Millar & Oakley - [2021] FedCFamC1F 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millar & Oakley [2021] FedCFamC1F 12

File number(s): MLC 2195 of 2016

Judgment of: WILLIAMS J

Date of judgment: 2 September 2021

Catchwords: FAMILY LAW – PARENTING – Application by the father for two children to live with him and for an order for equal shared parental responsibility, notwithstanding he had spent no time with the children for many years – Held the mother should have sole parental responsibility for the children and they should remain living with their mother – Dispute about whether the father had abandoned the mother in the African Country B in September 2014 with the intention to remove the children to Australia – Whether the father returned the children to the African Country B in April 2016 to put them beyond the jurisdiction of the Australian courts – Whether the father frustrated the return of the mother from the African Country B to Australia – Allegations by both parents that the other parent posed an unacceptable risk of harm to the children – The mother alleged coercive and controlling conduct and removal of the children from her care by the father and the father alleged parental incapacity and mental health issues of the mother – Held that the father was an unacceptable risk of harm to the children as alleged by the mother and the mother does not pose an unacceptable risk to the children and is a committed and competent parent – Whether it was in the best interests of the children to spend time with the father in the context of the finding of unacceptable risk of harm – Held there should be no time between the children and the father and there were no conditions or circumstances which would mitigate the risk the father posed to the children

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 68B, 68Q, 69ZW, 122AA

Division: Division 1 First Instance

Number of paragraphs: 287

Date of hearing: 30 July–2 August 2019, 9 December 2019, 12–13 March 2020, 28 June – 1 July 2021

Place: Melbourne

Counsel for the Applicant: Mr Goddard

Solicitor for the Applicant: Ebejer And Associates

Counsel for the Respondent: In Person

Counsel for the Independent Children's Lawyer: Ms Patterson

Solicitor for the Independent Children's Lawyer: Taft Lawyers
ORDERS

MLC 2195 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MILLAR
Applicant

AND:
MR OAKLEY
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother have sole parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).
3.The children live with the mother.
4.The children spend no time nor have any communication with the father.
5.The Father, his servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children X born in 2012 and Y born in 2014 from the Commonwealth of Australia. This order ceases to have effect upon each of the children attaining 18 years of age.
6.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
7.The Court requests that the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.
8.The father, his servants or agents be and are hereby restrained by injunction from doing any of the following, without the express written consent or invitation of the mother:
(a)contacting the children;
(b)attending the children’s place of residence;
(c)attending the children’s school/s;
(d)attending any extracurricular activities in which the children participate;
(e)placing the children or either of them or the mother under surveillance or engaging any third party to do so;
(f)publishing on social media any comments relating to these proceedings, the children or either of them or the mother, or copies of any documents relevant to these proceedings.

9.Order 8 hereof is an injunction made against the father pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of the mother and the children and if a police officer believes, on reasonable grounds, that the father has breached the injunctions (or any of them) the police may arrest the father without warrant and the father be brought before this registry of the court or any other court exercising jurisdiction under the Act, on the first day which the courts next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA of the Act a person who is authorised or directed by provision of the Act, or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.
10.To the extent that these orders and injunctions relating to the children are inconsistent with the terms of any intervention order in which the father is a respondent and either or both of the children or the mother named as affected family members, the Court declares pursuant to s 68Q of the Act that these orders and injunctions prevail to the extent of any inconsistency.
11.The mother be permitted to provide, including electronically and via her lawyers, a copy of these orders and reasons for judgment, to:
(a)the registrar of the State Magistrates Court at which the last known intervention order was made;
(b)the Department of Families, Fairness and Housing;
(c)Victoria Police Centre, Records Services Division;
(d)the registrar of VCAT.

12.The order appointing the Independent Children's Lawyer be discharged upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.
13.All extant Applications be 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 the pseudonym Millar & Oakley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION

The applicant is the mother and the respondent is the father of the children X born in 2012 (aged 8) and Y born in 2014 (aged 7) ("the children").
Issues in Dispute
The following issues were in dispute in the proceedings:
(a)parental responsibility for the children;
(b)which parent the children should live with;
(c)if the children live with the mother, whether they should spend any time with their father, and if so, the length and frequency of such time;
(d)if the children live with the father, the time they should spend with their mother.
Synopsis
I have determined that it is in the children's best interests that:
(a)they live with their mother;
(b)the mother have sole parental responsibility for the children;
(c)the children should not spend time with or communicate with the father.
The reasons for my determination follow.
Preliminary matters
The trial of this matter originally commenced on 30 July 2019 for four days.
On 19 June 2019 and on 24 July 2019, a few days prior to the commencement of the trial, the father filed Applications in a Case. He sought an order for the discharge of the Independent Children's Lawyer. Both counsel for the mother and the Independent Children's Lawyer objected to the late filing of the applications and the orders sought.
It was ultimately agreed that the father could pursue the orders sought in his Application in a Case filed 19 June 2019, during the course of the trial and that his Application in a Case filed 24 July 2019 would be with withdrawn, in relation to Orders 1, 2, 3 and 11 of that Application. That included the father withdrawing his application for the discharge of the Independent Children's Lawyer.
Additionally, there was a notation to the order, providing that the father be at liberty to seek orders in accordance with orders 4 to 10 inclusive sought by his Application in a Case filed 24 July 2019.
At the commencement of the trial, as the father was self-represented, I advised him that he may wish to consult a duty lawyer to obtain advice, however he declined to do so. The father is an extremely articulate and highly educated man who has an impressive command of the English language. He is no stranger to the court process, having been involved in litigation in this Court on numerous occasions, including appearing as a self-represented litigant before His Honour, Justice Cronin and the Full Court of this Court. I also advised the father of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072, and directed him to the relevant provisions of the Family Law Act 1975 (Cth).
On 9 December 2019, when the matter was due to resume, the father and both Counsel bought to my attention that the father had sought and obtained from the DHHS a review of the manner in which his family had been investigated by the DHHS. Counsel for the mother submitted that the result of the further investigation by the Department should be available prior to him commencing cross-examination of the father. I agreed with that submission.
On that day I made orders adjourning the matter for mention on 19 December 2019 and made the usual order for a s 69ZW report.
On 19 December 2019, the s 69ZW report was provided to the parties and the matter was adjourned for resumption of the trial on 12 March 2020. The matter proceeded for two further hearing days prior to the commencement of the COVID-19 pandemic restrictions.
The COVID-19 pandemic and the lockdown restrictions in Victoria made it impossible for the trial to continue, as I deemed it inappropriate to continue electronically. The reasons for that determination included that the father was a self-represented litigant, whose first language was not English, albeit he demonstrated an excellent command of English and a sophisticated knowledge of the language and that the mother required the assistance of an Arabic interpreter.
The face to face trial recommenced on 28 June 2021 and took a further four days of hearing time, concluding on 1 July 2021.
Prior to the recommencement of the trial, the father affirmed a further affidavit on 23 June 2021, where he deposed to having instituted proceedings at VCAT against DHHS because of further complaints about procedural fairness and the manner in which the Department conducted its investigations. At paragraph 11 of his affidavit, the father deposed that the DHHS report which was undertaken as a result of the first review instigated by the father, was contaminated because of lack of procedural fairness towards him in the second investigation.
As a result of that allegation I requested Counsel for the Independent Children’s Lawyer to arrange for the author of the second DHHS report dated December 2019, Ms V to be available to give evidence and being cross-examined. Ms V gave evidence and was cross examined on both the second last afternoon of the trial and for a further hour on the last morning of the trial.
BACKGROUND
Regrettably, this matter has an extensive history of litigation in this Court, the Federal Circuit Court and courts in the African Country B. The primary focus of the litigation in the African Country B has been an international dispute about the children between the parents and the father's extended family.
The parents' version of past events is divergent, with each blaming and holding the other responsible, for what has transpired.
The father has lived in Australia since 2001 and is now an Australian citizen. The mother lived in the African Country B, where the parties had known each other since childhood. They were reintroduced to each other at a family wedding in either 2006 or 2007 in the African Country B.
The parties married in 2010 and immediately applied for a spousal visa to enable the mother to travel to Australia. After initial rejection of the application, a Visa was granted which enabled the mother to arrive in Australia in 2012. Although the mother was entitled to apply for permanent residency, because she had lived in Australia for a period of six months, she did not pursue that application.
Their first child, X, was born in 2012 and the second child, Y, was born in 2014.
According to the father, the parents were divorced in Australia, pursuant to Islamic law in 2014, with him contacting the members of the maternal family to advise of the separation. The mother asserts that separation occurred on 24 September 2014, when the father left the African Country B with the children and returned to Australia, without their mother's knowledge or consent.
Prior to September 2014, the mother asserts that she was the primary carer of the children, albeit they were enrolled in a child care centre three days a week from the end of June 2014. According to the mother, the children's enrolment in child care was at the unilateral behest of the father. According to the father, the mother lacked parental capacity to care for the children and the children were allocated a place, as a result of a priority request from the Nurse.
On 15 September 2014, the parents and children travelled to the African Country B with return flights booked for 20 October 2014. The mother was under the impression that the family was having a holiday in the African Country B and would be returning to Australia at the conclusion, in accordance with the return ticket.
Whilst the family was in the African Country B, on 24 September 2014, the father and the children returned to Australia, without advising the mother. The mother asserts that she had gone to visit family members for a few hours during the day, leaving the children with their father and when she returned to their accommodation some hours later, the father had left with the children and she had no idea of their whereabouts.
The father asserts that prior to their departure from Australia the mother had told him that she did not intend to return to Australia. He alleges that the mother was adamant that she would remain in the African Country B and told him to return to Australia with the children, where they could resume child care. The father asserted that the children became increasingly unwell and in the context of threats from the mother and her family that the children would be taken from him and possibly harmed, he returned to Australia with them to ensure their safety.
The mother discovered that the children and father had returned to Australia a couple of days later after making enquiries with members of the African Country B community in Australia.
The father asserted that he advised the mother that the children had arrived safely in Australia the day after arrival.
The mother asserts that the father took her passport and personal documents with him, stranding her in the African Country B. She subsequently ascertained that her spousal Visa had been cancelled in June 2014, because the father had advised the relevant department that the parties had separated. He did not advise the Department that the mother was living in Australia at that time and that the parties had two children, both of whom were born in Australia and were Australian citizens.
The mother remained stranded in the African Country B until February 2016, when she managed to obtain a temporary Visa to enable her to return to Australia. At the time the children were removed from the African Country B by their father, X was not quite two years old and Y was a nine-month-old breastfed baby. The children and their mother were separated for a period of approximately 17 months. The father is highly critical of the mother's lack of efforts to return to Australia.
The mother asserts that her contact with the children while she remained in the African Country B was sporadic and intermittent as the father regularly refused to take her telephone calls. According to the father there was frequent and regular contact between the parents, when they discussed issues pertaining to the children.
Within a week or so of the mother's return to Australia in February 2016, the father applied for an intervention order against the mother, on the behalf of himself and the children. An order was made on an ex parte basis on 8 March 2016.
On 15 March 2016, the mother filed an Initiating Application in the Federal Circuit Court, seeking an urgent ex parte hearing to place the children on the airport watch list. The mother's application was listed for 10 May 2016.
On 9 April 2016, the father was served with the mother's parenting application. Within a few days of service, he travelled with the children to the African Country B and placed them in the care of his family, whilst he returned to Australia around 16 April 2016. He had apparently intended for the children to return to Australia within three months, after he had secured an intervention order to provide for the children's safety.
The father proffered a number of reasons why he removed the children to the African Country B, which are referred to subsequent paragraphs.
The mother pursued her proceedings in the Federal Circuit Court, and on 10 May 2016 the names of the parents and children were placed on the airport watch list.
On 16 May 2016, interim orders were made by Judge Burchardt for the return of the children to Australia no later than 30 May 2016. His Honour published reasons for those orders, which addressed the issue of forum for the family law proceedings. His Honour determined that Australia was the appropriate forum to determine the family law dispute between the parties.
The orders of 16 May 2016 were not complied with and the children did not return to Australia. The mother asserts that the father and his family thwarted all attempts to locate and return the children to Australia.
On 14 November 2016, further orders were made by Judge Burchardt, which provided for the mother to have sole parental responsibility, the children to live with her and for the children to be returned to Australia as soon as practicable.
In October 2016, the mother returned to the African Country B and approximately a month later she located the children and they were returned to her care. During the time the children were in the African Country B without either parent, proceedings were instituted in that country by paternal family members alleging that the mother had neglected and abandoned the children, and that seeking orders that the children should be cared for by the paternal grandmother.

As a result of the proceedings in the African Country B, the mother was restrained from leaving that country. Furthermore, in the context of the mother's defiance of an order in the African Country B court to return the children to the paternal grandmother, she was imprisoned in the African Country B for a period of three days in December 2017. Upon her release from prison in the African Country B, the mother was not able to leave the country without the father signing the requisite documentation.
The proceedings were transferred from the Federal Circuit Court to this Court on 21 March 2017.
The father asserted that he was unable to comply with orders providing for the return of the children to Australia as he had no authority to permit the mother to travel to Australia.
On 30 January 2018, His Honour Justice Cronin found the father guilty of contempt of court and on 12 February 2018 he was sentenced to six months imprisonment, suspended for two years.
Subsequent to the contempt finding and sentence, the father complied with his obligations to ensure the return of the mother and the children to Australia. They returned to Australia on 4 May 2018.
On 21 November 2018, orders were made by Justice Cronin providing for the parties to apply to a contact centre, although no orders were made for the father to spend time with the children. The father has not spent any time with the children since he took them to the African Country B in April 2016.
During the course of the proceedings the father, without success, filed applications, including seeking to discharge the order prohibiting him from leaving Australia and for the children to be placed in his care. He also unsuccessfully appealed against the orders of Justice Cronin of 28 July 2017, 30 January 2018 and 12 February 2018.
THE PROPOSALS OF THE PARTIES AND DOCUMENTS RELIED UPON
The mother's proposal
The orders which the mother seeks from the Court are set out in her Case Outline document filed on 26 July 2019.The orders she seeks are:
(a)the mother have sole parental responsibility for the children;
(b)the children live with the mother;
(c)the children spend no time or communicate with the father.
The documents relied upon by the mother are:
(a)Amended Initiating Application filed 8 April 2019;
(b)trial affidavit affirmed 8 April 2019;
(c)affidavit in reply affirmed 15 May 2019;
(d)Further updated affidavit affirmed 28 May 2021;
(e)Section 11F report of Ms S dated 27 February 2019;
(f)family report of Ms S dated 28 June 2019;
(g)Section 69ZW response from the Department of Health and Human Services dated 14 February 2019.
The father's proposal
It was difficult to ascertain precisely what orders the father sought during the trial as his proposals constantly changed. The proposals ranged from the father having sole parental responsibility for the children and that they immediately live with him with little contact with their mother, to his final proposal for a transition of the children’s living arrangements into his care. The father's final proposal which he submitted during his final submission was as follows:
(a)the parents have equal shared parental responsibility for the children;
(b)the children live with the father after a three month transition period and would change schools;
(c)during the three month transition period the children:
(i)would be introduced to the father with the assistance of an expert, preferably a psychologist and assessed as to whether they were suffering trauma or had any other therapeutic needs;
(ii)would spend two days a week with the father after a couple of times of introduction;
(d)after the children have transitioned to the father’s household the children spend time and communicate with the mother each weekend and she would be free to speak to her everyday if necessary;
(e)school holidays would be shared equally between the parents and the children spend special occasions with each parent;
(f)the mother engage in a parenting after separation course (which the father has already completed) to educate her about the effects of denigration on the children’s psychology;
(g)mutual non-denigration restraints;
(h)the children attend for therapeutic intervention and trauma therapy;
(i)injunctions against unidentified members of the African Country B community who sympathised with the mother, restraining them from publicly identifying the proceedings and parties thereto;
(j)the unidentified African Country B community members who published details of the dispute between the parents be referred to the Attorney General’s Department for investigation.
The documents relied upon by the father are:
(a)Amended Response to final orders filed 29 April 2019;
(b)affidavit filed 29 April 2019;
(c)affidavit filed 23 June 2021;
(d)affidavit filed 22 June 2020;
(e)Notice of Risk of filed 26 July 2019;
(f)affidavit and Application in a Case filed 24 July 2019;
(g)affidavit of single expert witness (Dr Q) filed 10 July 2019;
(h)affidavit of Dr R (Father’s medical practitioner) sworn/affirmed 27 April 2019;
(i)various other affidavits previously filed in the proceeding, to which he referred during the trial.
The proposal of the Independent Children's Lawyer
The Independent Children's Lawyer's proposal is as follows:
(a)the mother have sole parental responsibility for the children;
(b)the children live with the mother;
(c)the children spend no time with the father;
(d)the airport watch list order dated 5 May 2016 made by Her Honour Judge Bender relating to both children remain in full force and effect for as long as the court in its discretion can so order;
(e)the father be and is hereby restrained, by himself, his servants and agents from removing the children or either of them from the mother's care or position or the care or position of any person with whom the mother has placed the children or either of them;
(f)the father his servants and agents be, and are hereby, restrained by injunction from doing any of the following without the express written consent or invitation of the mother:
(i)contacting the children;
(ii)attending the children's place of residence;
(iii)attending the children's schools;
(iv)attending any extracurricular activities in which the children participate;
(v)placing the children or either of them or the mother under surveillance or engaging any third party to do so;
(vi)publishing on social media any comments relating to these proceedings, the children or either of them or the mother or copies of any documents relevant to these proceedings;
(g)the mother is permitted to apply for an Australian passport for the children or either of them, without obtaining the father's consent or signature.
The documents relied upon by the Independent Children's Lawyer are:
(a)Children and parents issues assessment of Ms S dated 27 February 2019;
(b)Family report of Ms S dated 26 June 2019;
(c)Section 69 ZW response from the DHHS dated 14 February 2019 ;
(d)the following judgments:
(i)reasons for judgment of Judge Burchardt delivered 14 November 2016 (sole parental responsibility to mother);
(ii)reasons the judgment of Cronin J delivered 9 June to 2017 (injunctions and orders relating to further prosecution of proceedings in the African Country B; for the father and his servants and agents to do all things to authorise removal of mother and children from any injunctive orders in the African Country B and authorise the African Country B authorities to remove them from the African Country B);
(iii)reasons for judgment of Cronin J delivered 6 February 2018 (Contempt). These reasons also refer to and incorporate parts of the reasons for judgement of Judge Burchardt of 16 May 2016;
(iv)reasons the judgment of Cronin J delivered 12 February 2018 (Contempt Sentencing);
(v)reasons for judgment of Cronin J delivered 12 September 2018 (dismissal of father's application for, inter-alia, an immediate change of residence).
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The mother and father relied upon their respective affidavits. I have examined that evidence and do not propose to repeat it in these reasons.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
62.…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
The following documents were tendered by the parties and received into evidence:

M-1 Annexures to mother’s trial affidavit filed 8 April 2019

M-2 Children’s school reports and attendance record

M-3 Letter of DHHS dated 14 February 2018

M-4 Letter from father to City of Melbourne dated … June 2019

M-5 Email to father from City of Melbourne dated … July 2019

M-6 Complaint and interim intervention order 8 March 2016 in mother’s affidavit filed 5 May 2016

M-7 The children’s school progress reports for Term 1 2021

M-8 Interim School Reports Semester 2021 and swimming lessons receipt dated 24 May 2021

F-1 Annexures of 1-22 of the father’s trial affidavit filed 29 April 2019

F-2 Childcare Centre dated 14 November 2014 (tendered by consent)

F-3 Letter from W Services Dear All dated 28 February 2020

ICL-1 Response of DHHS dated … February 2019 (s 69ZW report)

ICL-2 The DHHS s 69ZW Report dated … December 2019

ICL-3 Application to VCAT dated … September 2020 filed by the father, two case plans form 1 August 2018 and review letter of Mr T of 25 October 2019
THE WITNESSES OF THE PARTIES

The mother gave evidence and was cross-examined by the father for in excess of three days. Around lunchtime on the third day, I advised the father that he had until the end of that day to conclude his cross-examination. Considerable latitude was extended to the father and his cross-examination continued until late on the third day. Despite that, the father asserted that he had not finished his cross-examination of the mother, when he was told to stop. The father was afforded ample opportunity to cross examine the mother. He cross examined her for three days and concluded at 4.00 pm on the third day of the trial. She was also cross-examined by Counsel for the ICL until 11.00 am on the fourth day of the trial.
Despite the allegations of family violence between the parties, there is no final intervention order and the mother’s counsel did not object to the father personally cross examining the mother. The first part of the trial took place in 2019 prior to the amendments of s 102NA of the Act.
Subsequent to the amendments to the Act, when the trial resumed in June and July 2021, Counsel for the mother submitted that the provisions of s 102NA of the Act were not mandatory in this matter and had no objection to the father again personally cross examining the mother about the contents of a further affidavit sworn by her and filed on 28 May 2021. The father again cross-examined the mother about that affidavit, although he attempted to cross-examine her about matters which he had previously canvassed.
Much of the father's cross-examination was repetitive and unhelpful. The mother was responsive and gave direct answers. She impressed me as a generally truthful witness who gave credible and accurate answers about contentious issues. She did not seek to embellish her answers although there was some contradictory evidence about historical facts, such as which documents the mother had in her possession in the African Country B following the father’s removal of the children to Australia in October 2016. Where the evidence of the mother differs from that of the father, I prefer the evidence of the mother.
The father was cross-examined by both Counsel for the mother and Counsel for the Independent Children's Lawyer.
The father was frequently non-responsive, prolix and sought to provide explanations which he thought were favourable to his case, rather than directly answering questions. He was belligerent and frequently discourteous. He had a myopic view of the world and his answers were crafted in terms of his theory and perception, that it was the mother who had orchestrated the children's absences from her, and that he alone was capable of caring for the children. He attempted to give grandiose answers and long speeches. I do not accept much of his evidence as accurate or truthful. He impressed me as an experienced manipulator of facts to suit his own agenda. A common theme during the trial was that the father described all evidence which was contrary to his narrative as “false information”. Where his evidence differs from the mother's evidence and other witnesses I prefer the evidence of the mother and the other witnesses.
The father called a medical practitioner, Dr R who swore/affirmed an affidavit on 27 April 2019. She was cross-examined by both counsel for the mother and the Independent Children’s Lawyer. She made appropriate concessions and impressed me as a witness of truth. I refer to her evidence later in these reasons.
The father attempted to have a witness available for cross-examination. It was not until 1 July 2021 that the father advised the court that his witness would not be made available for cross-examination.
Ms S, Family Consultant was cross-examined by all parties. The father, during his cross-examination attempted to attack her credentials and qualifications to prepare a family report, as Ms S is not qualified as a psychologist. The father, in his Application in a Case filed 24 July 2019 sought orders that Dr Q prepare a family report. On 30 July 2019, orders were made by me granting the father leave to withdraw his application for Dr Q to prepare the family report. Ms S has been employed as a family consultant by the court since May 2010 and I do not doubt her credentials and qualifications as appropriate, which were annexed to her family report. The father’s objection to Ms S seem to me to be based on the fact that she did not support his objective for the children to be removed from their mother and placed in his care.
She gave her evidence in a clear and responsive manner and impressed me as credible and reliable. The father's cross-examination of her was over a two day period and consisted of speeches of his view of the world with very few actual questions. I refer to her evidence later in these reasons.
At my request, the two maternal child health care nurses who were involved in the family prior to the families travel to the African Country B in September 2016 were made available to give evidence and be cross-examined. Both Ms Z and Ms BB swore affidavits on behalf of the mother on 2 May 2016. Both witnesses were extremely direct and forthright and gave responsive answers to all questions. They both impressed as highly competent professionals. I accept their evidence, which I refer to in greater detail later in these reasons.
Ms V, a manager of the DHHS, who signed the second report after the investigation conducted in December 2019 gave evidence and was cross-examined. She answered questions directly and forthrightly and impressed me as a highly competent and knowledgeable professional. I accept her evidence without reservation.
THE APPLICABLE LAW
The Applicable Law
Part VII of the Family Law Act 1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse next neglect or family violence (s 60CC(2A)).
Abuse is defined in s 4 of the Act and family violence is defined in s 4AB of the Act.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 ("McCall & Clark") at [109], the Full Court said:
[109] The Act does not contain a definition of "meaningful", nor does it provide any specific criteria to assess how parents either have, or should have, a "meaningful involvement" in a child's life. It does not give guidance to the interpretation of the phrase "meaningful relationship".
At [117] of McCall & Clark, the Full Court said:
[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a "prospective" one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].

The Full Court said there were differing possible approaches to s 60CC(2)(a) of the Act. The Court preferred the "prospective approach", although the "present relationship approach" may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the "present relationship approach" and "prospective approach" as follows:
…
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ("the present relationship approach");
…
(c)the third interpretation is 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 ("the prospective approach").
In this dispute I prefer the prospective approach.
In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one "which is important, significant and valuable to the child" and the word meaningful is "a qualitative adjective, not strictly a quantitative one".
At present the children do not have a relationship with their father. The children have not seen their father since being reunited with their mother in April 2016. At that time X was three years and four months old and Y was two years old.
The family consultant (at paragraph 91 of her report dated 24 June 2019) is of the opinion that prior to reunification with their mother, it is likely that the children formed a significant relationship with their father, particularly as they did not have a relationship with their mother for approximately two years. However, it is not possible to ascertain what explanations were provided to the children for the absence of their mother. The children's relationship with their father has obviously been disrupted, not only because they have had no time with him since April 2016, but because of their current developmental ages, they are able to express and articulate their experience with him. There is of course, the possibility that the children have been influenced by the mother, because of her experiences with their father, however the children own experiences are real.
The father's love for and devotion to the children is not the subject of dispute between the parties.
I am of the view that the prospective enquiry is more meaningful in this family and that the court should evaluate the extent to which a meaningful relationship will be of advantage to the children in the future. The potential benefit of a relationship between the children and the father must be weighed against the risk he poses to the children in the context of his firm and entrenched views about:
(a)the mother's parental capacity;
(b)his inability to accept the children's significant and meaningful relationship with their mother;
(c)his unwavering conviction about the justification for his actions unilaterally removing the children from their mother from the African Country B in September 2014 and from Australia in April 2016;
(d)the impact of his actions on the children's emotional and psychological well-being.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The allegations of a long history of family conflict levelled by each party against the other were central to the cross-examination of both parties. Both parents alleges that the other parent poses an unacceptable risk to the children, and seek to have the children in their care, with no time for the father if the children are in the mother's care, and minimal time with the mother if the children are in the father's care.
The allegations of risk which the father levelled against the mother may be summarised as:
(a)she is unable to facilitate and encourage a relationship between the children and himself including:
(i)the mother has persistently negative views about the father;
(ii)she and her family terrorise the children with lies about their father;
(iii)she has limited parental capacity to care for the children;
(b)the mother has alienated the children from their father which has resulted in the children sustaining prolonged psychological abuse;
(c)she has neglected the children both in Australia and the African Country B;
The allegations of risk which the mother levelled against the father may be summarised as follows:
(a)the father has made deliberate and calculated attempts to separate the children from their mother and ensure they have no relationship with her;
(b)children have been traumatised by the father's actions abducting the children and preventing any time with their mother;
(c)he does not have the capacity to care for the children's emotional needs, which has been substantiated by DHHS;
(d)he has perpetrated family violence against the children and the mother;
(e)he is incapable of promoting a relationship between the children and their mother.
Applicable Law in relation to unacceptable risk
The High Court in M v M (1988) 166 CLR 69 (“M v M”) at [76] stated that the Family Court is not required to "resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence".
The High Court, also stated, that in appropriate cases the court can and should make such findings.
At [23]–[25] the High Court said:
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless [...]
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. […]
25.[…] In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The concept of "unacceptable risk" referred to in M v M was in the context of resolving "the wider issue" of what is in the best interests of the child.
In Stott & Holgar and Anor [2017] FamCAFC 152, the Full Court of the Family Court has recently succinctly considered the law with respect to unacceptable risk.
At [35]–[38] the Full Court stated:
35.The "unacceptable risk" test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196;(2009) 43 Fam LR 268 at [89].
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to "achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access". In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
I will consider each of the allegations levelled by both parents against the other.
Allegations of risk which the father alleges against the mother
On 26 July 2019, the father filed a Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case).
Paragraph 6 of Part E of the Notice details the alleged abuse as asserted by the father. The allegations fall into a number of broad categories, which I will address.
The mother's inability to facilitate and encourage a relationship with the father
The father alleges:
(a)the mother and her immediate acquaintances, including a group of the African Country B community, who are close to her, consistently impose on the children their negative views about the father. For example, he alleges one of the mother's acquaintances has published online derogatory material about the father, including documents in the court proceedings;
(b)the mother denigrates the father to the children, coaches them and terrorises the children with lies;
(c)the mother is exposing the children to psychological and emotional abuse and enmeshing the children in the litigation between the parents;
(d)the children are unable to have a healthy life in the environment in which they are now living, surrounded by the mother's family and the bad group of African Country B.
During the second week of the trial the father’s efforts in this regard gained momentum. The gravemente of his final submissions was that the mother’s adverse influence on the children was akin to psychological abuse and alienation of the children from their father. That abuse warranted a change of residence of the children.
During his cross-examination of both the family consultant and Ms V he sought to gain their agreement that the mother’s alleged denigration of the father to the children was psychological abuse. Both witnesses declined to agree with him. Both witnesses acknowledged that the mother’s negative views of the father could impact on the children’s views, however both were steadfast that the disruption of the children’s relationship with their father was because of his actions in removing the children from their mother.
I refer in greater detail to the evidence of both the family consultant and Ms V in these reasons.
It is not surprising that the mother is less than enthusiastic for the children to have a relationship with their father. The impact on her of the conflict which has existed between the parties since separation, and in particular the separation of her children from her, which I find was engineered by the father, could not possibly enable the mother to have any trust in the father or a desire to co-parent with him. It is entirely understandable that she is unable to actively encourage a relationship between the children and the father, and in my view, it is disingenuous of the father to suggest that her inability to do so poses a risk to the children. I find that the mother does not pose a risk to the children relating from her alleged denigration of the father.
The mother's limited capacity to care for the children including her mental health
The father has continuously asserted:
(a)the mother suffered and continues to suffer mental ill health;
(b)the mother's parental incapacity;
(c)the mother's periods of separation from the children were her choices, not impacted by him and reflect her uncaring and neglectful attitude towards the children.
Since 2014 there have been five notifications to the DHHS in relation to the family. The father lodged an appeal against the previous case planning decisions of the Department, which resulted in an investigation being reopened and the family situation being reinvestigated. The father was notified of the outcome of his appeal in October 2019 and the ensuing investigation is the subject of the DHHS s 69ZW report dated 15 December 2019.
The father has also instituted proceedings at VCAT in relation to the conduct of the DHHS. His affidavit of 23 June 2021 at paragraph 11 details that application. I refer to the evidence of Ms V.
The father alleges that the mother has suffered from and continues to suffer from mental ill health. On 24 July 2019, he filed an Application in a Case and a supporting affidavit seeking orders, inter alia, that the mother be psychiatrically assessed. The affidavit sets out the father's concerns about the mother's mental health. He refers to documents produced pursuant to a subpoena to DHHS, which were filed on 17 January 2017 and material from 2016 which raises concerns about the mother possibly suffering from untreated, undiagnosed mental illness impacting on her ability to attach to the children in care for them adequately.
At paragraph 16 of his affidavit he refers to a statement of the family consultant at paragraph 101 of her report where she expresses the opinion that the father's concerns about the mother's emotional and mental well-being postnatally may well have been warranted. He does not refer to the context in which the family consultant reaches that conclusion, namely the mother missing her community, continuing to experience language barriers, the marital relationship not providing the level of support she required and if her allegations of family violence are substantiated, then it is likely that would contribute to her emotional and mental health being compromised.
During cross-examination of the family consultant, the father was critical of her failing to recommend that the mother should be psychiatrically assessed, when she had recommended that he be psychiatrically assessed. Her response was that a psychiatric assessment of the father was warranted in the context of the decisions the father had made and that unfortunately Dr Q did not have all the information required to make his assessment.
In terms of why she did not recommend that the mother be psychiatrically assessed, it was because of the context of the mother’s experiences in 2014 including the allegations of coercive and controlling conduct, postnatal depression, missing her community, being isolated, the children being placed in child care when Y was four months of age contrary to her wishes, and when he was still being breastfed, all added to her sense of despair and explained her concerns. When she interviewed the mother on two occasions there was nothing about her functioning or behaviour which indicated she would require a psychiatric assessment. I accept that evidence as credible.
The DHHS s 69ZW report dated 19 February 2019 refers to two notifications where the mother’s mental health was raised as a concern. I note that the father initiated a review of the manner in which the Department conducted their investigations, the outcome of which is reported in the Department's letter to the father dated October 2019 and which is exhibit ICL-3.
The first such notification was between 11 July 2014 and 16 July 2014. That notification alleges that the mother may be suffering from undiagnosed and untreated mental health issues which are alleged to be impacting her ability to attach with the children and provide them with adequate care. The report concludes that whilst the mother may have been providing inadequate care at times for the children, the information came from health professionals, who were predominantly reflecting the father's comments as their source of information. The report was closed at the intake phase.
The second notification relating to the mother's mental health is the investigation between 7 May 2018 and 19 September 2018. The report notes that there was an allegation that the mother was mentally unstable and could not care for the children on her own based on when she was in a relationship with the father in 2014. The report states:
During the involvement, the mother worked well with services and secure housing was obtained. The mother enrolled the children into school and kindergarten, respectively. Staff reported no concerns for either child in the mother’s care.
When interviewed, the father denied ever committing family violence and denied isolating the mother. He maintained significant concerns about the mother’s mental health and capacity to look after the children. The mother denied all allegations made by the father.
When the maternal child health nurses were contacted about their letters expressing concern about the mother in 2014, it was confirmed that those were the initial impressions as the father had attended all appointments and was convincing in his position that the mother was unwell and incapable of caring for the children.
The father produced letters from professionals stating their concerns for the mother’s mental health and parenting that were dated 2014. Follow-up determined that when nurses later visited the home and interviewed the mother separately, they determined she was a victim of family violence. They found her willing and able to look after the children. When contacted during the investigation, the maternal child health nurse had no concerns about the treatment of the children by the father or the mother. The investigation did not substantiate harm for the children in relation to the mother having poor mental health, poor attachment, lack of willingness and capacity to look after the children .The mother and children were found to be well and warmly attached.
The protective intervention was closed, with the children remaining in the care of their mother who was assessed as willing and capable of providing for the children's daily care.
When the matter was before His Honour Judge Burchardt in the Federal Circuit Court on 16 May 2016, in the context of a successful application by the mother for the children to return from the African Country B to Australia, His Honour noted at paragraphs [21] and [22] of his reasons:
21.But what I do note is that much of what the father has to say about the mother's presumed incompetence as a parent is based on the allegedly independent assessment of one Ms Z, a maternal child health nurse, whose note dated 23 June 2014 is annexed to both the father's affidavits. But before I come to that I will go back a step, because annexure 1 to the father's first affidavit includes a written statement from the sponsor detailing the history of the marriage, which as I understand it is a document prepared in the context of the initial application for a spousal visa. What I take from this it would appear that the father is highly educated and has post graduate degrees, including a doctorate and possibly further qualifications after that.
22.The letter from Ms Z is written in terms that, on an interim basis, suggest to me that everything Ms Z said was based solely upon what the father had told her. It does not give rise to any reasonable inference that she had actually had even one word of conversation with the mother. Thus while this material is critical of the mother, the way it is written suggests to me, in terms that spring out rather from the terms of the correspondence, that it was material told by the father to her and which may be approached on the footing that it might be somewhat incomplete.

Notwithstanding the father's alleged concerns about the mother's mental health, on that day, orders were made by consent that the father have leave to withdraw paragraphs 1 to 3 and 11 of his Application in a Case. Paragraph 3 of the orders sought refer to the psychiatric assessment of the mother.
The section 69ZW report of the DHHS dated 15 December 2019 which is exhibit ICL-2 addresses the father's most recent allegations about the mother's metal health.
The report notes:
there had not been any formal mental health or parenting capacity assessment of the mother nor therapeutic assessment or treatments of the children;
the mother had visited a GP on 31 October 2019 when she attended with X;
the GP did not have any concerns for the mother, and reported her as a concerned parent who did not require a mental health assessment;
the father's alleged concerns regarding the mother had not been previously substantiated, nor were they substantiated in the current investigation;
child protection did not assess that the mother required a mental health assessment;
there were no grounds or concerns raised or observations by child protection to warrant a formal parenting assessment of the mother.
During the course of the trial I requested counsel for the Independent Children's Lawyer to arrange for Ms Z and Ms BB to be available for cross-examination, if possible. Ms Z and Ms BB are the maternal health nurses, whom the father alleges raised the mother's mental health and parental incapacity.
Ms Z is the maternal and child health nurse who worked in Suburb CC in 2014. She wrote a letter in May 2014 requesting a priority place at DD childcare centre for X and Y. She swore an affidavit on behalf of the mother on 2 May 2016.
Ms BB is an enhanced maternal and child health nurse, to whom Ms Z referred the mother and with whom she had contact between 13 August 2014 until mid-September 2014.
Annexure O-18 to the father’s affidavit of 29 April 2019 is an email he forwarded to Ms Z and Ms BB after having read their respective affidavits. That email accuses both nurses of false information in the affidavits which did not reflect their documented opinion at the relevant time, nor the opinion of other health services and child service providers. In that email, the father advised both nurses that he would be filing a formal complaint about the affidavits to the Health Services Commissioner. The email also states that there was false information provided to child protection and that he was working with DHHS to find out who passed on the false information.
Ms Z was cross-examined by the father about the contents of the letters she wrote in May and June 2014. Her evidence was:
(a)at the time she wrote the letter, the mother was very isolated, had two babies close together, did not speak the language and had no support;
(b)she described X being at risk because she thought it would help X’s social development to socialise with other children;
(c)she thought the burn to X’s arm was an unfortunate accident;
(d)during an appointment with the parents about the burn to X’s arm, the father was very hyped up and wanted to tell her all about the burn, whereas the mother appeared sad, said that she had left the iron on accidentally and that the father was cross that she had not called him straight away;
(e)at that time she did not have any concern about the father and the children although her opinion changed as a result of subsequent events;
(f)she wrote another letter dated 23 June 2014 which she described as a letter of support to enable the father’s mother to come to Australia from the African Country B to assist the mother with the children;
(g)the letter was written based on information provided by the father and was for the specific purpose;
(h)she thought the mother did not have the capacity to engage in play groups with the children as she observed her to be very flat and very quiet and thought that she required more support, which was why she was referred to the enhanced nurse (Ms BB);
(i)when she eventually was able to interview the mother without the father present, in August 2014, with an Arabic interpreter present, the mother disclosed the father’s controlling behaviour, that he was verbally and physically abusive, she was unable to meet her friends or contact her family, she had tears streaming down her face and said that she did not want to be with her husband;
(j)she also disclosed that the father wanted her to go overseas without her children and she told Ms Z that she would not prepared to do so;
(k)shortly thereafter in September 2014 the father took the children to the African Country B;
(l)in terms of the circumstances of the children attending childcare, it was the father who wanted the children to go, whereas Ms Z suggested that only X go and not Y;
(m)during the August interview, the mother said again that she did not want Y to go to childcare and that she had not seen the day care centre;
(n)after his return from the African Country B with the children in September 2014 she described the father as opportunistically dropping the children back to childcare and having a meeting with her, when he had sweat dripping from his face and the father telling her that the mother did not want to return to Australia, which Ms Z did not believe;
(o)the mother rang her from the African Country B and she would have had to have gone through the child care centre to obtain her number.
I accept the evidence of Ms Z unequivocally. It is apparent that the letters which she provided to enable the children to obtain a priority place at childcare, and for the paternal grandmother to obtain a visa to enter Australia were based on information provided solely by the father, and not any independent information provided by the mother. It was not until she was able to meet with the mother, in the absence of the father and with an Arabic interpreter that the mother was able to disclose the reality of her situation and what she perceived as the coercive and controlling behaviour of the father. Subsequent to that disclosure she most appropriately referred the mother to the enhanced maternal and child health nurse. The mother rang her when she was in the African Country B, and the only way she would have obtained the telephone number was to get it from the DD childcare centre. I also accept her evidence that the mother telephoned her from the African Country B and told her that she didn’t have a passport and that the father and children were leaving without her, to return to Australia.
Ms BB is an enhanced Maternal and Child Health Care Nurse. Ms Z referred the mother to her for additional assistance, after her disclosure of the father’s controlling and coercive behaviour. She was cross-examined by the father. He initially cross-examined her about the process of preparation of her affidavit and the fact that Y’s date of birth was incorrect. It was apparent from that cross-examination that Ms BB did not recall the process of preparation of an affidavit which she swore in 2016 and in any event that cross-examination was not of any particular assistance.
Ms BB saw the mother on four occasions on 13, 19 and 29 August 2014 and 10 September 2014. The reason for the referral was that Ms Z thought that she was depressed and she required extra support. She was not concerned that the mother was suffering low mood because the visits that she had with her reflected the reason why. Ms BB’s further evidence was:
(a)during the first visit the mother discussed family violence, during the second visit she was referred to Women’s Health, on the third visit she attended Women’s Health and an assessment was undertaken and the fourth visit was to meet a family violence case manager from Women’s Health;
(b)her notes of a communication on 29 October 2014 between herself and the mother was that she was concerned that she would not be able to see her children again and she also said that the father had threatened to kill her;
(c)she did not know, but assumed that the mother was in the African Country B at that time;
(d)on 13 August 2014 when she disclosed family violence, she agreed that she did not make a report to the police or provide her with counselling;
(e)in response to the proposition that was because she did not think it was serious or she did not believe the allegation, her evidence was she did believe the allegations but she did not discuss the referral;
(f)she agreed that between 13 August 2014 and 10 September 2014 she did not find a refuge for the mother;
(g)in response to the proposition that she had genuinely believed the mother’s allegations of family violence she would have taken action to assist her, she said that on 13 August 2014 the mother told her that the last time she had been physically assaulted was when X had burnt herself with an iron and from her perspective verbal violence and control was more of an issue than physical violence;
(h)she informed the mother that there were certain things she could do such as obtain an intervention order however she did not wish to do so;
(i)she did what she needed to do based on her assessment of the mother’s situation;
(j)her observations of the mother with Y was that she was gentle responsive and caring;
(k)in response to the proposition that she did not know Y and could not be certain that the child she saw with the mother was in fact Y, she replied that she assumed it was Y;
(l)her notes reflected that the mother wanted to go to the African Country B, but the father would not let her take the children and she would not go on her own;
(m)she was unaware that there had been a report to child protection and when she met with the mother the most pressing issue was that of family violence;
(n)when the mother called her from the African Country B she did not ask her what she required to return, but it was obvious she wanted assistance and she advised the mother that she would contact EE Centre, a service for women of cultural backgrounds to see what was needed;
(o)the mother mentioned that the father had taken her passport and visa and she did not know if her visa was valid or how to get back into Australia without a visa;
(p)the mother said she had a ticket but her husband took her passport Visa and other documents.
I accept the evidence of Ms BB that she rendered all possible assistance to the mother and that the mother described to her the father’s coercive and controlling behaviour whilst she was living in Australia. I also accept that the mother telephoned her from the African Country B and she arranged for assistance to enable the mother to return to Australia. The father during the course of the trial seemed to make much of the contradictory evidence of the mother as to whether or not she was stranded in the African Country B with a return ticket. The primary issue from my perspective is that I find the father did not tell the mother of his intention to remove the children from the African Country B and return them to Australia. I also accept that he took her passport and that he cancelled her Visa in June 2014 without her knowledge or consent.
In his affidavit filed 23 June 2021 at paragraphs 10 and 14 the father deposes to being further dissatisfied with the conduct of the DHHS investigations notwithstanding the review which was conducted in December 2019. The application to VCAT dated 25 September 2020 filed by the father is exhibit ICL-3. In September 2020 he applied to VCAT to review all the decisions made by child protection including the s 69ZW reports ordered by this Court. According to the father, there have been several hearings at VCAT and the proceedings have yet to be finalised. He asserts that all decisions made by child protection were based on false information, lies and falsified documents supplied to them to mislead this Court. Furthermore, because the s 69ZW reports are subject to review by VCAT, all the s 69ZW reports supplied to the Court are invalid as is the family consultant’s report because it heavily relied on false information from the s 69ZW reports, which the VCAT will review in future hearings.
Because the VCAT proceedings are still outstanding, I requested counsel for the Independent Children’s Lawyer to arrange for the DHHS manager who signed the second report after the review in December 2019, Ms V to be available for cross-examination, particularly to enable the father to put to her his complaints about the process undertaken by DHHS and the information relied upon in reaching its decision. The father did not seem to appreciate that the VCAT application was in relation to procedural issues and that tribunal did not substitute its own findings for DHHS. It seemed to me that the motivation for the VCAT proceedings was for the father to require yet another investigation by DHHS because he did not agree with the second report of 15 December 2019.
Subsequent to the review of the DHHS initial investigations, which was conducted by Mr T in October 2019 and which is exhibit ICL-3, the DHHS conducted a second investigation which was the subject of a report signed by Ms V, a Manager, on 15 December 2019. The second report is exhibit ICL-2 in this proceeding.
That report stated as follows:
(a)both parents are of African Country B heritage and are native Arabic speakers;
(b)there have been five reports made to child protection between 2014 and 2019;
(c)an appeal by the father of a previous case planning decision has led to the most recent investigation being reopened and reinvestigated;
(d)the father was concerned that the previous child protection intervention had not accorded sufficient weight to the to his concerns for the mother’s mental health and her parenting ability and that there had been a significant delay in preparation of the report;
(e)the Department agreed:
(i)the concerns about time delay was substantiated;
(ii)the decision contrary to the father should not have been made prior to him being interviewed;
(iii)there was no formal mental health or parenting capacity assessments of the children’s mother;
(iv)no therapeutic assessments or treatment of the children were in place;
(v)no arrangement for the father to recommence time with the children.
(f)subsequent to the review application by the father the Department determined that a further investigation would be conducted including contacting a range of services who had had current or past contact with the family and that the children the mother and father would be reinterviewed;
(g)there were no concerns noted for the children’s well-being during their separate interviews with X reporting that she did not want contact with her father, and Y being more confused about his father talking about a good father and a bad father;
(h)both children had positive reports from the school regarding their presentation and progress and the school did not have any concerns for the children, reporting them to be delightful, well presented and well behaved children;
(i)the school did not have any concerns in relation to any contact with their mother;
(j)the mother’s most recent visit to a GP was on 31 October 2019, when she attended with X who reported a pain in the chest. There were no concerns noted for X, nor any concerns for the mother who was reported to be a concerned parent and not assessed as requiring a mental health assessment;
(k)the mother was interviewed and reported that the periods of absence from the children were due to the actions of the father;
(l)she categorised the marital relationship as being one of control with significant restrictions imposed on her;
(m)the mother was concerned about what the father would say to the children and he and that he may attempt to remove them from her care, if contact were resumed;
(n)the father was interviewed and expressed his concern for the mother’s well-being and ability to care for the children;
(o)he continued to express his concerns without recent evidence of the mother’s alleged ill-health;
(p)the father was not welcoming of the child protection report that the children presented well, looked healthy, were regularly attending school and there were no concerns for the welfare of the children expressed by the school who reported that they were progressing well;
(q)the father continued to focus his concerns on the mother and to report that the mother’s periods of separation for the children were her choices, not impacted by him and reflect the actions of a neglectful and uncaring mother;
(r)the investigation confirmed some of the chronology and concern surrounding the removal of the children from the mother;
(s)it was proposed that the current child protection investigation would close noting the proceedings in the family law court.
In relation to protective assessment, the report states:
(a)there have been four child protection reports and one protective intervention between 2014 and 2019 made to child protection for the children X and Y;
(b)the alleged areas of concern reported to child protection were regarding the mother’s mental health, her lack of capacity to provide care and poor supervision of the children;
(c)the concerns relating to the father centred around family violence and restricting the mother’s access to the children;
(d)the concerns of the mother have not been substantiated previously nor were they substantiated in the current investigation;
(e)child protection did not assess there was any further assessment required of the mother’s mental health and in particular arising from visit to the GP on 31 October 2019, the GP did not believe the mother required a mental health assessment;
(f)there were no grounds of concerns raised by child protection to warrant a formal parenting assessment of the mother;
(g)the father continued to deny the allegations of family violence and control over the mother and asserts his separation from the children was due to the mother’s actions;
(h)it is apparent that the father was instrumental in removing the children to places where the mother was unable to have contact with the children and thereafter frustrated her efforts to have contact with them over a long period of time;
(i)on the last occasion when the children were in the father’s care he removes them to the African Country B contrary to an interim Family Court Order, and presumably to prevent them having contact with their mother;
(j)neither parent expressed an openness to share the parenting of the children or promote contact with the children with the other parent;
(k)the mother was open to further assessments of herself if ordered by the court and agreed to pursue counselling to the children now that they are more settled;
(l)the father expressed a willingness to engage with services in order to have contact with the children;
(m)the Department has not pursued a plan to commence or observe contact between the children and their father, because of the interim intervention order and listening to the concerns of X who at that time did not want contact with her father;
(n)the children have been in the mother’s care since returning to the African Country B where she has lived at an undisclosed address;
(o)there have been no concerns for the care the children with their mother and the Department recommends that they remain in their mother’s sole custody;
(p)the Department did not find issue with the father’s physical care of the children noting that child protection has not observed the father with the children and past accounts and professionals did not raise any concern;
(q)if the father is allowed contact with the children, the Department recommends that should be actively supervised by an Arabic speaking professional in an independent centre to ensure the mother is not denigrated to the children and there are no attempts made to locate the mother’s residence by discovering details of school and that there are no attempts to follow them home to learn their whereabouts;
(r)the Department supports the continuation of the travel ban of the children to prevent further abductions which would add to further instability in their lives.

In terms of the allegations of alienation, the family consultant considered both in the report and during her evidence in cross-examination that the experiences of the children were lived experiences and that the children had not been unduly influenced in this regard. I refer to this earlier in my reasons.
The father’s capacity to provide for the needs of the children was addressed by the family consultant both in the family report and during cross-examination. At paragraph 92 of the family report, she clearly identified that the father loves the children, misses them and is concerned for the welfare. However, what is in dispute between the parties is whether the father’s actions in unilaterally removing the children from their mother on two occasions, the first when he removed the children from the African Country B to Australia in September 2014 and the second when he removed the children from Australia to the African Country B in April 2016, can be justified.
Ms S, after interviewing the father concludes that he has little regard if any of the impact of his actions on the children’s emotional and psychological well-being and also on their mother, and to date has not demonstrated any willingness or capacity to take responsibility for his behaviour. Instead, he seeks to blame the mother as being primarily responsible for causing physical and emotional harm to the children because she allegedly abandoned neglected and subsequently kidnapped the children. He is unable to acknowledge that orders made in the Australian courts provide for the children to live with the mother and that the mother was acting in accordance with those orders.
The father’s presentation during the trial and his continual blaming of the mother and absolving himself from any responsibility for the abductions and abandonments of the children and separation from their mother, demonstrates that, to this day, he is still unable to acknowledge his part in the tragic and regrettable events for these children.
I have no confidence that the father has any capacity to promote and facilitate a relationship between the children and their mother. I accept that he would seize any opportunity to undermine the children’s relationship with their mother by continuing to denigrate her and deliberately distort the truth of their separation from their mother and his deliberate actions to achieve his aim. I find that the father has no capacity to provide for the emotional and intellectual needs of the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both parents are of African Country B heritage and speak Arabic. There was little focus during the trial whether or not either parent was capable of providing the children with appropriate cultural traditions and heritage. The children are bilingual and have lived with their mother whose primary language is Arabic for the last five years. They have attended an English-speaking primary school from when it was appropriate to commence school.
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The factors relevant to this consideration have been addressed in my reasons under the heading of the parental capacity of the parents to provide for the children’s needs, including emotional and intellectual needs.
Any family violence involving the child or a member of the child’s family
I have referred elsewhere in these reasons in detail to the allegations of family violence, specifically coercive and controlling behaviour of the father perpetrated on the mother.
If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter
In March 2016, shortly after the mother’s return from the African Country B to Australia, the father obtained and interim intervention order against the mother. The application for a final intervention order remains outstanding and there are no relevant inferences which can be drawn from the order, save that the timing of the order leads to the conclusion that it was the father’s intention to prevent the mother spending time with the children upon her return from the African Country B in to Australia in February 2016.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
During these and previous proceedings in this Court the father has been focused on his allegations that the Solicitor for the mother has engaged in fraudulent conduct. He has referred the mother’s solicitor to the Legal Services Commissioner on multiple occasions and on each occasion there has been findings of no fault in the conduct of the mother’s solicitor and his complaints have not been upheld. His earlier complaints are referred to in the judgement of Judge Burchardt in November 2016 and Justice Cronin, neither of whom made findings as sought by the father.
The father’s latest allegations were the subject of an Application in Case and affidavit filed by him on 24 July 2019 and are referred to in an affidavit filed by him on 23 June 2021. The father has alleged that the solicitor has falsified documents which have been supplied to both the Federal Circuit Court and this Court. He has also asserted that the mother’s lawyer has attempted to mislead this Court by preparation of the affidavits of Ms Z and Ms BB, which he alleges are false information. At paragraphs 18 and 19 of his affidavit of 23 June 2021 he deposes that he has referred his allegations against the mother’s lawyer to Victoria Police for investigation and that he is awaiting an update from Victoria Police. It is not clear what is happening with Victoria police’s investigation. It was a common theme throughout the proceedings that the father described any evidence which did not accord with his view of the world as “false information”.
His Application in a Case filed in July 2019 also sought orders seeking the discharge of the Independent Children’s Lawyer and that a further family report be prepared by Dr Q.
Orders were made by me on 2 August 2019 granting the father leave to withdraw his application to discharge the Independent Children’s Lawyer and his application for a further family report. Despite that, he maintained throughout the course of the proceedings that the family consultant was not a psychologist and that the children should be assessed by a psychologist to ascertain the extent of the asserted trauma to which they had been exposed, namely separated from their father for many years.
As referred to earlier the father has also made complaints against Ms Z and Ms BB, which, as deposed to in the June 2021 affidavit, he appears to have escalated to making complaints to Victoria Police about false information which they deposed to in the affidavits.
The father has sought multiple reviews of the DHHS investigations, because the conclusions do not accord with his view of the world. At paragraph 11 of the June 2021 affidavit he deposes to having applied to VCAT in September 2020 seeking yet another review of the investigation process undertaken by the Department. I refer to this application earlier in these reasons and in particular in the context of why it was necessary for Ms V to give evidence in this proceeding. He also lodged a complaint against a Contact Centre which refused his application.
There are also outstanding proceedings in the Magistrates Court where the mother has sought a final hearing of the intervention order obtained by herself and the children. The final hearing is fixed to take place in November 2021, for three days, however due to the COVID-19 pandemic that may be further adjourned.
In addition to his complaints and legal proceedings in Australia there are still proceedings in the African Country B. Proceedings were initiated by the father involving the mother where there are allegations that the mother was negligent in her care of the children when in the African Country B between 2014 and 2016. It is difficult to ascertain the exact nature of the proceedings however they are ongoing.
In an affidavit filed by the mother on 28 May 2021 she refers to the ongoing nature of proceedings in the African Country B and in another Country B Court which has resulted in an Interpol warrant of arrest being issued against the mother because she failed to appear in proceedings in the African Country B on 25 November 2020. The case against the mother was commenced by the father in the African Country B in 2018 following the social media campaign and newspaper articles which preceded the mother’s release from prison.
The mother deposes in her affidavit that her lawyer in the African Country B sought that she be permitted to appear electronically in that proceeding as she was unable to travel to the African Country B in October 2020 due to the travel restrictions arising from the COVID-19 pandemic. She further deposes that she did not want to travel to the African Country B without the children and they are the subject of a watch list order. Remarkably, the father was in the African Country B at the time, which he later explained as travelling to marry his new wife and honeymoon with her, and the mother alleges that the father and his lawyer did not consent to her appearing electronically. As a result of her failure to appear the arrest warrant was issued. The father denied during cross-examination that it was he and his lawyer who would not consent to the mother appearing electronically.
According to the father, all of the above complaints and referrals to regulatory bodies and investigations by the police leads to the conclusion that the evidence adduced by the mother was based on false information and has therefore infected the whole of her evidence put before the court. Needless to say, I do not accept that submission and have made findings about the veracity, truth and credibility of all witnesses in the proceedings.
From the mother’s perspective, all of the complaints are relevant in terms of whether or not the father will accept any decisions of this court. If he were to spend time with the children, it is submitted, the father would seize on every single opportunity to make further complaints to regulatory bodies and welfare authorities, which would probably involve the children and most certainly in ongoing investigations and further proceedings. That is amply demonstrated by the ongoing proceedings in the African Country B, which have no utility in terms of the arrangements for the children, but which are continuing to be pursued by the father.
PARENTAL RESPONSIBILITY
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
In this matter in the context of my findings that the father has engaged in family violence, specifically coercive and controlling behaviour to such an extent that the presumption of equal shared parental responsibility does not apply.
On 14 November 2016, Judge Burchardt made orders for the mother to have sole parental responsibility.
It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. However, in the context of the father having had no involvement in the children’s lives or decision-making since 2016 and my findings as to the removal of the children from their mother in September 2014, frustrating her return to Australia and his wilful removal of the children to the African Country B in 2016, it is an irresistible conclusion that the mother should have sole parental responsibility for the children. It is impossible to consider any situation where the mother who has been subjected to the father’s coercive controlling conduct should be required to consult or communicate with the father about long-term decision-making for the children. She has made decisions without the father’s input since 2016 and the evidence of the family consultant is that the children are thriving in her care and that she is a devoted and capable parent. I have no hesitation in making an order that sole parental responsibility should be vested in the mother, particularly if orders are made providing for the father to have no time or contact with the children in the future. I intend to make an order that the mother have sole parental responsibility.
CONCLUSION
In his final submissions, Counsel for the mother submitted that the orders proposed by the mother lead to the inescapable conclusion that those orders offer the mother and the children the maximum possible protection from the father and his actions and to least disrupt the children’s lives. I agree with and accept that submission.
He urged the court to make ten critical findings as follows:
(a)the father had engaged in family violence towards the mother after the birth of X of a serious nature, by reason of his coercive and controlling conduct;
(b)there were problems in the relationship but no final separation prior to August 2014 in the African Country B;
(c)the father notified the immigration authorities in June 2014 that the marriage had broken down without the mother’s knowledge, and with the intention to subsequently abandon her in the African Country B and remove the children to Australia;
(d)he abandoned the mother in the African Country B without her passport or a Visa as he knew she could not easily return to Australia and deliberately removed the children from her and severing the relationship between the children and their mother without regard to the impact on the children;
(e)when he returned to Australia in September 2014 he did not take any steps to assist the mother to return, which she eventually did;
(f)upon the return of the mother to Australia in 2016 the father obtained an intervention order against her and when he was served with the mother’s parenting application to the Court, he immediately took the children to the African Country B to put them beyond the reach of the Australian courts;
(g)when the father returned to Australia, he frustrated the return of both the children to Australia and the mother’s ultimate return to Australia;
(h)after the mother’s return to Australia the children have lived in a stable and happy life and were thriving in the absence of the father;
(i)the father poses an ongoing threat to the children stability and welfare because of his attitude towards the mother;
(j)the orders proposed will minimise the risk to the maximum extent possible to protect the children.
He further outlined the evidence during the course of the trial to substantiate the findings which I should make. I agree unequivocally with the submission of counsel for the mother and indeed have made those findings in these reasons.
The principal issue in this matter is the conflict between the two primary considerations of the Act. It was submitted that the father would have something positive to offer the children in terms of a future relationship with him if he did not have such fixed views or pose such a risk to the psychological safety of the children. There was no evidence that the father had any capacity for insight or reflection upon the damage he has rendered to the children by separating them from their mother in such appalling circumstances, and the situations he has deliberately engineered and manipulated to ensure the protracted separation between the mother and the children.
Regrettably, the damage he would subject the children to outweigh any benefit a relationship with him could offer the children. The evidence of Ms S was compelling in this regard and the father’s cross-examination did nothing to change her view nor convince me that the children could benefit from a future relationship with him, particularly in the context of the children having thrived in the intervening five years since he has had any relationship with them.
The father’s conduct in complaining about every single witness who did not share his view of the world, including complaints about a contact centre, referring the two maternal child health care nurses to the Health Services Commissioner, multiple complaints about the procedural fairness of the investigations by the DHHS culminating in an application to VCAT and his multiple complaints against the mother’s solicitor to the Legal Services Commissioner and Victoria Police lead me to the inescapable conclusion that the father will never be satisfied with orders which provide for the children’s relationship with their mother to continue.
The court cannot have any confidence that the father would refrain from interrogating the children, gathering further evidence, making further complaints and notifications to child protection agencies, all of which would necessarily involve the mother and the children in major disruption, investigation and ongoing litigation.
The children and the mother have a right to live their lives without being subjected to disruption, litigation abuse and coercive control. Any orders providing for the father to have input into the children’s lives or anything to do with the children would only incite his relentless campaign against the mother.
Counsel for the Independent Children’s Lawyer submitted that the father when cross examined about his conduct in removing the children from the mother in September 2014 and again in April 2016 and putting the children beyond the jurisdiction of this court, was non-responsive and tangential and attempted to change the subject. That was so despite the findings of both Justice Cronin and Judge Burchardt and in particular the contempt proceedings where Justice Cronin found him guilty of contempt. The father had failed to acknowledge the impact on the mother and children of his deliberate actions.
In contrast, the mother was caring for the children who appeared healthy and well cared for, when interviewed by the Independent Children’s Lawyer and the school reports supported the mother’s evidence that the children were doing well and progressing appropriately at school.
Any evidence to support the father’s allegations of neglect and incompetency levelled against the mother, was based on what the father had told various witnesses, and not what the mother had independently told them. His allegations of neglect were historical in nature and emanated from a time when the mother may have had low mood or depression following the birth of two children very close together, in circumstances where she was isolated and had minimal support.

The historical actions of the father demonstrated that he will not comply with any orders pertaining to the children with which he does not agree. Indeed, he only complied with the orders of Justice Cronin in the contempt proceedings, when he faced imprisonment for failing to do so.
Accordingly, the court cannot have any confidence that the father would:
(a)comply with any conditions or restrictions as to how he would deal with a contact centre or professional supervisor; and
(b)refrain from making new complaints about the mother’s care of the children including complaints levelled against a supervisor.
It was submitted that the father would find some reason to make further notifications to DHHS or involve the police and the court could not have any confidence that he would not find a way to undermine the relationship between the children and their mother all of which would undoubtedly lead to further investigations and proceedings.
The court should make orders ensuring that the mother’s role is protected and that she and the children be permitted to remain settled in Australia in circumstances where she and the children have experienced unimaginable trauma as a result of the father’s actions. There is a risk of deleterious impact on the mother if he were to spend any time with the children as she would be understandably highly fearful of the father absconding with the children.
The children rely on their mother for the day-to-day care and barely have a relationship or recollection of their father. X is afraid of her father because of her experiences and as Y has almost no recollection of his father he would be introduced to spending time with a virtual stranger. There is no utility in identity contact, as Y does not even know him.
It was apparent from the father’s material and cross examination of various witnesses that he does not knowledge any part in his past wrongdoing, nor can he concede that the mother is a competent and caring parent. The father’s statements which attempt to betray him as conciliatory and cooperative are a veneer, in the court can have no confidence in his real intent, which is to remove the children from their mother.
In the father’s final submissions he still maintained that the children remaining with the mother posed an unacceptable risk of harm because of the mother’s psychological abuse of them. The only way the children could have a relationship with both parents was for the children to live with him and spend time with the mother. The father somehow managed to obtain permission from the Australian government to travel to the African Country B during the COVID-19 pandemic and marry and honeymoon with his new wife in the African Country B. He proposes that eventually he will obtain the appropriate Visa for his new wife to join him in Australia and that she would be live in his household with the children, despite the fact that the children have never met the new wife.
Doing the best I can, in his submissions the facts justifying the orders he sought are:
(a)he lives in Australia and has done so for many years;
(b)the mother had agreed the father had helped her find her brother;
(c)he was surprised to hear after five years the sad allegations concerning the children;
(d)the case had been complicated by the conduct of the lawyers as explained in his affidavit of 10 May 2016;
(e)he was surprised at the submissions about the credibility of the mother, where he has a the list of false information in his affidavit;
(f)he communicated with the mother when he and the children were in Australia and she was in the African Country B;
(g)he did not cancel the mother’s spousal visa in June 2014, it was cancelled in October 2014;
(h)there is no evidence that he was controlling;
(i)there was no reason why he would put the children in child care which cost him $220 a day;
(j)she could have immediately returned to Australia and had told the two nurses that she had a ticket, but her evidence during cross examination, was that she did not have a ticket;
(k)the children were sick in the African Country B and therefore they could not stay and his decision to return to Australia was because the children were sick;
(l)the children are at an unacceptable risk of harm because of the mother’s psychological abuse;
(m)he wants the children to live with him because of the mother’s denigration of him to the children and the consequential psychological abuse;
(n)he wants an injunction to prevent the mother’s friends from discussing the case on social media;
(o)all of the fabricated documents relied upon by the mother have caused trouble for him;
(p)the applicant’s submissions show her misconduct and the fact that the Independent Children’s Lawyer did not comply with his obligations including making false submissions to Justice Cronin that if the father went to the African Country B he would not return to Australia;
(q)he has a right to recover his costs because of the lies which have been presented to the court in the proceedings have been drawn out by the applicant’s lawyer who has received instructions from the people around her;
(r)he is confident that if the children live with him he could co-parent with the mother;
(s)even if the mother has done things wrong in the past he will forgive her provided she agrees not to do it again;
(t)the effect on the children of being separated from their mother would give the children an opportunity to change their views and restore their relationship with their father, which would stop X being frightened;
(u)it would be hoped that the mother would recognise the consequences of the significant abuse the children have been subjected to.
In order to minimise the risk of future proceedings, it was submitted that the children should live with the father as he would obtain psychological intervention which would mitigate the risk of psychological abuse of the children. The father would also ensure that the children would know all about the maternal family and would have a relationship with other maternal relatives as well as the paternal family, which would give them the best possible chance to forget the past and a positive future.
In his final submissions, the father proposed that he and the mother could effectively have a co-parenting relationship and future prospects of cooperation and that there would be no need for future court proceedings. His final submission was that he looked forward to working cooperatively with the mother. In the context of the history of this dispute and all the acrimony and devastation wrought on this family by the actions of the father, it is almost beyond comprehension that the father could even contemplate such a submission.
I do not accept the submissions of the father for the reasons set out in these reasons and in the context of my findings about the evidence of the father and all other witnesses in the proceedings. The father’s submissions fly in the face of any of the objective independent evidence and my acceptance of the credibility of the mother’s evidence as opposed to the evidence of the father, which generally I do not accept.
Such submissions only highlight and demonstrates to me that the father has absolutely no insight or capacity to reflect on his conduct. I have no doubt he fervently believes his own narrative, however I do not and neither do any of the relevant witnesses. The father is a sophisticated and experienced manipulator of facts and truth to suit his own narrative.
For the reasons articulated herein, I find that the father poses an unacceptable risk to the children and that there are no circumstances such as supervision or therapeutic intervention which would ameliorate that risk, so as to make orders for the children to spend time with their father. I have reached that decision after careful consideration of all of the evidence referred to in these reasons. The father has been the architect of his own destiny and his past actions have had no regard whatsoever to the consequential effect on the children or their mother.
I accept the submissions of both Counsel for the mother and Counsel for the Independent Children’s Lawyer. I intend to make orders as sought by the mother and the Independent Children’s Lawyer that the children remain living with their mother, she continue to have sole parental responsibility and that the children spend no time with their father.
The father also sought orders that I make injunctions pursuant to s 121 of the Act restraining unidentified members of the African Country B community from publishing any matters to do with this dispute on social media or otherwise. There was insufficient evidence to warrant such an injunction and in any event I cannot make orders against unidentified people, who are not a party to the proceedings and have not been accorded procedural fairness. However, I have confidence that the mother will not do so nor encourage her friends and acquaintances to do so.

I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 2 September 2021

File number(s):	MLC 2195 of 2016
Judgment of:	WILLIAMS J
Date of judgment:	2 September 2021
Catchwords:	FAMILY LAW – PARENTING – Application by the father for two children to live with him and for an order for equal shared parental responsibility, notwithstanding he had spent no time with the children for many years – Held the mother should have sole parental responsibility for the children and they should remain living with their mother – Dispute about whether the father had abandoned the mother in the African Country B in September 2014 with the intention to remove the children to Australia – Whether the father returned the children to the African Country B in April 2016 to put them beyond the jurisdiction of the Australian courts – Whether the father frustrated the return of the mother from the African Country B to Australia – Allegations by both parents that the other parent posed an unacceptable risk of harm to the children – The mother alleged coercive and controlling conduct and removal of the children from her care by the father and the father alleged parental incapacity and mental health issues of the mother – Held that the father was an unacceptable risk of harm to the children as alleged by the mother and the mother does not pose an unacceptable risk to the children and is a committed and competent parent – Whether it was in the best interests of the children to spend time with the father in the context of the finding of unacceptable risk of harm – Held there should be no time between the children and the father and there were no conditions or circumstances which would mitigate the risk the father posed to the children
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 68B, 68Q, 69ZW, 122AA
Division:	Division 1 First Instance
Number of paragraphs:	287
Date of hearing:	30 July–2 August 2019, 9 December 2019, 12–13 March 2020, 28 June – 1 July 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Goddard
Solicitor for the Applicant:	Ebejer And Associates
Counsel for the Respondent:	In Person
Counsel for the Independent Children's Lawyer:	Ms Patterson
Solicitor for the Independent Children's Lawyer:	Taft Lawyers

MLC 2195 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MILLAR Applicant
AND:	MR OAKLEY Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	2 SEPTEMBER 2021

M-1	Annexures to mother’s trial affidavit filed 8 April 2019
M-2	Children’s school reports and attendance record
M-3	Letter of DHHS dated 14 February 2018
M-4	Letter from father to City of Melbourne dated … June 2019
M-5	Email to father from City of Melbourne dated … July 2019
M-6	Complaint and interim intervention order 8 March 2016 in mother’s affidavit filed 5 May 2016
M-7	The children’s school progress reports for Term 1 2021
M-8	Interim School Reports Semester 2021 and swimming lessons receipt dated 24 May 2021
F-1	Annexures of 1-22 of the father’s trial affidavit filed 29 April 2019
F-2	Childcare Centre dated 14 November 2014 (tendered by consent)
F-3	Letter from W Services Dear All dated 28 February 2020
ICL-1	Response of DHHS dated … February 2019 (s 69ZW report)
ICL-2	The DHHS s 69ZW Report dated … December 2019
ICL-3	Application to VCAT dated … September 2020 filed by the father, two case plans form 1 August 2018 and review letter of Mr T of 25 October 2019