evidence that he was not a violent person; that he was not the type of person to act violently other than on the one occasion where he slapped the mother. He otherwise denied all other allegations of physical and sexual assault and allegations that he had been threatening or intimidating towards the mother. He conceded that he had been verbally abusive towards the mother by belittling her and swearing and using “foul language.”[15] He conceded that he has been coercive and controlling, but only in relation to not allowing the mother talk to her ex-boyfriends.
[15] Transcript 14 March 2022, p.36 lines 6-10.
By the conclusion of his oral evidence, the father had conceded that:
·He told the mother not to talk to certain males as he felt jealous and threatened.
·He would get “upset” if the mother spoke to other men, but “ not angry.”[16]
[16] Transcript 14 March 2022, p.45 lines 21-28.
·He was angry when he slapped the mother on the day of X’s birth.
·He would tell the mother to wear white nail polish, but not what clothes to wear.
·He sent text messages to the mother that included saying to her:
fucking stupid bitch
and
You had said that you would come, you dumb bitch.[17]
[17] Transcript 14 March 2022, p.47 lines 19-21.
He could not answer whether he knew this was abusive or problematic at the time he sent it, as he “didn’t think much of it back then.”[18]
[18] Transcript 14 March 2022, p.48 lines 15-18.
·That he has called the mother a “ slut.”[19]
[19] Transcript 14 March 2022, p.47 line 3.
·That on 5 May 2018 there was a dispute between the parties and during the course of various text messages on this day the father sent these texts to the mother:[20]
[20] Transcript 14 March 2022, p.51 lines 4 – 24.
The next time you fuck up, I’m leaving you for a week.
I don’t even want you. Why would I come back to a whiny little girl who makes me angry non-stop with her shit.
The father agreed that he was telling the mother that it was the mother’s fault and that he would punish her by leaving her for a week.
I’m sick and tired of the way you are just like why everyone else has left you including your friends because they’re sick of you and the way you are and I don’t think you have control over the way you are.[21]
[21] Transcript 14 March 2022, p.51 line 45 to p.52 line 5.
The father conceded that he was belittling and shaming the mother; trying to undermine her self-esteem and her relationships with other people. He admitted that he was trying to make the mother feel responsible for his anger and suggesting to her that she has no one else other than him.
Don’t fuck around with something that makes you happy. If someone makes you happy, you should try and make them happy as well. [22]
[22] Transcript 14 March 2022, p.52 lines 34-39.
The father conceded that at that time it was his belief that it was the mother’s job to make him happy.
·That on 5 May 2018 he sent the mother a text message:
You’re probably the worst girlfriend anyone would ever ask for. Now, fuck off.[23]
[23] Transcript 14 March 2022, p.53 line 45 to p.54 line 23.
The father conceded that this was an attack on the mother’s self-esteem in circumstances where she has issues with her self-esteem.
·That he sent the mother a text message:
You’re pure evil and nobody is ever going to love you for the way you are.[24]
The father again conceded that this was an attack on the mother’s self-esteem.
·That on 13 February 2021 he sent the mother a text message:
It’s been two weeks. You have till Wednesday to contact me, otherwise I’ll be handling this situation with my own hands.[25]
Whilst the father now accepts that this message is a threatening message, it did not “cross his mind” at the time that this message would be perceived as threatening by the mother. I accept that the mother would have perceived this message as threatening.
[24] Transcript 14 March 2022, p.54 line 46 to p.55 line 3.
[25] Father’s affidavit filed 9 December 2021, Exhibit CS-4.
August 2017
The mother contends that during the early stages of the relationship and more particularly in or around August 2017, the father would often push and shove her especially when she refused to have sexual intercourse with him. On one occasion, the mother contends that after telling the father that she would not be intimate with him, he said: “What's going on, I just fucking want to have something with you, you [frigid].”[26] The mother alleges the father then said words to the effect of: “Fuck off, just fuck off” whilst shoving the mother off the bed causing her to fall to the ground and then out of his bedroom door.[27] I cannot make a safe finding in circumstances where this allegation was not put to the father in cross-examination.
[26] Mother’s affidavit filed 9 December 2021, paragraph 16.
[27] Mother’s affidavit filed 9 December 2021, paragraph 16.
September 2017
The mother contends that in or around September 2017, the father manipulated her into having sexual intercourse with him and said amongst other things “If you love me, you’ll do it” and “if you want this relationship, you'll do it.”[28] Both parties were 19 years of age at the time. The father denies that there was ever an occasion the parties engaged in non-consensual sexual relations. It was submitted on behalf of the father that the mother conceded in cross-examination that sexual relations between the parties were “entirely consensual.” I do not accept that this was the mother’s oral evidence.
[28] Mother’s affidavit filed 9 December 2021, paragraph 12.
The highest concession the mother makes is that the parties’ first sexual encounter was consensual and that she is not asserting that all of the parties’ sexual encounters were non-consensual. She denied that all of the sexual encounters between the parties was consensual.
I accept that, in hindsight, the mother now feels that she was manipulated by the father to engage in sexual relations with him, but cannot on the evidence make a safe positive finding that this was an act of family violence as defined in the Act.
October 2017: alleged sexual assaults
It is the mother’s evidence that in approximately October 2017 she had all four of her wisdom teeth removed. Upon coming home she was in immense pain and was taking Endone for pain relief; she was very drowsy and lethargic during this time. The mother deposes that she and the father were in bed the night she came home from the dentist and at approximately 1:00 am the father got on top of her. The mother said to the father words the effect of “I’m in a lot of pain, I just want to sleep”[29] however the father ignored this, put her on her back and inserted his penis into her vagina without her consent. The mother deposes that she was very drowsy at the time but she remembers the pain she felt when the father “shoved himself inside of me as it caused my whole body to shake.”[30] She began telling the father to get off her, however the father ignored this request and said to her “it’s okay, just let me cum”. The mother replied “no, I don't want to just get off.”[31] The mother deposes that she did not understand what was happening during the incident as she was not completely conscious.
[29] Mother’s affidavit filed 9 December 2021, paragraph 13.
[30] Mother’s affidavit filed 9 December 2021, paragraph 13.
[31] Mother’s affidavit filed 9 December 2021, paragraph 13.
The mother alleges that the day after the above incident upon waking the father requested that the mother perform oral sex on him. The mother refused by saying: “No, I’m not feeling well”[32] and the parties had a conversation to the following effect:
Father: Just suck it.
Mother: I can’t open my mouth.[33]
[32] Mother’s affidavit filed 9 December 2021, paragraph 14.
[33] Mother’s affidavit filed 9 December 2021, paragraph 14.
The mother alleges the father then proceeded to insert his penis into her mouth despite her mouth having blood and gauze in it and it being swollen. The mother deposes that she then stayed still and let the father insert his penis into her mouth.
During the course of cross-examination the father denied that any sexual activities took place at the time the mother had her wisdom teeth removed. He stated that it was not possible that they had sex at that time, and was certain “Because I exactly remember that time.”[34] It is the father’s assertion that the mother has just invented this to improve the prospects of her case.
[34] Transcript 14 March 2022, p.84 line 19.
Whilst Counsel for the father during the course of cross-examination referred to paragraph 13 of the mother's affidavit which sets out this allegation, it was not specifically put to the mother that the first incident of non-consensual vaginal sex did not occur. A general question was put to the mother which at the first instance was time referenced, but then became very generalised as follows:
[COUNSEL FOR THE FATHER] Now, I’ve never – I asked you the question generally but because it comes up in the early stages of the relationship I’m going to ask you a question specifically or put to you that Mr Hoda in or around the time you allege at the commencement of the relationship or thereabouts Mr Hoda never raped you?
[THE MOTHER] What’s the question? Did he never - - -
[COUNSEL FOR THE FATHER] I’m putting to you that Mr Hoda never raped you, as you allege?
[THE MOTHER] He did.[35]
[35] Transcript 15 March 2022, p.174 lines 1-7.
It was specifically put to the mother that the parties engaged in consensual oral sex on the day after she had come home from the dentist. The underlying foundation for this question contradicts the father’s evidence that no sex occurred during this time; consensual or otherwise. The mother firmly and clearly denied that the act was consensual.
Medical records tendered by the father from V Medical Centre report that the mother underwent surgical removal of four molars on 4 October 2017. The mother’s affidavit evidence was detailed and specific. In the circumstances of the contradictory presentation of the father’s case as recorded above and having had the opportunity to carefully observe the mother’s oral evidence with respect to this allegation where she remained firm and unshaken I am satisfied that on balance the father occasioned the two sexual assaults upon the mother as alleged by her in October 2017.
November 2017: Bruising on the Mother’s Arm
It is the maternal grandmother’s evidence that in November 2017 she saw fingerprint bruises on the mother’s arm and the father admitted to her that they were caused by him grabbing her arm. This alleged incident was not in the mother’s affidavit. The mother was not cross-examined as to this incident.
It was put to the maternal grandmother that the father did not say this. She was confident and unequivocal in her answer that he had. It was not put to the maternal grandmother that she had not in fact observed bruising on the mother’s arm. Whilst it was submitted on behalf of the father that I should give limited weight to the maternal grandmother’s evidence as it was filed late and they were embarrassed by it, no application was made for an adjournment nor was an application made for the father to give any oral evidence in reply. I therefore reject this submission.
I found the paternal grandmother to be a credible witness. On balance I find that the paternal grandmother observed bruising on the mother’s arm in November 2017 as alleged by her. I find that the father admitted to her that he had caused the bruising. No other explanation has been proffered by the father as to the origins of such bruising. On balance I find that the father grabbed the mother’s arm in November 2017 causing her bruising, thereby perpetrating a further act of family violence upon her.
January 2018: Non-lethal strangulation
The mother contends that in or around January 2018, she joked to the father “You’re getting a bit tubby there.” [36] The father became angry, grabbed her from her neck and pinned her against the bathroom door and choked her with two hands for “what felt like about a minute and I could not breathe for about 20 seconds because Mr Hoda’ hands were blocking and applying pressure to my windpipe.”[37]
[36] Mother’s affidavit filed 9 December 2021, paragraph 24.
[37] Mother’s affidavit filed 9 December 2021, paragraph 24.
The mother contends she did not report this incident to Police. In cross-examination the mother stated that she could not recall specifically when this incident occurred, other than it occurred “when we were dating the first time, not the other times we have had contact.”[38] She was unequivocal that what she asserted was correct.
[38] Transcript 16 March 2022, p.266 lines 29-34.
In cross-examination the father said he does not recall the mother ever telling him that he was getting tubby. He asserted that the incident as deposed by the mother “definitely did not happen” and that the mother has made it up.
Having regard to the specificity of the circumstances surrounding this incident as deposed to by the mother and having had the opportunity to observe her unequivocal evidence in cross-examination I am satisfied on balance that this assault occurred as the mother alleged.
February 2018: The Car Door Incident
The mother contends that in or around February 2018, the father pulled his car door into her pelvic muscle three times until she fell to the ground. The mother contends she had difficulty toileting for approximately three to five days following this incident. The mother did not report the incident to a doctor.
The father contends that the incident was an accident, the mother appeared out of nowhere and the slope of the driveway increased the force of the door closing on the mother, however he did not intend to close the door on the mother.
It was put to the mother in cross-examination that following the alleged assault on 25 February 2018 she sent loving texts to the father; the implication being perhaps that therefore the alleged assault did not occur. The Court Child Expert in cross-examination agreed that loving text messages being sent after an assault occurred could be indicative of a dynamic in the relationship, and that in relationships domestic violence can for both the victim and the perpetrator be viewed as a normal pattern of behaviour.
Again during the course of this cross-examination the father did not want to answer questions on this topic until he saw his affidavit.
[COUNSEL FOR THE MOTHER] Well, did she say anything to you about leaving her home or not?
[THE FATHER] No, I can’t – I can’t recall. Sorry, what paragraph is this?
[COUNSEL FOR THE MOTHER] No, I’m not taking you to a paragraph. I’m asking whether you can recall this incident, firstly?
[THE FATHER] Mmm.
[COUNSEL FOR THE MOTHER] So is your evidence as you sit there today that you can’t recall what she was saying – what it is that she had said to you on that occasion?
[THE FATHER] I would like to look at the paragraph, please.
[COUNSEL FOR THE MOTHER] Well, that’s not the way it works, Mr Hoda?
[THE FATHER] okay.
[COUNSEL FOR THE MOTHER] I’m asking you whether you can recall what she had said to you?
[THE FATHER] I can’t recall.[39]
[39] Transcript 14 March 2022, p.58 lines 34-46.
The father then conceded that as he was leaving the house the mother was asking him to not leave. He asserted that he did not see the mother following him, that she asked him to stay only inside the house, that he did not know she had followed him and she “came out of nowhere….She threw herself in between the car door” as she was trying to stop the door from closing.[40] He asserted that he did not know that the mother was standing there when he went to shut the door as “I would not have pulled the door if I knew she was there.”[41] He became frustrated with the mother when she began to cry and would not go to a medical centre as he felt she was putting on an act.
[40] Transcript 14 March 2022, p.60 lines 18-19, 30-31.
[41] Transcript 14 March 2022, p.60 lines 6-7.
I find the father’s version of events inherently unbelievable. The veracity of his account is not assisted by his not being able to remember the event until he had read to him parts of his affidavit evidence with respect to the incident. I do not accept the father’s assertion that he did not hear the mother follow him out to the car. I do not accept that he would not have been able to see the mother standing there before he shut the door on her. I accept and find that on balance this incident occurred as alleged by the mother.
2018: X’s Birth
In 2018 the mother told the father’s brother, Mr H, that she was worried about the father’s drug use and Mr H then told the paternal grandparents. The father was angry at the mother for this and after sending the mother a text message he blocked her number. The parties agree that the father ended the relationship at this time; although the mother did not accept it.
The mother drove to the father’s house early the next morning and attempted to persuade the father to not end the relationship. From this time onwards the parties’ evidence as to the events of this date differ markedly.
The father deposes that he woke up to find the mother standing next to his bed and she then asked him to not break up with her. He deposes that he said words to the effect of: “Ms Neman, we are broken up. Please don’t come here anymore” and the mother then left the house.[42] He asserts that even though the mother had told the father’s brother that he was taking drugs, he was not angry, he was upset with her; he was very civil to the mother at this time. He then deposes that: “I was worried about what she would do as she had threatened to commit suicide in the past and she had left my home upset.”[43]
[42] Father’s affidavit filed 9 December 2021, paragraph 29.
[43] Father’s affidavit filed 9 December 2021, paragraph 29.
The father’s affidavit evidence then states “When I checked Ms Neman’s location….I saw that she had stopped in the neighbouring suburb of Suburb W. I was concerned and curious as to why she would stop there and decided to drive to her location.”[44] Upon his arrival he observed the mother sitting in her car with her ex-boyfriend Mr AG. He drove up to the mother’s car and looked at them and they stared back. Upon leaving, he noticed the mother’s car was following him. Both he and the mother parked at Oval Z and got out of their respective cars. The father concedes that whilst at the park he was feeling upset after seeing the mother with her ex-partner and “completely overwhelmed with emotion” he slapped her on the face.[45] The mother’s nose thereafter began bleeding. The father says this bleeding “may have been caused by the slap but Ms Neman often suffers from spontaneous nose bleeds.”[46]
[44] Father’s affidavit filed 9 December 2021, paragraph 31.
[45] Father’s affidavit filed 9 December 2021, paragraph 31.
[46] Father’s affidavit filed 9 December 2021, paragraph 31.

The father drove the mother back to his house and assisted with her nosebleed. The father deposes that the mother “wanted to be intimate with me but I refused and told her to go home.”[47] The mother advised the father she could not drive as she had severe back pain and was not feeling well. The father refused to drive her home and arranged for the paternal grandfather to do so.
[47] Father’s affidavit filed 9 December 2021, paragraph 32.
The mother’s affidavit evidence is that she arrived at the father’s home at approximately 6:00am. She had been experiencing chronic back pain from about 4:00 am that morning and had gone to the father’s home for comfort. The paternal grandfather let her into the home. She went into the father’s room and they had a conversation which included the father saying to her “I fucking hate you. I despise you. Why the fuck are you here? Get the fuck out of my house!”[48] The mother got undressed to her underwear and got into the bed with the father after he told her to whereupon he whispered to her “I fucking despise you, you stupid bitch.”[49] The mother got out of bed and left the room for a while to wait for the father to cool off. Upon returning the following conversation took place:
Father: I can’t believe you told my parents
Mother: They needed to know the truth. You need to be honest with them about whether you have a problem.
Father: I’ll walk you outside and then get the fuck out of my house.[50]
[48] Mother’s affidavit filed 9 December 2021, paragraph 32.
[49] Mother’s affidavit filed 9 December 2021, paragraph 32.
[50] Mother’s affidavit filed 9 December 2021, paragraph 33.
The mother contends that when she got to the top of the stairs to leave, the father pushed her down the first part of the flight of stairs being approximately six or seven steps. She landed at the break of the stairs and curled into a ball. She then felt the father push her further down the stairs with either his hand or foot and said “Get the fuck out of my house”.[51] The mother ran away to hide. In cross-examination she said that at this time she felt “distressed, highly anxious, alone, alone, alienated and misplaced”.[52] She then said to the father: “Please don’t hurt me. I’ll leave, just please don’t hurt me.”[53] The father then pushed her out the front door and the mother left.
[51] Mother’s affidavit filed 9 December 2021, paragraph 33.
[52] Transcript 16 March 2022, p.308 line 47.
[53] Mother’s affidavit filed 9 December 2021, paragraph 33.
The mother then drove to her friend “Mr Y’s” house at approximately 2:00 pm and they sat in the mother’s car in the driveway. The mother observed the father drive up next to them and he said to Mr Y words to the effect of “I’m going to punch you in the face”.[54] In cross-examination the mother’s evidence was that the father and Mr Y got into an argument and the mother told Mr Y to go inside, as he was going to get hurt. The father said to the mother “Follow me, or else!”[55] The mother complied and the parties drove to Oval Z in Suburb AB.
[54] Mother’s affidavit filed 9 December 2021, paragraph 35.
[55] Mother’s affidavit filed 9 December 2021, paragraph 35.
The mother contends the father said to her “Why would you do that to me? I could just fucking hit you right now.”[56] The mother responded “Please don’t hurt me. I’m pregnant.”[57] The mother observed the father to look angry and she said “I’m joking.”[58] The mother contends that the father punched her in the face with such force that her mouth and nose started bleeding. She fell to the ground and could taste blood in her mouth. She reported to the Court Child Expert that the punch to the face connected with her nose and cheek.
[56] Mother’s affidavit filed 9 December 2021, paragraph 36.
[57] Mother’s affidavit filed 9 December 2021, paragraph 36.
[58] Mother’s affidavit filed 9 December 2021, paragraph 36.
The father then said to the mother “Smile, bitch. Look at me. I’m going to shame you and show everyone what kind of person you are” and commenced taking photographs of the mother.[59] The mother told the father she needed to go to the doctor or hospital. The father pulled the mother by the hair to the car and drove back to the paternal grandparents’ house where the paternal grandfather observed the mother’s mouth to be bleeding. The father told the mother to have a shower and he bought her clean clothes to wear as the grey jumper she was wearing had blood all over it. The paternal grandfather then drove the mother to 500 metres away from her home and the mother walked the rest of the way.
[59] Mother’s affidavit filed 9 December 2021, paragraph 37.
The mother gave birth to the parties’ child later that day.
The mother was clear and unequivocal in her cross-examination as to this day. She clearly stated that the father uppercut her; that “a lot more force was used than a slap, to cause my nose to bleed.”[60] She stated that she was not confused as to whether it was an uppercut or a slap.
[60] Transcript 16 March 2022, p.243 lines 37-39.
I find a significant proportion of the father’s evidence with respect to this incident inherently unbelievable. I do not accept that his interactions with the mother upon her attending his home early in the morning after she had disclosed his drug usage to his family would have been civil. I accept and find that the mother’s evidence that he was angry and swore at her and told her to get out of the house more probable.
The father conceded in the witness box that there were more events that occurred on this day than deposed in his affidavit. He could not provide an explanation. He conceded that the mother laid on the bed, but did not concede she had taken off her clothes down to her underwear and bra. He denied telling her to “get the fuck out of my house, you stupid bitch” even though he conceded that that is the sort of thing he would say when he was angry.[61] I accept and find that it is more probable that this occurred.
[61] Transcript 14 March 2022, p.70 lines 43-44.
In cross-examination the father did not accept that the mother was distressed when she left, as he said that he was in his bed and could not see. It was only after he was told his affidavit stated that the mother was upset that the father then conceded that the mother was upset. His oral evidence was that, even though he was concerned that she might self-harm, she was not crying, he only knew she was upset as she was frowning. I find that the father was downplaying the level of distress shown by the mother at this time.
I do not accept the father’s evidence as to why he followed the mother through tracking the whereabouts of her car. His evidence was, although she was only frowning, he was worried that she might self-harm and so he followed her. His evidence was then that he was concerned that as she was on her “L plates” by herself that she might have crashed.
I do not accept that the reason for the father following the mother on this day was because he was concerned about her. As conceded in cross-examination, he did not call the mother, an ambulance or the police. The father himself then conceded later in cross-examination that he looked at the tracking app because he wanted to know where the mother was going. He conceded that he was “concerned and curious” that she had stopped in Suburb W, a neighbouring suburb. He conceded that he was curious as to who she was speaking to. Importantly:
[COUNSEL FOR THE MOTHER] So even though you had just broken up with her, you told her to get out of your house, you didn’t want to see her, you still had to know who she was talking to; correct?
[THE FATHER] Yes.[62]
[62] Transcript 14 March 2022, p.75 lines 28-30.
The father conceded that, rather than leaving when he saw the mother was in the car with an ex-partner as he would then have known that she was safe, he drove up next to the car to show the mother than he had seen her. He conceded that he stopped at the park to confront the mother about being with her ex-boyfriend. He further conceded that he was feeling a lot of anger when he hit the mother and he felt betrayed because the mother was talking to her ex-boyfriend when he had told her not to. He conceded that he was controlling, that he hit the mother in the face as he was “overwhelmed with anger.” He further conceded that he was unable to control his actions:
[COUNSEL FOR THE MOTHER] In the same way that you were unable to control yourself when you became angry in all the other occasions when you were abusive; correct?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] So, at that time, even though you had ended the relationship, you literally kicked her out of the house, she should not have been talking to this person, in your mind?
[THE FATHER] That was in my mind, yes.[63]
[63] Transcript 14 March 2022, p.77 lines 9-14.
I find it incredulous to suggest that the mother’s nose bleed was “spontaneous” and to even tender a letter from a treating medical practitioner of the mother’s dated 24 August 2009 stating that the mother presented with recurrent epistaxis since she was four years old. As the father conceded in cross-examination, a spontaneous nosebleed by definition is a nose bleed that occurs without anything precipitating it. I find it more probable that the father punched the mother in the face to cause her nose to bleed. In any event, I find that the father hit the mother on the face with such force to cause her nose to bleed.
The father conceded and I find that part of the purpose of taking the mother back to his house was to clean up the evidence of his assault. Whilst he asserted that he took the jumper merely to wash it as it was covered in the mother’s blood, he conceded in cross-examination that he threw the jumper away. The mother did not ask him to throw the jumper away, and he did not ask her permission to do so. I find that the father disposed of the jumper as it evidenced his assault upon the mother.
The father tendered various documents and questioned the mother as to different versions of events being recorded by the New South Wales Police in the application for Apprehended Domestic Violence Order dated 14 July 2018 and in progress notes by Ms AC, a registered nurse dated 27 August 2018. Both these documents do have differing versions of the events as alleged by the mother. Those discrepancies relate to specific details as to the events on that day. Ms AC’s notes for example record that the mother told her that the father slapped her twice at the house and kicked her and she started to bleed, which the mother concedes differs to her affidavit evidence.
These are not documents prepared by the mother; they are a third party’s written recording of what they purport the mother said to them. I am cautious in those circumstances of rejecting the mother’s allegations solely on that basis.
I do place weight on these documents both reporting in a relatively contemporaneous manner that the mother has told them of the father perpetuating acts of violence upon her. I further find that there is a core consistency in the reported allegations of the mother. The patient health record of a social worker, Ms AD dated 16 June 2018, some 2 days after the alleged assault, states:
Progress Note
Addendum. Patient and her mother declared that they will not have anything to do with the father of baby where there was some recent history of domestic violence.
They also added that the father has also indicated that he does not want anything to do with Ms Neman or the baby.[64]
[64] Exhibit F24.
Whilst the notes from Ms AC, the registered nurse from NSW Health Services dated 27 August 2018 do differ in the specifics, it records in an overall sense the timeline of events asserted by the mother in her affidavit material.
According to the father, the paternal grandfather was at the house at this time. He could have given evidence to support the father’s version of events but did not. The father stated that the paternal grandfather saw them come back into the house after the assault. Likewise the mother’s friend Mr Y was not called to give evidence. He could have supported the mother’s version of events.
Of concern is the father’s evidence as to events that occurred after his assault on the mother. He alleges that the mother then wanted to have sex with him – after an assault where her nose is bleeding and she has told him that her back is so sore she cannot drive and was not feeling well. It is known now that the mother was in labour at this time. I accept and find that the mother would not have wanted to have sex with the father on this day in those circumstances. This leads then to two possible scenarios – the father somehow believed that the mother wanted to have sex and therefore has some difficulties in understanding normal sexual behaviour or he is saying this as he thinks it will somehow minimise in the Court’s mind the severity of his actions towards the mother that day. Assistance is obtained in determining this issue from the father’s later evidence:
[COUNSEL FOR THE MOTHER] Okay. All right. Well, it’s only a couple of – I will read it to you.
November 2019, [Ms Neman] expressed to me a desire to resume our relationship and be intimate with me again. On one occasion, we were at a park together and [Ms Neman] said, “I really miss you”. We then started hugging and kissing. I pulled away and said to [Ms Neman], this is not right. you’re still in a relationship with [Mr M].
What I’m asking you is whether or not – is whether her telling you that she really missed you and you beginning to hug and kiss, is that what you mean when you say she “wanted to be intimate with me”, is that what you’re describing?
[THE FATHER] No. That – it – it could have been but it didn’t suggest that she wanted to be intimate with me, no.
[COUNSEL FOR THE MOTHER] All right. Well, what are you referring to when you say she wanted to be intimate? “She expressed to me a desire to resume our relationship and be intimate with me again”?
[THE FATHER] Yes. Progressing to being intimate.
[COUNSEL FOR THE MOTHER] Yes. All right. Why is it important for her Honour to know that she wanted to be intimate with you in November 2019?
[THE FATHER] It’s suggesting that she wants to get back together and potentially have moved on from previous problems.
[COUNSEL FOR THE MOTHER] Okay. So you think the fact that she – you believe she wanted to resume your relationship and be intimate with you again was her – she had gotten over the fact that you had assaulted her?
[THE FATHER] It – it could have been.[65]
[65] Transcript 14 March 2022, p.83 lines 20-43.
In light of that evidence I find that the father alleged this to try and minimise in these proceedings his behaviour – that his actions could not have been that bad as the mother forgave him.
The father concedes he occasioned an act of physical violence on this day by slapping the mother. I accept and find on balance that the assault of the father upon the mother at the park was with such force that it caused her nose too bleed. I accept and find that the father retained and disposed of the jumper as it had evidence of his assault on it. I accept and find that on balance, prior to this the father at the home was verbally abusive to the mother and occasioned a physical assault upon her whereby he pushed her down the stairs. I accept and find that the father’s perpetration of physical and verbal abuse on this day had an element of controlling behaviour – even post-separation the father feels he is entitled to be angry at the mother if she acted in a manner he had told her was unacceptable during the course of their relationship.
July 2018: The Passport Issue
The parties met by arrangement on 13 July 2018 so the father could sign an application for X to obtain a passport. The mother alleges that the parties sat in the private section of Suburb S Library and the maternal grandmother was downstairs on the phone with the mother so she could hear everything that was said. The mother deposes that the father told her to show him her phone and when she refused he said words to the effect of “I’ll take you right here if you don’t show me.”[66] The mother asserts she found this to be threatening and upon her mother telling her to leave, she left. The father denied this allegation in cross-examination. This alleged incident was not in the maternal grandmother’s affidavit evidence. It was not put to the mother that her allegations were inaccurate. On balance, I cannot safely make a finding that this incident occurred as alleged.
[66] Mother’s affidavit filed 9 December 2021, paragraph 50.
The father alleges that later that day he received a phone call from the maternal grandmother who said words to the effect of “Mr Hoda, if you do not sign the document, Ms Neman and I will go to the police, have you charged with assault. We will ruin your life.”[67] The maternal grandmother was not cross-examined as to the father’s assertion. In those circumstances I cannot safely make any findings as to the father’s assertion.
[67] Father’s affidavit filed 9 December 2021, paragraph 41.
The father contends that on 2 August 2018 the maternal grandfather advised the father he could see X if he signed the passport papers. The maternal grandfather was not a witness in the proceedings. The mother in cross-examination stated that she was not present during the course of that conversation. Even if such a conversation occurred, there is no evidence it was said at the mother’s behest. I cannot safely make a finding in this regard on the evidence before me.
January 2021
The mother contends that on one occasion in early January 2021, the parties and X were sitting in the mother’s car. The phone linked up to the system in the mother’s car and at this time the father demanded that the mother allow him to look at her phone history, saying – “I don’t trust you. I can fix that by looking through your phone.”[68] The mother refused and left the vehicle with X. The mother asserts that the father followed her and grabbed her arm with excessive force whereupon X said “Stop it! You’re hurting my Mum.” The mother subsequently left with X.
[68] Mother’s affidavit filed 9 December 2021, paragraph 69.
This alleged incident was not put to the mother in cross-examination. In cross-examination the father accepted that he saw the mother to spend time with X but denied demanding to see the mother’s phone or grabbing her arm. In his affidavit the father asserts that as soon as he “made it clear to Ms Neman that I expected to have access to X on a regular basis she has decided to take steps to inhibit and stop me. Ms Neman’s assertions as to the assault are untruthful and designed only to make it more difficult for me to maintain a relationship with my daughter.”[69]
[69] Father’s affidavit filed 9 December 2021, paragraph 61.
Whilst the father was clear in his denial of the incident, the mother's affidavit evidence was detailed. It was not put to the mother that her version of the events was incorrect. I find on balance that it is more probable that this incident occurred as the mother alleged.
Coercive and Controlling Behaviour
The mother alleges the father engaged in coercive and controlling behaviour both during and post-separation. I have already made a finding that the father’s conduct in tracking the whereabouts of the mother on the day of X’s birth and his view that he was entitled to be angry that she was engaging in conduct he did not approve of was controlling.
Early in the relationship the father had messaged the mother telling her that “I go crazy when it comes to relationships” and “If someone jeopardises a relationship I’m in they won’t see the light of the next day.”[70] When it was suggested to him that it meant he would become violent if someone was to threaten the relationship he was in, the father’s evasive answer was “It can mean a lot of things. I can’t recall what it meant at the time.”[71] I find this unbelievable. I accept that the father was suggesting he would become violent if he perceived that someone was “threatening” a relationship of his. The father conceded during the course of cross-examination that he would get “upset” when the mother spoke to other males.
[70] Mother’s affidavit filed 9 December 2021, Annexure A.
[71] Transcript 14 March 2022, p.44 lines 40-41.

The father even on his own evidence has perpetrated family violence upon the mother. I have found further instances of family violence occasioned by the father upon the mother. The consideration and determination of whether there exists an unacceptable risk to X in spending time with the father will need to be evaluated in part by reference to these findings.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880. The Court Child Expert clearly articulates the risks associated with a child spending time with a perpetrator of family violence. There is of course the risk that the child themselves will be exposed to further perpetration of violence, either towards the victim-parent or the perpetrator’s new partner. As clearly articulated by the Full Court in Blanch & Blanch & Crawford (1999) FLC 92-837, 85,748, such exposure raises the serious dangers that children can:
…suffer insecurity, fear, unhappiness, anxiety and hypervigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law…
There are also risks to a child having ongoing time with a perpetrator specifically of coercive and controlling behaviour.
These include:
… the risk that the perpetrating parent will undermine the other parent’s role and authority as a parent, which may have a detrimental impact on the child’s relationship with the victim-parent and increased risk of psychological abuse and manipulation of the child by the perpetrating parent, including utilising a child to monitor a victim-parent.[89]
[89] Family Report dated 9 December 2021, paragraph 67.
In light of the father’s own concessions as to his perpetration of family violence upon the mother, the Court Child Expert opines that it is necessary for there to be substantial change in the father prior to it being in X’s best interests to spend time with the father. These changes would include:-
·The father acknowledging the full extent of his behaviour and thereby taking responsibility for his choice to perpetrate violence, coercion and control;
·The father demonstrating genuine insight as to the impact of his behaviour on the mother and X;
·The father demonstrating a willingness to behave in a manner that prioritises X’s and the mother’s safety and wellbeing; and
·Engaging in a Men’s Behaviour Change program, noting however that the completion of such a program in itself is unlikely to be sufficient in the absence of a genuine motivation to change.
I accept the Court Child Expert’s opinion in this regard.
The father asserts that he is a changed man. He has not provided evidence as to how he will modify his behaviour in the future. At its highest, he does little more than say that he now accepts that some of his past behaviours were forms of family violence. He reports to the Court Child Expert that he has completed an anger management program, and completed the ‘preliminary’ portion of a Men’s Behaviour Change program but has been unable to complete the in-person sessions due to the COVID 19 pandemic. He identified that as a result of his attendance he had learnt “how anger actually works” and how to control his own perspective and reaction to situations.[90]
[90] Family Report dated 9 December 2021, paragraph 37.
The father’s evidence was that, whilst in the past there were instances where he could not control his emotions, he has changed - he is now able to control his anger as he has become “more conscious and understanding”.[91] When asked what has happened between then and now to cause his change of personality the father’s response was:
[91] Transcript 14 March 2022, p.56 lines 31-33.
[THE FATHER] I’ve become more conscious and I understand and identify what those problems were and I’m now able to, you know, control myself.
[COUNSEL FOR THE MOTHER] But what has caused you to now understand things that you didn’t understand then?
[THE FATHER] Being conscious.
[COUNSEL FOR THE MOTHER] Is that your answer?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] Nothing else? It’s your chance to tell us, [Mr Hoda]?
[THE FATHER] Being – being conscious and understanding the types of different behaviours – controlling behaviours, violent behaviours.
…
[COUNSEL FOR THE MOTHER] Yes. And is that because you’ve done a parenting course or two?
[THE FATHER] I’ve only done one.
[COUNSEL FOR THE MOTHER] Okay. How long was the course for? This is the internet parenting course Up To Parents, yes?
[THE FATHER] Yes. It’s very short.
[COUNSEL FOR THE MOTHER] Well, how long?
[THE FATHER] It’s two days
[COUNSEL FOR THE MOTHER] Two full days?
[THE FATHER] Two – yes, around two days maximum.
[COUNSEL FOR THE MOTHER] All right. Do you remember the topics that were covered in that course?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] Well, tell us?
[THE FATHER] It’s about getting along with the other parent and techniques to use, your mindset in regards to parenting, co-parenting.
[COUNSEL FOR THE MOTHER] Anything else?
[THE FATHER] How X might feel during these times, and
[COUNSEL FOR THE MOTHER] During what times?
[THE FATHER] During times of breakup and, yes
[COUNSEL FOR THE MOTHER] And this course wasn’t a face-to-face course, was it?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] It was something you got online and you completed, yes?
[THE FATHER] Yes, as suggested. [92]
[92] Transcript 14 March 2022, p.56 lines 22-33, p.100 lines 26-47.
The father’s further evidence was that he has attended one session of the “Taking Responsibility” course. He conceded that he did not take the course to learn how to manage his behaviour as he did not realise until he was cross-examined that he has engaged in controlling behaviour other than telling the mother she cannot see her ex boyfriends.
Is then the father a changed man now that he has become “more conscious”? Has he taken responsibility for his choice to perpetrate family violence? Even when acknowledging a physical assault upon the mother on the day that X was born, the father is at pains to state to the Court Child Expert that he “let his emotions get the better of him”.[93] When asked about the impact of this assault on the mother, the father’s response was to again refer to his having lost control of his emotions and “indicated that this led to a feeling that ‘my brain wasn’t even really there’”.[94] The mother reported to the Court Child Expert that the father told her “that this behaviour is not his fault, that he cannot control himself, and that she made him ‘want to be so protective of [her].”[95]
[93] Family Report dated 9 December 2021, paragraph 33.
[94] Family Report dated 9 December 2021, paragraph 33.
[95] Family Report dated 9 December 2021, paragraph 38.
His explanation as to his perpetration of family violence upon the mother was consistent in his oral evidence. The father’s explanation for his conceded acts of family violence upon the mother was constantly “my emotions got to me”,[96] that this abuse occurred “in the heat of the moment.”[97] He did not concede that whenever his emotions got to him, that he responded with abuse; only “on the few occasions.”[98] He admitted that there are times when he becomes overwhelmed with emotion and cannot control his actions.
[96] Transcript 14 March 2022, p.47 lines 5-15.
[97] Transcript 14 March 2022, p.51 lines 37-39.
[98] Transcript 14 March 2022, p.53 lines 30-32.
The Court Child Expert opines that whilst the father’s conduct is suggestive of conscious choice, the possibility that the father’s psychological functioning was impaired to such an extent that he cannot be held accountable for his behaviour:
…is beyond the scope of this assessment and cannot be discounted. If, as [Mr Hoda] indicated, he perpetrated family violence against [Ms Neman] due to being emotionally dysregulated to the extent that he was not responsible for his actions, significant concerns would be raised regarding [Mr Hoda]’s psychological functioning and, therefore, [X’s] safety and wellbeing in his care… [99]
[99] Family Report dated 9 December 2021, paragraph 64.
The Court Child Expert report dated 9 December 2021 was released to the parties on 14 December 2021. The father has not placed evidence before the Court as to any psychological impairment that the father suffers or was suffering at the time of the relationship, more specifically on 14 June 2018 when he physically assaulted the mother even on his own evidence. I cannot in those circumstances make a finding that there was any psychological impairment of the father’s that leads to a conclusion he is not responsible for his actions.
The father was vague when asked for details of his behaviour, repeatedly stating that he could not remember much. He identified that his behaviour was as a result of him being angry or upset at something, but that the incidents occurred “so long back”. He asserted that his “behaviour has changed.”[100] He denied to the Court Child Expert the allegations made by the mother, asserting that the allegations are “absolutely ridiculous” and “all made up.”[101] The father did after a lengthy pause acknowledge that he had been controlling sometimes but that it was so long ago, “he cannot really remember.”[102]
[100] Family Report dated 9 December 2021, paragraph 34.
[101] Family Report dated 9 December 2021, paragraph 35.
[102] Family Report dated 9 December 2021, paragraph 35.
I find that the father has not taken responsibility for his choice to perpetrate family violence.
Does the father demonstrate genuine insight as to the impact of his behaviour on X and the mother? The starkest example of the father’s complete lack of understanding as to the serious nature of his own conceded actions, ignoring the findings I have made otherwise as to his perpetration of family violence, is contained within paragraph 48 of the Family Report:
When [Mr Hoda] was asked what he could do to rebuild trust between him and [Ms Neman], he stated “we both need to forgive each other for everything that’s happened in the past”. He acknowledged that he was asked about himself and stated that he needs to “forgive [[Ms Neman]] for everything that’s happened in the past” and referred to “crazy allegations” [Ms Neman] had made; however, he said “I will move on from it”. [Mr Hoda] also identified that he and [Ms Neman] “really need to start communicating and understand each other”, including how they each feel and why they feel the way they do. He stated that he really wants to be civil with [Ms Neman] in order to “raise [X] together”, “without any problems”, and to be able to “quickly solve” any problems that arise.
and at paragraph 65:
…His narrative indicated that he perceives his abusive behaviour as being beyond his control, and abuse and possessiveness as justified responses to anger and jealousy, rather than acknowledging, and being accountable for, his choice to perpetrate coercion, control, and abuse against [Ms Neman]. [Mr Hoda] did also not demonstrate an understanding that his choice to perpetrate family violence is likely to be a consideration in determining whether or not it is in [X’s] best interests to spend time with him.
and at paragraph 66:
…The overall impression was that any insight demonstrated by [Mr Hoda] regarding his perpetration of family violence, and the impact of this on [Ms Neman] and [X], was superficial and not indicative of genuine and substantive change that would be consistent with a reduction in risk of harm to [X]. [Mr Hoda] not taking responsibility for his perpetration of family violence and demonstrating limited impact of his behaviour on [Ms Neman] and [X] raises concerns regarding his motivation to change in order to protect [X] from the risks associated with contact with a perpetrator of family violence.
I find that the father minimised his behaviour and was unable to contemplate or acknowledge the impact of his behaviour on the mother, stating that his coercive and controlling behaviour was “quite minimal” and “wasn’t substantial.”[103] He was unable to even acknowledge the physical consequences of his assault on the mother; his evidence being that the mother suffered from “random nose bleeds”. This assertion continued to the end of the hearing with Counsel for the father tendering a letter from a medical practitioner seen by the mother when she was four years of age as to this condition.
[103] Family Report dated 9 December 2021, paragraph 36.
I find that the father’s oral evidence continued to demonstrate a lack of insight into his behaviour and their effect. Despite his concessions as to the names he called the mother, his view was that “On the most part, even when I was angry, I would communicate in a nice way”; that the language he used with the mother “could” be intimidating, but “it’s more rude and disrespectful than intimidating.”[104] He conceded that when his emotions got to him he responded with abuse, but only “on the few occasions.”[105] With respect to his physical assault on the mother, he conceded that he was “dumb” but asserted: “I couldn’t control myself. But you have to see it from my eyes as well.”
[104] Transcript 14 March 2022, p.47 lines 30-31.
[105] Transcript 14 March 2022, p.53 lines 30-32.
The father reported to the expert that he “completely regret[s] doing many of the things I’ve done”, but clarified that this was referring only to “leaving” and “not being there”[106] rather than his perpetration of family violence upon the mother. Even after completing the parenting course the father was still unable to answer whether calling the mother a “fucking stupid bitch” was problematic.
[106] Family Report dated 9 December 2021, paragraph 28.
The father, at the same time as conceding that he had occasioned family violence upon the mother, reported to the expert that he wanted to be a “role model” for X and that he offers X “everything” including financial security, shelter and food.[107]
[107] Family Report dated 9 December 2021, paragraph 27.
The father’s stated view to the Court Child Expert that the mother’s motivation for not facilitating time between X and himself being due to “payback” or “revenge” as he was not involved with X from birth again is a stark example of the father’s inability to comprehend the effect of his actions on the mother.
Despite his concessions the father’s evidence is that he is going to make an application to have the current Apprehended Domestic Violence Order withdrawn as “there was no basis on it. It was – in my eyes it’s an invalid AVO.”[108] This is a stark example of the father’s inability to behave in a manner prioritising X and the mother’s wellbeing and safety.
[108] Transcript 14 March 2022, p.112 lines 44-46.
I find there to be a hollowness to the father’s assertion that he is a changed man. I do not accept that any parenting course he has undertaken is indicative of any desire to change as I am not satisfied that the father is aware that his behaviour must change. I am not satisfied he has any genuine insight as to impact and seriousness of the acts of family violence he has perpetrated upon the mother. The continuing course of his controlling actions post-separation cause me significant concern. I am satisfied that the father is unable to control his emotions and resorts to the perpetration of violence. I am satisfied and find that X is at risk of physical harm were she to spend time with the father in circumstances where he is unable to control his actions. I am satisfied having regard to my findings above that X is at significant risk of harm of psychological harm were she to spend time with the father and that this risk of harm is unacceptable.
The mother submits that any court ordered time between X and the father would detrimentally impact her parenting capacity. The father submits that there is a lack of cogent evidence in circumstances where the mother did not place medical evidence before the Court.
In R & C [1993] FamCA 62, the Full Court referred to the decision of the Full Court in B & B (1993) FLC 92-357 (“B & B”) and stated, at [32]:
…In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
The Full Court in Keane & Keane (2021) 62 Fam LR 190, 209 stated:
[81] Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
The Full Court cited the summary of the relevant principles in Blinko & Blinko [2015] FamCAFC 146 as follows:
83. It may be taken as well established by a line of authorities generally acknowledged to commence with [R & C [1993] FamCA 62] that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
The Full Court decision of Helbig & Rowe [2016] FamCAFC 117 cited with approval the case of A v A (1998) FLC 92-800, 84,996 at [3.29]:
…The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance…
(Emphasis added)

In cross-examination the mother deposed that she did not report the violence occasioned upon her by the father as she was concerned about being alone; she was scared of the father and what he would do. She was further concerned that the report would get back to him which would enrage him and another assault would happen. She didn’t want that “because I didn’t have anyone else around me.”[109] She conceded that her concern was the status of her relationship, “It would just be me by myself, and he had alienated me to the point of I had no one else that could really witness what happened.”[110] I am satisfied that the mother is vulnerable as a result of her history of sexual abuse. She was emotionally dependent upon the father. She continued to love him despite his perpetration of family violence. Tendered documents from the father to the Court of 18 and 19 March 2018 evidence the mother texting the father:
Please
If you love me
Come back.
I don’t want to hurt myself
But I’m close.[111]
[109] Transcript 16 March 2022, p.307 line 38.
[110] Transcript 16 March 2022, p.307 lines 43-44.
[111] Exhibit F13.
The mother tendered an Integrated Progress Note from her psychologist dated 27 August 2019 that reports “These symptoms are consistent with Post-Traumatic Stress Disorder (DSM-5), with a presence for a period of a year and resulting in disconnection from relationships, no social engagement, and lack of engagement in activities.”[112] The Court Child Expert opined that whilst a lot of the impact of the family violence perpetrated upon the mother by the father has been addressed by her through counselling, her account “included a number of examples of ongoing adverse impact on her psychological wellbeing, including cumulative harm due to previous childhood trauma.”[113] She described a “severe sense of anxiety” when she is in a physical relationship with another person and described hypervigilance regarding the father’s presence, including checking if the father’s car is near her house or X’s day care.^[114]
[112] Exhibit M4.
[113] Family Report dated 9 December 2021, paragraph 46.
[114] Family Report dated 9 December 2021, paragraph 46.
The father himself conceded to the Court Child Expert that, as a result of his assault upon her on the day that X was born, it would be hard for the mother to trust him, stating that, “if someone hit him, he would hold concerns about further perpetration of violence.”[115]
[115] Family Report dated 9 December 2021, paragraph 33.
The mother’s evidence contained multiple text messages between the parties on 22 January 2021. During the course of these messages the father advises the mother: “you can’t run away from the inevitable It was gonna happen sooner rather than later You thought I’m not gonna get a sort of connection with my own daughter?”[116] The mother asks the father on multiple occasions to stop and leave her alone, she felt sick at his messages. “Please leave me alone…Please…I need you to leave me alone…Please Okay I can’t breathe You are bringing me to have an anxiety attack please I’m begging you just leave me alone.”[117] The father conceded that the mother suffered a panic attack as he had told her he wanted to see X.
[116] Exhibit M8.
[117] Exhibit M8.
The Court Child Expert opined that the mother’s account to her was indicative that X spending time with the father would adversely impact her psychological well-being, including a heightening of her anxiety. The father’s perpetration of family violence:
…is highly likely to be a mitigating factor in her experiencing anxiety associated with her and in her wanting to limit hers and [X’s] contact with him. It is, however, possible that the adverse impact on [Ms Neman]’s psychological wellbeing is disproportionate to the risk to [X] in [Mr Hoda]’s care. Irrespective, any deterioration in [Ms Neman]’s psychological functioning could have an adverse impact on [Ms Neman]’s parenting capacity and ability to meet [X’s] needs and, therefore, pose an associated risk of harm to [X]. Additionally, if it is determined that [X] is not at risk of harm in [Mr Hoda]’s care and she should spend time with him, [X] being aware of, and exposed to, anxiety experienced by [Ms Neman] regarding her spending time with [Mr Hoda] is likely to undermine [X]’s ability to build a meaningful relationship with him.[118]
[118] Family Report dated 9 December 2021, paragraph 63.
The father himself in cross-examination conceded that he has concerns as to the mother’s mental health whilst she is caring for X. The father conceded to the Court Child Expert that the current proceedings,
…particularly the possibility that [X] might commence spending time with him, would be “very stressful” for [Ms Neman] and would trigger her “hypervigilance” and “anxiety” and would “definitely be affecting her.[119]
[119] Family Report dated 9 December 2021, paragraph 45.
The following exchange occurred during the course of cross-examination :-
[COUNSEL FOR THE MOTHER] So you say that her Honour should be concerned about the mother’s mental health whilst she’s caring for [X], yes?
[THE FATHER] There should be consideration, yes.
[COUNSEL FOR THE MOTHER] Yes. And so if it was the case that any contact that you had with [X] led to a deterioration in the mother’s mental health, you would accept that that would not be in [X’s] best interest, correct?
[THE FATHER] Yes.[120]
[120] Transcript 14 March 2022, p.105 lines 22-27.
The mother’s evidence in cross-examination as to the effect on her psychologically if supervised time was ordered was non-responsive. She stated that she would not really know what to do if she was separated from X, and that she would feel “really lost without her.”[121] More telling was the mother’s evidence when asked how she thought it would work if it was necessary to communicate with the father if that was required to facilitate an order of the Court including supervised time. Her response was that she would fear for both hers and X’s life and safety.
[121] Transcript 16 March 2022, p.310 lines 31-32.
I am satisfied that there is the potential for the mother to be adversely affected if the Court were to order that X spend time with the father. I am satisfied and find that there is a possibility that if time were ordered it would negatively impact the mother’s psychological well-being including a heightening of her anxiety. I cannot on the evidence before me safely make a positive finding that it would so adversely affect the mother that it would significantly negatively impact upon her parenting capacity.
The mother and Independent Children’s Lawyer submit that the risks the father poses to X cannot be ameliorated in any way. Whilst the Court is not bound by the parties’ proposals, the difficulty the Court faces in determining whether some form of supervision would ameliorate the unacceptable risk the father poses to X is the lack of an evidentiary basis for such an order.
The father formally seeks orders for graduated time with X, with the first phase of time to commence from the date of the orders and conclude on 30 June 2022 and to be for a period of 2 hours each Sunday supervised by a professional supervising agency such as AH Children’s Contact Service then increasing in time so that overnight time commences from 1 July 2023. The possibility of the Court ordering permanent supervision was raised almost as an afterthought by Counsel for the father during the course of final submissions. It was submitted the Court has a clear discretion to extend supervision to “the child’s majority” as “I can do all sorts of things, I have no challenge to my discretion.”
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose (2008) FLC 93-375. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
As a matter of fairness the question of permanent supervision was never put to the mother in cross-examination. It was not raised with the Court Child Expert so that the Court could benefit from her expert opinion as to the potential impact on X of long term supervision of her time with the father and the possible advantages and detriment to the child and the potential impact on the mother. The father did not seek leave to reopen his case.
There is no evidence as to the practical nature of how such long term supervision time would occur including the payment of same in circumstances where neither party is employed. There is no evidence as to the practical long term effects on X of such an order. I cannot make determinations as to X’s best interests in an evidentiary vacuum. I cannot make an order on the evidence before me that long term supervision of X’s time with the father is in her best interests.
Questions were put to the Court Child Expert as to whether the paternal grandparents could afford some reduction in risk to X in spending time with the father. The Court Child Expert was clearly of the opinion that they could not.
[COUNSEL FOR THE MOTHER] And it means that really her Honour couldn’t be satisfied, that, for example, if that was the case, that the paternal grandparents provide some level of mitigation of risk?
[THE COURT CHILD EXPERT] No. In order to be satisfied or in order to reduce my concern in terms of the paternal grandparents being able to mitigate risk, I would be looking at whether or not they themselves accept the father’s behaviour as he has acknowledged it, and any findings that her Honour may make in terms of the father’s behaviour, and that they therefore are willing to protect [X] from any assessed risk of harm having this insight in their own right into what those risks may be.[122]
[122] Transcript 16 March 2022, p.331 lines 24-31.
The paternal grandmother was not an impressive witness. I am not satisfied that she accepts or appreciates the serious nature of the father’s actions. She does not have a relationship with the mother. There is no evidence she would be able or willing to supervise time. The paternal grandfather did not give evidence and hence was not the subject of assessment in the trial. I cannot be satisfied, again in an evidentiary vacuum, that the paternal grandparents would be in a position to adequately ameliorate the risks to X in the father’s care by supervising time.
No evidence was presented nor submissions made as to “identification contact.” In circumstances where X has a limited relationship with the father I am satisfied that such an order would not be in her best interests.
I am not satisfied that X’s time with the father occurring on a supervised basis would sufficiently ameliorate the unacceptable level of risks the father poses to X. Whilst I am not bound by the competing proposals of the parties, there is no evidence before me at all as to how and if supervised time would be in X’s best interests. I cannot make orders in an evidentiary vacuum.
Parental Responsibility
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of X that the parents have equal shared parental responsibility is rebutted as there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence.
The father himself concedes that he has occasioned family violence upon the mother. Accordingly, the presumption is rebutted.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting X. There is a current Apprehended Domestic Violence Order between the parties. The father told the Court Child Expert that communication between him and the mother is “non-existent.”[123]
[123] Family Report dated 9 December 2021, paragraph 47.
Despite his conceded acts of family violence upon the mother, it remains the father’s view that he and the mother “can raise X together without any problems.”[124] The father cannot accept that it would be difficult to establish communications that would facilitate the parties having equal shared parental responsibility.
[124] Transcript 14 March 2022, p.105 lines 1-2.
The mother seeks an order for sole parental responsibility. Having regard to the findings of family violence made, I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. I am satisfied that as the uncontested resident parent the mother should have sole parental responsibility for X.
CONCLUSION
The father perpetrated family violence upon the mother both during the relationship and post-separation. Such family violence included sexual, physical and verbal abuse. The father engaged in coercive and controlling behaviour, again both during and post-separation. I am not satisfied the father has undergone the necessary changes for him to appreciate his actions and to ensure that he does not continue to perpetrate family violence in the future. It is highly probable that the father will not be able to manage his emotions whilst caring for X in the future, thus placing her at an unacceptable risk of harm were she to spend time with the father.
I thus will make orders as sought by the mother and the Independent Children’s Lawyer that X will live with the mother and spend no time with the father. In light of my findings as to family violence I am satisfied it is in X’s best interests that an order be made restraining the father from approaching within 500 metres of the various places it is likely X will be attending on a regular basis.
Orders will be made accordingly.

I certify that the preceding two hundred and fifty-eight (258) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 22 July 2022

File number:	PAC 2105 of 2021
Judgment of:	JUDGE MURDOCH
Date of judgment:	22 July 2022
Catchwords:	FAMILY LAW – Where the father did not seek time with the child for a period following the child’s birth – The mother is the uncontested resident parent – Where the father now seeks time with the child – Where the father perpetrated physical and sexual assaults upon the mother – Where the father lacks insight as to the impact and seriousness of the acts of family violence he has perpetrated – Where the mother says that the facilitation of time between the child and father would adversely impact upon her parenting capacity – Where the child would be at an unacceptable risk of harm were she to spend time with the father – Orders made for the mother to have sole parental responsibility, the child live with her and spend no time with the father.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 60CG, 65D, 65DA, 65DAA, 65DAC United Nations Convention on the Rights of the Child art 19
Cases cited:	A v A (1998) FLC 92-800 Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 B & B (1993) FLC 92-357 B & K [2001] FamCA 880 Blanch & Blanch & Crawford (1999) FLC 92-837; [1998] FamCA 1908 Blinko & Blinko [2015] FamCAFC 146 Dieter & Dieter [2007] FamCA 608 Gorman & Huffman & Anor [2016] FamCAFC 174 Helbig & Rowe [2016] FamCAFC 117 Illgen & Yike [2018] FamCA 17 Isles & Nelissen [2022] FedCFamC1A 97 Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1 Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46 M & M (1988) FLC 91-979; [1988] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 R & C [1993] FamCA 62 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Zuen & Lhao [2020] FamCAFC 84
Division:	Division 2 Family Law
Number of paragraphs:	258
Date of hearing:	14, 15, 16, 31 March 2022 and 28 April 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Connor
Solicitor for the Applicant:	Hills Family Law Centre
Counsel for the Respondent:	Mr Guterres
Solicitor for the Respondent:	Kalpaxis Legal Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Francis
Solicitor for the Independent Children's Lawyer:	Claremont Legal

PAC 2105 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HODA Applicant
AND:	MS NEMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	22 JULY 2022