Misra & Quinn - [2022] FedCFamC2F 238

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Misra & Quinn [2022] FedCFamC2F 238

File number(s): BRC 10218 of 2020

Judgment of: JUDGE VASTA

Date of Judgment: 10 March 2022

Catchwords: FAMILY LAW – Child – contact – family violence – residence – child’s best interests – sole parental responsibility – behaviour at contact centre - no contact

Legislation: Family Law Act 1975 (Cth) s 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65C, 65D, 65DAA 65DAB, 65L, 121

Division: Division 2 Family Law

Number of paragraphs: 225

Date of last submission/s: 17 February 2022

Date of hearing: 15,16 and 17 February 2022

Place: Brisbane

Counsel for the Applicant: Ms Barnes

Solicitor for the Applicant: Hofstee Lawyers

Counsel for the Respondent: Mr Hughes

Solicitor for the Respondent: Jurgensen Horne Lawyers

Counsel for the Independent Children's Lawyer: Mr Carlton

Solicitor for the Independent Children's Lawyer: Legal Aid Queensland
ORDERS

BRC 10218 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MISRA

Applicant

AND:
MS QUINN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

10 MARCH 2022

BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.All previous orders be discharged.
2.That the mother have sole parental responsibility for the child X born 2015 (“the child”).
3.That the child live with the mother.
4.The child spend no time with the father.
5.That the father be restrained and an injunction hereby issue restraining the father by himself, or his servants and agents from:
(a)Directly or indirectly contacting the mother, the child or any other children of the mother;
(b)Attending any place of employment of the mother;
(c)Attending any residence at which the child lives with the mother;
(d)Attending at any time, any school or any outside school hours care, at which the child attends.

6.The Australian Federal Police are requested to continue to maintain the name of the child X born 2015 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia until Order otherwise.
7.Until otherwise ordered, the father Mr Misra born 1989, and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born 2015 from the Commonwealth of Australia.
8.Pursuant to section 121 of the Family Law Act 1975, the mother be granted leave to publish a copy of these reasons for judgments and the family report produced in these proceedings to any educational institution attended by any child of the mother and medical professional giving therapeutic treatment to any child of the mother.
9.Pursuant to section 121 of the Family Law Act 1975, the father be granted leave to publish a copy of these reasons for judgments and the family report produced in the proceedings to any medical professional giving therapeutic treatment to the father.
10.That the Independent Children’s Lawyer be discharged.

NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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

This is an application for parenting orders. The father, Mr Misra, was born in 1989 in Country B to Indian parents who lived in Country B for employment reasons. He left Country B in his teens and lived in India with his siblings. He came to Australia in his early 20s and has lived here ever since. The mother, Ms Quinn, was born in 1986 in Australia and has lived here all her life.
The parents began a relationship in 2013. They did not ever cohabitate but spent a lot of time in each other’s homes. Both parents described the relationship as “on and off” but it is common ground that, whatever the nature of the relationship, it ceased around January 2018.
There is one child of the relationship, a daughter, X, who was born in 2015. The mother has another child, Y, who was born in 2007. Y lives predominantly with the mother who is on good terms with Y’s father, Mr C.
The mother married Mr D in 2020 and they have a daughter, Z who was born in 2021. X lives with the mother, Mr D and her two half siblings, Y and Z. X has always lived with her mother.
The father has recently re-partnered with Ms E. They do not cohabitate and maintain separate residences but spend every night together.
The Parental Relationship
There is no doubt that the relationship between the parents was punctuated by domestic and family violence. The parents blame each other for the violence and both have submitted videos of incidents that they say corroborates their story. I have looked at these videos and considered what the parties have said about the incidents.
The most serious incident occurred in January 2020. To truly have an understanding of that incident, one must have an appreciation of the relationship, and what each party says about those acts of violence.
Relationship Contentions of the Father
The father contends that, on 4 October 2014, he “advised” the mother that he “no longer wished” to be in a relationship with her as he “didn’t want to put up with her abusive behaviour”. The father contended that as a result of what he told the mother, the mother assaulted him, abused him verbally, threw his things out and smashed his car’s windscreen.
The father filmed the mother throwing the possessions out and swearing at him.
The father contended that, on 3 September 2015, he told the mother that he was concerned about her smoking whilst pregnant. He said that the mother then “verbally assaulted me”. The father filmed this incident.
The father contended that, in 2015 (two days after X was born), the mother assaulted the father by biting him on the back, and that this had occurred in front of the newborn child. He claims that he had his personal items thrown out. He said that he rang the police and they served the mother with a notice to appear in court for common assault. (There was no evidence that the mother had any court appearance for this incident.)
The father contended that the maternal grandfather (“the MGF”), Mr G, assaulted him on 27 December 2016. He said that he was punched in the face by the MGF because he asked if he could take X out to lunch. He said that police took out a DVO against the MGF naming him as the aggrieved.
Apart from these specific incidents, the father said that he was witness to the mother swearing, yelling and screaming which was directed at him as well as to her children.
Relationship Contentions of the Mother
The mother said that, during the relationship, the father always wanted to know who she was talking to or where she was going. She said that he would tell her what she was allowed to wear. She said that he would frequently call her names such as “white scumbag” and “cunt”.
The mother contends that the father would come to her residence, without her knowledge, and place his mobile phone under the garage door and take photos of inside the garage. He would then forward those photos to her. She said that this made her feel intimidated and violated. She said that, during the relationship, it was not uncommon for the father to slap her across the face if she did not have food ready as he expected.
The mother claimed that the father placed some form of tracking device on her work car. She infers this because he would often show up at places where she was, including locations to which she had never previously been. She said that she had seen a tracking device in the father’s shed.
As to the events of 4 October 2014, the mother gives a totally different version. She said that the father had been living in a house with another woman. This other woman had evicted the father. The father drove to the mother’s place when the mother was not there, and smashed a small window so as to let himself in the house. He then started to move his possessions into the mother’s house. The mother said that she came home and found the house in a mess. She said she gathered up the possessions of the father and threw them into the front yard. She implied that she had smashed the father’s windscreen in retaliation for his having broken her window.
She said that, when she was seven months pregnant with X, she asked the father to leave her house. She said the father became angry and broke a vase upon which she subsequently cut her foot. It is not known whether this event occurred before or after the father filmed her in September 2015 (or whether this incident happened as a result of the filming).
The mother said that, in September 2016, the father had parked his car in front of her garage so that she could not leave in her car. He then tried to remove X from her car and in doing so punched in a rear window. She said that this broke the glass and it caused him to sustain an injury to his hand.
The mother said that in January 2017 she applied for a protection order. A DVO was put in place which named her as the aggrieved and the father as the respondent. That order expired in 2019.
The mother said that, in or around 2017, the father came to her house uninvited and she and her family were outside the house. The mother claims that the father locked them out of the house so that he could go through her mobile phone which had been charging inside.
The mother said that, in May 2017, the father again came to the house uninvited. She said that she hid inside with X and when she did not allow the father to enter, he hit the window scaring X and making her cry. The mother videoed this incident and I have seen that video. The father was charged with a breach of the domestic violence order in relation to this incident and was given a good behaviour bond by the Court.
The mother also detailed an attempt by the father, in May 2018, to enter her home without permission. She claims that he punched through the glass sliding doors at her house attempting to enter the property.
The mother said that there have been three occasions where the father has forcibly removed X from her kindergarten. On each occasion, the mother said that the kindergarten was forced to report the matter to the police. On each occasion, the police returned X to the mother. The first occasion was in April 2017 when X was attending H Kindergarten at Suburb J. The second occasion was in May 2018 when X was attending K Kindergarten. The third occasion was on 19 July 2019 when X was attending L Kindergarten at Suburb M. The mother said that on that last occasion, she did not know that X had been taken by the father until the police contacted her.
The mother applied for another protection order against the father in July 2019 and a temporary order was made. The mother withdrew the application upon being told by the father that he was relocating overseas. After the mother withdrew the application, the father did not relocate.
Baptism
The diametric opposition of the positions of the mother and father are perfectly illustrated in what both of them say about the baptism of X. The father said that he organised the baptism and made repeated attempts to get the mother to attend the baptism. The mother said that the father would not allow her to attend the baptism because she would look “dirty” in the photos which she says is a reference to her tattoos. I do note that the mother has quite a number of tattoos over her body.
Emails
The manipulation by the father is laid bare in emails that he sent to the mother from July 2019 to September 2019.
On 2 July 2019, there are a series of emails between the father and the mother where the mother proposes that the father have X each alternative Friday and Saturday nights returning the child about midday on the Sunday. The father agreed to that proposal. The father then asks the mother whether she and her male friend “are a couple” so that he knows “how to approach it”.
The father then sent another email in these terms:-
Don’t mean to bother you again, but I am unable to sleep at night and not been able to focus on work. I am truly a mess. Not been able to sleep as I think about what going through [X]s (sic) head when she sees you in bed with another guy. Need Ur help in making me understand. Please.
The mother replied in these terms:-
[Mr Misra], to be totally truthful with you about this, he actually, out of respect for both [X] and I, sleeps on the lounge. I’m not ready for [X] to see anyone else in our bed. It’s hers as much as it is mine. I can only tell you the truth, up to you to believe it or not.
On 9 July 2019, the father sent the mother an email with the title “I won’t be calling you or visiting your house again”. The text of the email is as follows:-
[Ms Quinn], baby. I am sorry again. I will you guys alone (sic). Maybe you are right, I took the little things for granted I guess. And I feel bad about it. I won’t be calling or visiting you again like I always do. This isn’t what it should be like. Not healthy and it’s just toxic. We both just end up upsetting each other instead of just being happy. Have a good night and please always take care of yourself and [X] like you always do and I know you will. Let [X] know that he is gone back to [Country B] or India to be with papa. At least that way, she will not be worried for long and will hopefully forget about and that I ever existed (sic). At least that will be consisted (sic) for her. Maybe one day like I always said, when she is older, she will probably want to know about me, she can reach out then and I will do what I can then to catch up on lost time. [Mr Misra]
On 10 July 2019, the father wrote another email to the mother. It read as follows:-
Babe, all I was trying to do was open up and tell you how I felt about what you are doing to me. As in, when you have an issue you keep it to yourself, stop contacting me and start pushing me away. I don’t do that, not my style. I just tell you the problem so that it can be worked on. But when you have a problem, you don’t tell me and I end up confused not knowing how you are to address it. You just go into silent mode which creates issues. You gotta open up and talk to me instead of pushing me away every time.
I am not up-and-down. I promise. I am always the same. We just need to tweak the approach and be more open and communicate. This has been our biggest weakness.
It would seem that the father had gone away on a trip but returned to Brisbane in the early hours of 12 July 2019. The father turned up at the mother’s residence at 4 AM that morning. I have seen a video of the confrontation between the mother’s new partner (Mr N) and the father at this time. The father eventually left the premises without actually venturing inside or seeing the mother.
Later that day the father wrote an email to the mother in the following terms:-
Hey [Ms Quinn].
How’s [X] doing? Have you got any more photos of her? Hope she is well.
Hope everything is well at your end and with [Mr N] to (sic). [Mr N]’s behaviour the other morning is a bit worrying because he easily cracks under pressure. He was so focused on trying to intimidate me, out with his phone and stuff, little does he realise the episode was captured on my 180° camera in my car. Obviously, that behaviour is not a good fit for [X]. Either way, look after yourself and [X]. Don’t worry, I am not running to the cops about this obviously, I am glad I gotta see (sic) what he’s like.
The mother replied in these terms:-
[Mr Misra],
You are more than confused. [Mr N] is a very loving, patient and kind person. Your arrival at 4 AM, even once advised you’re not welcome, will ruffle anyone’s feathers. [Mr N], in no way was intimidating you. He was simply advising you of what the rules are at home, that you have no regard for and especially at 4 AM. [X] was fast asleep as you bashed on the bedroom window, where she sleeps soundly. The police have been informed and shown the video, so by all means, you too are welcome to attend the station and we will happily move forward regarding it. You also made it known, u had come from the airport, get the day before, numerous times asked for me to fetch you as you had no way of getting home? Moving forward, you will need to seek legal advice in relation to seeing [X] in a supervised visit as you cannot be trusted, as you have noted to me in messages, you can’t look at her and for me to collect her. If you have no desire to do so, ceased all contact with us [Mr Misra].
The father replied:-
I never bashed on your window I wouldn’t do that knowing [X] is asleep. I knocked and emailed you beforehand and when you responded I was already there. [Mr N] said the same to me and I was leaving when he followed me to the car. I was leaving but he couldn’t help it. That’s his poor choice.
I got nothing to hide with the police, happy to go into court if you want to go there. Personally I think it’s a waste of time for [X]s sake and I have moved on as I received clear closure that I wanted for so long.
In regards to getting me from the airport, you said you can’t, so I made arrangements to get my car to the airport so I could drive back as there were no trains and no way I was going to pay $200 for a taxi ride from the airport.
I am not going to do supervised visits or any of that, I don’t think to fair (sic) to [X]. But I am happy to stick to our arrangement which is fair to both of us save the drama.
The mother later sent a photograph of X to the father in answer to his request in the first email. The father then wrote another email to the mother in these terms:-
Awww, such a cutie. Hey [Ms Quinn], Just so you know, between me and you, I did everything I could do in the last few weeks so that when one day [X] asks,
“daddy, why didn’t you fight for mummy? Why didn’t you put pride aside and say sorry and ask her back?”
I needed to have tried and I failed. But I am glad things in and it ended on terms I am okay with.
The mother did not reply and the father wrote a further email which reads:-
I wanted to say hope he genuinely looks after you and cares for you unlike me. Even though I have the very best of intentions to always do the right thing and be more involved, thought this year would be the year.
My mate advised me that a shoulder to cry on shouldn’t be a dick to ride on. Hope he treats you well and you guys are always together for [Y] and [X]s sake at least.
The mother sent another two photos and a message saying “[X] is more than looked after”. The father then replied:-
That’s nice that [Mr N] is doing all this for [X]. Glad to see. I guess you made the right choice for [X]. I am just disappointed I failed. But doesn’t matter. [X] is looked after.

The mother wrote back saying that “[Mr N] includes [X] in everything, [Mr Misra]”. The father wrote back in these terms:-
I know, I can see. He’s good dad material, I was just too late to prove myself. Was too busy doing things. Always wanted to get things right, again… Hope he provides everything I couldn’t, you deserve it. Hopefully I don’t wait too long to do the right thing in the future.
On 13 July 2019, the father sent an email at 8:04 AM with the title “Possibility of Full custody of [X] to you” in which the only words he wrote were “What’s involved in giving you full custody”? The mother did not reply to this email and so the father wrote again at 1:20 PM in these terms:-
Hey [Ms Quinn]
Hope [X] is well. Now that we are on good terms on things and things have settled, I would like to discuss [X]s future, looking out for her best interests. I have had a deep conversation with professionals, notably psychologists, psychiatrists and doctors who I thought would be best to advise.
I would love [X] to grow up in one household, take directions from one dad, and be totally immersed in the life she has around her rather than be confused taking direction from two households. I would like her to know what it is like to grow up in a normal house. I would want her to have what I had growing up, knowing she can always depend on her family and not be thrown in between decisions for her to choose. So rather than make it difficult for her and for her emotional and mental growth, I would prefer she be looked after under yours and [Mr N]’s care. I would hate to see [X] growing up in a broken family and family is everything to me.
In order to achieve this wholeheartedly and so I am not in the way of [X]s upbringing under one direction, I hereby forfeit my rights as dad and father so she can be totally under yours and [Mr N]’s custody. I might have failed in my relationship, but I will not fail and doing the right thing by [X]. Please do not misunderstand my decision as being selfish or stupid, I knew if ever it came to this for sure, I always knew that I would do what’s best for [X].
Let me know where I need to sign to make this happen. You have this in writing from me now, so you can always use this.
[Mr Misra]
The mother did not reply to this email. There are many reasons why this may be so.
As earlier recounted, on 19 July 2019, the father took X from her kindergarten at L Kindergarten at Suburb M. The police contacted the mother to tell her that the father had done this. The mother sent an email to the father which read as follows:-
Return her! You’re nothing but mentally unstable, inconsistent for her!! Re-read your email!
As earlier recounted also, the police returned X to the mother’s care. The mother had applied for another domestic violence order but the father had indicated that he was leaving the country permanently. This did not happen.
On 8 September 2019, the father emailed the mother with the title “I am depressed”. The email read as follows:-
[Ms Quinn], I need help. I feel really empty inside and in life. Nothing makes me happy anymore mate. I cannot sleep at all. I am awake all the time thinking about you and [X]. I find it extremely hard to get by every day knowing you are not by my side. It’s like, you are all I know. I know it takes time. But I always knew, if you weren’t around, I wouldn’t survive it. I am at our breaking point. Allow me to see [X], at least I can give some love to her. I really miss you babe. Words can’t explain how I feel about this.
The father then followed up with another email which read as follows:-
Hey [Ms Quinn]
Sorry I emailed you late. I’m used to telling you everything and knowing that I can’t talk things to you is hard. I guess, I just haven’t accepted wholeheartedly the situation and that you have moved on. I never thought I would lose the mother of my child, and knowing I cannot give [X] her mum and dad together. That’s the hardest part for me to let go. I just have to find it within myself to accept it, make peace and put things in the past. I am sorry mate. Do your thing, stay happy and keep [X] happy. I am good.
The mother gave evidence that the father had a house at Suburb O in P Region. The mother said it was a three bedroom, two bathroom home with a shared kitchen. As far as the mother was concerned, she was of the belief that the father was renting the bedrooms out to men and was placing ads via Facebook and Airbnb to obtain tenants. The mother was very wary about the high turnaround of people in and out of that house and what that may mean for the safety of X. The mother was also of the belief that the father had some form of “friendship” with a woman called Ms Q.
Around the end of September 2019, the mother ended her relationship with the person [Mr N] though she remains on very friendly terms with him. The mother then began a relationship with her current husband, [Mr D]. On 11 October 2019, the father wrote an email to the mother with the title “Mate, I Just need a place to stay for a week or so”. The email read as follows:-
I will stay out of your way, I’ll come only after Ur dinner, I’ll go to work and come to sleep after Ur dinner. At least this way I don’t need to crash at [Ms Q]’s.
The mother replied:-
No, please go and stay with her. Make amends with her and move on with her.
The father replied:-
Ok. I got no other option mate. Got nowhere to go.
The mother replied:-
[Mr Misra], there is no need to discuss anything to do your gf and my daughter in the same sentence. You don’t contribute and never have so not necessary! There is no point! You can’t keep turning up here whenever you like. Sending me sexual photos and messages and then run to [Ms Q] because I won’t let you stay here or give you sex like you have been asking for. I actually feel sad for her. She is probably a great person that you will ruin through your cheating and sneaking lying!
The father replied:-
She’s not my gf. I didn’t run to her. We are not together. She offered to let me stay at hers. I told her I rather stay at urs in the spare room, that way I’ll be close to [X]. I am seriously out of options for a place until I get this house installed. Of course, I want to have sex with you, why else would I send you those photos??
[Ms Q] is a nice person. And you are probably right.
The father wrote another email which read:-
Mate, this whole thing is such a clusterfuck. I can’t go down this path with [Ms Q] only to break her heart again just coz I need a place to crash. I rather stay in my garage.
The mother replied that she understood but added nothing more. The father sent other emails asking what the mother was doing and whether she was home. It would seem that those emails went unanswered.
On 13 October 2019, the father wrote an email with the title “Would love to take you and X out for lunch”. It read as follows:-
I just wish you would stop pushing me away all the time. But I understand the reason you do that is coz of the past and I cheated on you. I cannot change the past only the future. Hope you understand that.
Hope you can move past what has happened between us and give us another chance.
The mother did not reply to those emails. The father then set up another email account in the name of his daughter, X. On 27 November 2019, the father wrote to the mother, from that account, the following email:-
[Ms Quinn], I really need to talk to you about [X] and other things. I am seriously having suicidal thoughts. I am feeling really anxious and depressed about my life and losing you. Top of that I am extremely unhappy being alone.
The mother did not reply to this email and the father soon wrote another email in these terms:-
Baby, I seriously hit a low point in my life today. Not able to sleep either. Taking pills for my anxiety and it isn’t helping either. Fucking felt suicidal. Felt trapped and cornered like there is no way out to escape the hurt and I am genuinely depressed. I called you at midnight coz I needed to talk to you. Truth is, I can’t live alone and only think about you. I want to be a good father and dad to [X]. I really want you guys in my life so that I can be the best of what I can be to you guys. I am humbled as, no arrogance or ego when I say this, give me another chance to be faithful and loyal to only you and I will love you always and look after our family. I am going through some tough times at home at the moment and finding it hard to cope by myself. Always had you mate with me to share things and thoughts. You are my strength whenever I felt low and you are the only person I truly ever fell in love with. Thinking about my failure in not being the best version of myself as a partner and father is weighing heavily on me. Maybe I am being too hard on myself. Either way I am extremely hurt and still hurting. I want you back and I will be good to you.
The Events of 26 and 27 January 2020
These events are pivotal and represent the culmination of the relationship of the mother and the father. In short, the father took X on Sunday, 26 January 2020 (Australia Day). The mother went to the father’s house on the next day Monday 27 January 2020 (which was a public holiday) and retrieved X. The circumstances surrounding those two events have been the subject of much scrutiny in this Court and elsewhere.
The father contends, at paragraph 25 of his affidavit, that on 26 January 2020, the mother consented in writing for him to have X on that day and for her to stay overnight. However, he drove to the mother’s house, which is in a cul-de-sac, while X was playing outside and simply put her in his car. There was no interaction with the mother and there was no prepared bag of clothes or supplies for X in order for her to stay overnight with the father.
The mother contends that there was no such consent given. She said that there had been consent given for the father to have alternative Friday and Saturday nights with X and this was all that was agreed to on Australia Day. (The mother said that she eventually gave in to the constant demands of the father in agreeing to such an arrangement because she needed to stop his harassment)
The mother said that, when she was looking for X, she was told, by a neighbour, that the father had come and picked X up. The mother said that she called the police but was told by them that, because there were no Family Court orders in place, they were not going to involve themselves in this dispute. Whilst counsel for the Independent Children’s Lawyer seemed incredulous at this statement by the mother, it has been this Court’s unfortunate experience that the reaction of police is often the one as described by the mother that day.
There were many communications both by phone and by email. Whilst there is no way of now ascertaining what was said in phone calls, the emails do give some context as to what was happening. The mother testified that, during the first phone call, the father told her that he would take the child away where she would not be able to find her. The mother said that she decided “not to play the game” with him in email communication so that the father would not be forewarned as to what she was about to do.
The string of emails was marked Exhibit 3. I do not think that there is any need to reproduce the emails in full. The initial email is extremely instructive. It is from the mother to the father and was sent on 26 January 2020 at around 1:30 PM. It reads:-
Hi [Mr Misra],
As per my call to you today, January 26, 2020 we both have agreed to the following:
•Collection of [X] each fortnight Friday-pick up at 6:30 PM from [R Street, Suburb S] till Sunday 5 PM with drop-off at address listed above
•Phone calls to be made each and every Tuesday and Thursday at 7 PM in which the call will be answered as agreed
•No discussion is to be made around the life of the other parent by both of us
•Conversation between us will only be based around [X] and nothing else outside this
Kind regards
[Ms Quinn]
At 6.59 PM, the father sent an email asking whether X was still in nappies or not. The mother replied only speaking about the night time routine for X.
The next day the father attempted to reshape the agreement and make other conditions more favourable to him. He said that he wanted to contact the Child Support Authority (“the CSA”) so they would know about their arrangement because X would be with him for three nights a fortnight (which is contrary to the agreement). There was some “back-and-forth” about this.
The mother said that she would be calling the parents of the father and the father replied “I don’t respond to threats [Ms Quinn]. Not (sic) will I have [Mr D] lay down rules for my daughter. Sorry. Doesn’t work. We do this right”.
The mother responded “Rules? I gave you what you wanted [Mr Misra] and I gave you all the courts would give you without going to court and you couldn’t help yourself. Not a threat, fact is I did contact your father”.
There is a screenshot of a WhatsApp message sent to the paternal grandfather by the mother. The message itself has a screenshot of the first email sent by the mother to the father at around 1:30 PM the previous day. These words are then written:-“Papa, this was the arrangement [Mr Misra] and I came to yesterday and I let him have her yesterday overnight and now he has said that he will not be returning her! This will not end well for him”. The mother claimed that she did not write the words “let him have her yesterday overnight” and accuses the father of fabricating that part of the email because it is in a different font to what one sees on a WhatsApp message.
Night of 27 January 2020
At around 8:30 PM that night, the mother went to the father’s house. She said that she went there with her now husband, Mr D, and her 12yo son Y. She said that she was not going to leave Y at home by himself and that Mr D drove the car. She said that she was not sure that the father would be there given his threat to take X to a place where she would not be able to find her. She said that she waited and watched for about 20 minutes or so as she saw the father outside drinking and smoking. She said that after 15 minutes she saw X who had come from inside the house out to where the father was and then returned inside. She then saw the father go inside.
The mother said that she took that opportunity to run up the stairs before the father would realise that she was there and before he would be able to close the door to the veranda. She said that she entered the premises and demanded that the father give X back to her. She said that the father grabbed X around the waist with his right hand and then grabbed her by the throat with his left hand. She said that she then gouged at the father’s eyes which caused him to let go of X.
She said that the father had her by the neck and that they both fell to the floor struggling. She said that this was making a lot of noise. She said that she then noticed her son Y at the top of the stairs inside the premises. She yelled at Y to grab X and run. She saw Y do this. She said the father did not relax his grip on her and was pinning her to the floor.
The mother said that a flatmate of the father then entered the room and the father let her up. She said that the father said that the police had been called and he would not allow her to leave the premises.
The father gave evidence that the mother entered his property and began attacking him by gouging at his eyes. He said that X was taken away and the mother was attacking him. He said that one of his flatmates appeared and that he yelled to the flatmate to call the police. He said that the struggle between he and the mother then ceased and he began recording the mother and telling her that she could not leave because the police were on their way.
I have seen the video taken by the father and the recording corresponds with what both the mother and the father said occurred at this stage of the incident.
The mother left the premises and the father did not attempt to physically restrain her. She said she walked for quite some time because Mr D and Y had driven away.
The mother went to the Suburb T Police Station to report what had happened. The father went to the Suburb U Police Station to report what had happened. It would seem that the father got to the Suburb U Police Station before the mother got to the Suburb T Police Station. The father had complained that the mother had entered the premises and had assaulted him. He had marks on his face where the mother had gouged him.
The mother was arrested at the Suburb T Police Station and taken to Suburb U Police Station where she was interviewed. The police charged the mother with offences of burglary and assault and also made an application for a domestic violence order naming her as the respondent and the father as the aggrieved. The mother was released on bail.
The next day, 28 January 2020, the mother made her own private application for a domestic violence order against the father. On 30 January 2020, the … Magistrates Court made temporary domestic violence orders against both the mother and the father. X was named as a protected person in both orders. The order in favour of the mother had an extra condition that the father was prohibited from asking somebody else to contact X. The Court would eventually set both matters down for a final hearing.
On 14 February 2020, police conducted a welfare check on X and noted no concerns. The police recorded that the mother was abrupt and hostile with police because this had been the second welfare check in three weeks. The mother regarded these welfare checks as a way that the father was trying to get around the conditions of the DVO. The police advised the father that he should not request a welfare check again because he would be in breach of the DVO.
On 28 February 2020, the father attended the Suburb U Police Station and spoke to a female officer at the counter regarding claims of the mother breaching the order. The police notations record that the father accused that officer of bias towards the mother and began questioning her professionalism and knowledge of the law. It recorded that the father was making up irrelevant scenarios to quiz the officer and asking personal questions of her. It noted that the father was becoming agitated and took the officers details stating that “he’d be taking the matter further and the officer would be remembered by him”.
History of the Litigation
On 31 July 2020, the father filed the present application in this Court asking for parenting orders. His application sought interim orders that X live with the father and spend supervised time with the mother and final orders that the child live with the father and spend time with the mother but only one overnight visit in a fortnight.
The matter came before me as a first court date on 28 September 2020. I made orders that the child spend supervised time with the father at a contact centre and that an Independent Children’s Lawyer (“the ICL”) be appointed. In accordance with my orders, the father began spending time with X at the V Centre.
A problem arose at V Centre and their service was withdrawn. The principal of that contact centre eventually contacted the ICL to inform her of what had occurred. I will speak of this briefly later in these Reasons.
In the meantime, the police elected to discontinue the charges against the mother and instead charge her with trespass. The mother pleaded guilty and was given a nominal punishment. Police also withdrew their application for a DVO against the mother. The father still wished to proceed with that application in his personal capacity and the matter was set down for a final determination.
On 9 December 2020, the matter came back before me with the first appearance of Ms W as the ICL. Ms W advised that she had made arrangements for a family report to be compiled and so I made orders in relation to that and adjourned the matter back before me on 2 June 2021.

The matter was mentioned again before me on 4 February 2021. This mention was brought on by the ICL because there was disagreement as to whether the supervised visits should occur on a Saturday or a Sunday. The ICL had arranged for AA Centre to now be the contact centre. I made an order that the father spend time with X from 12 PM to 2 PM each alternative Saturday.
The cross applications for protection orders were determined on 16 March 2021. After the Magistrate heard evidence from both the mother and the father, the Magistrate dismissed the application for a DVO against the mother but made a four year DVO against the father. The father appealed this decision but eventually withdrew that appeal.
The family report was not ready by 2 June 2021 and so the matter was administratively adjourned until 1 July 2021. On that day, I ordered that X shall live with mother and spend supervised time with the father each alternative Saturday. I made a number of ancillary orders as to how that supervised contact would occur. I allowed the father to be provided with (at his own cost) copies of any documents from the school that he wished. I also issued an injunction restraining the father from attending the child’s school or removing her from school. I ordered the parents to complete a number of parenting programs. I placed X on the airport watch list. The matter was adjourned to the winter call over.
At the winter call over, Her Honour Judge Spelleken did not intervene and the matter remained in my docket with a mention on 18 October 2021.
There had been an issue with the supervision at AA Centre and the ICL was able to arrange yet another contact centre. The supervised time between the father and X began at DD Centre at Suburb EE on 25 September 2021.
On 9 October 2021, there was an incident that occurred at the contact centre which has meant that the father has not had any contact with X since that time. I will speak further about this later in these Reasons.
On 18 October 2021, I set the matter down for a final hearing to commence on 3 February 2022 and made the usual trial directions.
V Centre
As per the orders I made on 28 September 2020, the parents began to use the services of V Centre so the father could spend time with X. From the material provided, it would seem that the mother facilitated time and, on one occasion where she could not facilitate time, there was a make-up visit. Contact seemed to go well until a visit on Saturday, 7 November 2020.
The usual sequence of events for this contact centre was for the father to arrive and be ensconced in the centre. The mother would then arrive and leave X at the door of the centre. X would then go with the supervisor who would take X inside to spend time with the father. At the end of the visit, the father was supposed to remain inside and the supervisor would take X to her mother at the door of the centre and X and the mother would leave. The father was to remain inside the centre until the mother had left. In this way, there was no contact whatsoever between the parents and the provisions of the domestic violence order would be respected.
However, contrary to the instructions of the supervisor, on almost every occasion, the father would go to the door at changeover. The mother became distressed at this behaviour. She also noted a time where X went into the centre but then ran back outside to ask her mother a question that had obviously been relayed by the father.
On 7 November 2020, the mother came with her husband to collect X after her visit with her father. The mother filmed this encounter and I have seen the video. The father appeared at the door and was looking directly at the mother who remained in her car. The father gave the child to the supervisor who walked over and gave the child to the husband. There did not seem to be any problem with this changeover, however the father was looking at the mother for the entirety of this episode.
The mother, soon afterwards, wrote a negative comment on Facebook with the heading that she “doesn’t recommend V Centre”. The supervisor posted a reply and then the comment was taken down from the site. The mother then wrote an email to the manager explaining that she did not feel safe. She said that “if the father remained inside as he did on the very first occasion there would not be any issues”. She said that she felt intimidated by both the supervisor and the father and she claimed that the father attempted to approach her vehicle (though I could not see any evidence of this on the video).
In evidence before me, the supervisor, Mr BB, said that, on 7 November 2020, X was having a hard time separating from her father and this is why he allowed the father to walk her to the door. He did not see anything particularly wrong with that. He also testified that he had to tell the father, on a number of occasions over the course of supervised visits, that he was not allowed to walk to the door and that he had to stay in the centre. Despite the instructions, the father would still walk to the door.
This was the last occasion that V Centre was used for contact between X and the father. The ICL was then able to procure the services of AA Centre to facilitate further contact.
AA Centre
The notes reveal that whilst the switch from V Centre to AA Centre was facilitated so that the father would not miss any visits, the father told the centre that he would not visit on a Saturday because he was working. The mother insisted that the visits be on a Saturday because that was what X had been used to.
On 4 February 2021, I ordered that the visits continue to occur on each alternative Saturday. The father turned up at the centre on 6 February 2021, but there was no booking for him. The father told the supervisor that he had received confirmation of a visit and that there were “too many cogs in the machine making decisions for him without listening or asking him; in the end everyone wanted to blame him”.
The first visit at AA Centre occurred on 13 February 2021. At that visit, the father arrived with a female friend, Ms CC. The supervisor advised the father that Ms CC could not stay. Both the father and Ms CC became annoyed and they remained inside the centre waiting for the mother. When the mother arrived, the supervisor asked Ms CC to leave. The father told her not to go. The supervisor said that if Ms CC did not leave the visit not be able to go ahead. The father still told Ms CC not to go however Ms CC decided to leave. The supervisor brought X in to visit with her father. This visit went well.
The next visit on 27 February 2021 also went well. The visit on 13 March 2021 was cancelled because the mother was ill. She provided the supervisor with a medical certificate. The next visit was scheduled for 27 March 2021. The mother arrived at midday, but the father (who was supposed to arrive 15 minutes before the scheduled start; that is at 11:45 AM) had not yet arrived. He still had not arrived at 12:08 PM (which was, according to the mother, 23 minutes late). The mother then left giving the reason that she did not feel safe as there was the possibility that she may come into contact with the father because of his tardiness. I do note that this was the first visit scheduled after the Magistrates Court had made a final DVO in favour of the mother prohibiting contact.
The next visit was 10 April 2021. The notes disclosed that the father was very defensive in the presence of the supervisor telling the supervisor where she could sit and what she can do and what she can’t do. When X arrived, the supervisor noted that the father immediately started a conversation about the mother that was “uncomfortable”. When the supervisor intervened to stop the conversation, the father replied to her that X was asking him questions. The supervisor noted that X had not asked the father any questions.
After that had settled, the father told X that he wanted her to know that he did want to see her and that it wasn’t his fault that he didn’t see her on the last occasion. The supervisor noted that she felt that “at times the father would antagonise [X]”. She noted that X mentioned a cousin and the father laughed at her telling her that that person was not her cousin. X began to cry at this and the father continued to laugh at X “belittling her belief in her cousin”. X then told her father that the mother hated him and that she (the mother) didn’t want to see him anymore. X said that the mother would not forgive him and that she (X) would never go to the father’s house. The father replied that it was her choice and not the mother’s choice. The father said that he would see her in four days and X replied that she didn’t “want to”.
As they moved to another room in the contact centre, the father said to the supervisor that X had been “provoked and trained by Mum to say all of this like it’s all rehearsed”. The rest of the visit did not go well with X defiantly staying away from the father, to the point where she threw items at her father and told him that she hated him. When it was time to go, she allowed the father to give her a hug but wouldn’t let him kiss her.
The next visit was cancelled by the mother who again provided a medical certificate. The father noted that the medical certificate was valid for the day before the visit but not for the day of the visit. Nevertheless the visit did not occur. The mother did not agree to make up time.
At the next visit, the father arrived late (and the mother was already there). The visit still occurred though the supervisor had to admonish the father for his tardiness. X asked the father why it was that the mother hated him so much. The father deflected the question and changed the topic. The visit went well.
At the next visit, X told her father that she had “lost her attitude today”. The father and X were playing when X told her father that the mother hated him and has for three years and that she “will never like him ever again because of the time he said ([X]) could stay with him”. The father was able to change the subject. The rest of the visit did not go well because of X’s attitude.
The next visit did not occur because the mother was late and the father left before the mother arrived. The next visit did not occur (though this may have been during a COVID-19 lockdown). The mother did not attend the next visit either. The supervisor notified the ICL.
The mother said that she became aware that, during these visits, the father had been allowed to access his phone to make calls, play games and show photos to X. X had told her mother that the father had shown her a photo of (the injuries to) his face from the incident that occurred on 27 January 2020. X told her mother that the father had said “look what mummy did to me”. X had also told her mother that they had made calls to relatives in India. The mother said that she had the belief that phones would not be allowed and that she now had little confidence that X would be “safe” at this contact centre. She noted that the father seemed to push the rules at the contact centres and neither centre had been strong enough to stop this behaviour.
Because of these matters, the ICL organised a new contact centre being DD Centre at Suburb EE.
DD Centre
The notes from this centre are very instructive. The father was told that the centre had a policy about bringing presents for children and that generally this would only happen at birthdays or Christmas. They also had a policy regarding phones and the appropriate use of those.
The centre had an interview with X the day before the first visit. X told the supervisors that:
My mummy does not like my daddy they had a fight over me. I was at daddy’s house and mummy came to get me, but he told me mummy allowed me to stay at his house, then mummy came and they did fight, shouting and push each other on the couch, my brother took me away from me. Daddy told me mummy doesn’t like him, showed me photos, that he used to yell at mummy.
The supervisors asked X about the photos and X said that:
Daddy has them on his phone, he showed me it, daddy told me mummy attacked daddy and his face was injured, daddy told me mummy had to say sorry to him and then everything will go away, I love my mummy and I love my daddy, I want to see my daddy.
The supervisors explained to X that the father would not be allowed to bring her presents and what limitations he had with the use of his phone. X then said that, at the other contact place, daddy used to bring her a present every day and also they watched and played games on his phone. The supervisor explained that at this contact centre it is different and parents can play outside, play board games and they have lots of activities to do. X said that her father had downloaded games for her on his phone and that she played them when she attended other contact centres. She said that her father allowed her to call his family and play games.
X said to the supervisors that
Daddy told me mummy is the one stopping me seeing him, why is that, daddy loves me, I want to see him, I want to go to his place, daddy showed me he has a playhouse for me, he has lots of things for me, TV in my bedroom, mummy doesn’t like me eating and watching TV, daddy said I can do those things at his house. Daddy has lots of toys for me at his house.
The first visit occurred on 25 September 2021. The notes do not contain anything that would be considered inappropriate occurring however this notation was made at the end of the report:-
[X] was sad and upset when the supervisor visit finished as she wanted to stay longer in play. [X] cried when she was walking to her mum. [X] told her mum “if you say sorry to daddy, he said then we can see each other, mummy why don’t you say sorry to him?” [Ms Quinn] was calm and lovingly told [X] that she did not do anything wrong to say sorry. [Ms Quinn] spoke to [X] and she became settled.
In evidence before me, the supervisor, Ms F, said that the statement made by X was not made during the visit and that the father did not utter any words like that during the visit.
The notes of the next visit on 9 October 2021 are very detailed and to summarise them would be doing them a disservice. I have decided to reproduce them in whole below:-
Supervised visit between [Mr Misra] and [X]
Time - 9.00am to 10.30am
Date-9/10/2021
Supervisions – [Ms F] (Senior Facilitator) and [Ms FF] (Facilitator)
The following information was recorded due to not having enough space to write in the supervised case note form
[Mr Misra] arrived at 9.05am as agreed during the intake and assessment interview.
When arrived to the Centre and [Mr Misra] immediately went to wash his hands due to Covid protocols, [X] asked [Mr Misra] "daddy did you come late, you always used to come late in other place, so you came late".
[Mr Misra] told [X] "I came on time as [Ms F] told me. She asked me not to come early. I came here at 9.05am".
Senior Facilitator confirmed with [X] that her daddy came as discussed during the intake meeting.
[X] took [Mr Misra] outside as she wanted to play. When walking outside [X] asked [Mr Misra] if he brought her Sushi as she asked last visit. [Mr Misra] told [X] "shops were closed. I could not buy Sushi, I will order McDonald's, Uber eats". Outside play [X] was playing with play equipment's and [Mr Misra] tried to order Uber eats and it took longer than anticipated. [X] got upset and told [Mr Misra] "Daddy I don't want food, I only now want to play with you, can you play with me and then later order food".
[Mr Misra] still trying to get the order happening told [X]and Senior Facilitator "I am not going to bring food each time I come here. [X] you tell your Mummy to bring you food, I come from 30 minutes' drive and I cannot bring food, tell your Mummy to bring you food".
[X] told [Mr Misra] "Daddy you need to bring food. It is your responsibility, in other contact centre Mummy used to bring food all the time, you never brought any food. Mummy used to pack me food, I need you to bring food".
When [X] moved away from her father, Senior Facilitator reminded [Mr Misr]a not to tell [X] to pass messages to her mum and those kind of conversation can occur after [X] go back to her mother.
After ordering the food, [Mr Misra] went to play with [X]. During their play time [X] was talking about her new school and her new friends, [Mr Misra] started asking questions such as "did you move, where did you move, which school you go to". [X] told [Mr Misra] "Daddy I told you, I cannot remember, it was next suburb we move to". [Mr Misra] also started asking questions about her brother and [X] told him he is no longer staying at their house as he is staying at his daddy's place.
After outside play, [X] wanted to come inside and play with table tennis. During table tennis [X] displayed some actions that she needed to go to the toilet. Staff encourage [X] to go and [X] told staff she did not need to go and she would know when she needed to go. Food arrived and [X] and [Mr Misra] took it to the table to sit and eat. When they were eating [X] spoke about her birthday and asked the birthday present to be art and craft present After few minutes [X] told [Mr Misra] " I change my mind, I don't want art and craft, I wanted LOL Dolls, and [Mr Misra] told [X] he does not know what LOL dolls were, [X] tried to explained it to [Mr Misra]. Senior Facilitator showed it from the phone the picture of a LOL doll, [X] asked "Daddy can I have few dolls, I love LOL dolls". [Mr Misra] said he needed to see.
Fortnight visit, [X] and [Mr Misra] was upset with the Contact Centre and Senior Facilitator as Senior Facilitator told both that [Mr Misra] cannot bring presents each visits like he used to do other contact centre. Both were upset regarding this issue of not able to bring presents. In that time Senior Facilitator advised [Mr Misra] that during birthday or Christmas time he can bring presents a lot as much as he wanted to bring.
Senior Facilitator reminded [Mr Misra] "since you wanted to bring each time a present, when [X]'s birthday comes you can bring as much as you can. So you can bring set of dolls and more if you want as special days allows you to bring presents". Then [X] told [Mr Misra] "Daddy you can bring me set qf dolls, I like that". [Mr Misra] told [X] "we will see".
During their snack time, [X] asked [Mr Misra] whether she can play a game on his phone. [Mr Misra] gave his phone to [X] to play an online game. Senior Facilitator told [Mr Misra] that playing games are not allowed here and it is all about interaction by parents with their children. Senior facilitator reminded [Mr Misra] that as per the rules we did discuss this during intake interview and no games on line.
[Mr Misra] got angry and raised his voice and told [X] "don't worry [X], Daddy has change the rules in other contact centre, I will speak to the boss and change the rules here, Don't worry about it, I promise you [X] I will change the rules here, don't worry about it, I will speak to the boss here".
[X] told [Mr Misra] "Daddy, [Ms F] is the boss, she says no".
[Mr Misra] told Senior Facilitator "this is all wrong, I need to have freedom to do what I need to do with my daughter, I am asking only her to play a game, it is on my phone, I will be watching her, In these days kids need to know how to operate tech and phones. Kids are smart and they play games on the phone. I need to change these rules here, I need to speak to you after the visits, I need you to understand now young kids are smart and they want to spend time on their electronics. This sucks".
Senior Facilitator reminded [Mr Misra] that adult conversations should not occur in front of [X] and this can be discussed after the visit.
[Mr Misra] and [X] got up and went to play at table tennis. [X] again displayed as she wanted to go to the toilet. [Mr Misra] asked [X] if she wanted to use the toilet and [X] said she did not and told him she wanted to play with him. [Mr Misra] continued asking the question from [X] and she told him that she did not want to use the toilet.
[Mr Misra] stopped playing table tennis and walked to the toilet area and on his way there in a loud voice he said "[X] come here, I am asking you to come to the toilet, if you don't go I won't play with you, come as I asked you, I am not going to ask you again, come here [X]". [X] stood and started crying and ran to the kitchen area. Senior Facilitator followed [Mr Misra] as he was getting loud in his voice. Other facilitator followed [X] and spoke to her and asked her to go to her Daddy and speak to him. [X] ran to where [Mr Misra] was standing (opposite the toilet door) and ran inside to the toilet. [Mr Misra] went to the table and waited couple of minutes and when [X] did not come out Facilitator walked to the toilet to see what [X] was doing. As the door kept open Facilitator can see [X] was sobbing.
Senior facilitator also went to check and [X] was sobbing and did not want to come out. [Mr Misra] went near the toilet to speak to [X]. [Mr Misra] asked [X] "what's wrong, come out and I wanted to talk to you, why are you crying". [X] told [Mr Misra] "I wanted to go to mummy, is she here, I don't want to talk to you, I am not coming out".
[Mr Misra] asked [X] "You need to come out to speak to me, I need to know why, I am not coming to see you if you are not coming out, there is time, your mummy is not here. I am asking you again come out please, I need to speak to you".
Senior Facilitator tried to tell [Mr Misra] to leave [X] to settle and then speak later as she is upset. Then [Mr Misra] told Senior facilitator "I am trying to speak to my daughter. Please leave me. I need to speak to her".
[Mr Misra] asked [X] again "what's wrong, you need to tell me why you are upset, is she the reason you are upset, are you scared of [Ms F], is she the reason you are not coming out from the toilet".
[X] looked at Senior facilitator and nodded her head when [Mr Misra] was repeating the same question to her "what's wrong, you need to tell me why you are upset, is she the reason you are upset, are you scared of [Ms F], is she the reason you are not coming out from the toilet, [Ms F] my daughter is scared of you, please do and sit there (and pointed again to the table where [Ms FF] was sitting)".
There was another parent who was with a little child and was scared and went outside with the other facilitator due to fear.
[Mr Misra] told Senior facilitator "Can I please have some time with my daughter, I want you to go where [Ms FF] is sitting and wait, you can still hear what I am saying, I need to have time with my daughter, I need to speak to her, please go and sit as I asked you where [Ms FF] is sitting". Senior Facilitator told [Mr Misra] "I cannot leave you alone with [X], I need to stay here, if you need to speak you can do, but as per the rules here I cannot leave a child alone with the parent".
[Mr Misra] said "what is these rules, these are not allowing me to bond with my daughter, I am only asking you to go, please go and sit where [Ms FF] is (in a loud voice [Mr Misra] yelled at Senior facilitator) and couple of times yelled at her saying to go and sit. Senior facilitator told [Mr Misra] "I cannot leave as I need to be here". After a while then [Mr Misra] got up and went to the table area and sat on the table. Senior Facilitator spoke to [X] to come out and play with her daddy. [X] after Senior facilitator spoke to her came out from the toilet and went to sit near the art and craft table to do some drawing. When [X] was drawing [Mr Misra] got up and tried to take a photo of her. Senior Facilitator reminded [Mr Misra] that he is unable to take photos and that Staff has to take the photos. [Mr Misra] got upset and told in a loud voice saying "see too many rules, I don't want to come here, too many rules for parents, I cannot even take photos of my own daughter, too many rules, [X] we are not coming back here, I am going to courts on the 19 and I will tell the Judge, we are going to another contact place where there is no rules, I don't want to be here, [X] I promised you, I will not bring you here, too many rules, Daddy promise you we are going to go somewhere else".
[X] told [Mr Misra] "yes Daddy too many rules", then [Mr Misra] asked her "you don't like here because of rules, you don't like to come here, I will not let you come here, I am going to go somewhere else, there are other places and we can go there, I know you don't like here".
Senior Facilitator reminded [Mr Misra] not to have adult conversation in front children. When it was time to leave [Mr Misra] told [X] "we are never coming back here, I promise you [X] you don't have to come back here, I promise you, when Daddy promise something he will do that, we are never coming back here and I promise you". After [X] left Senior Facilitator advised [Mr Misra] that he does not have to pay as his advance payment will be used as the fee for today's session.
[Mr Misra] tried to talk to Senior Facilitator and [Ms FF] regarding what happened. Senior Facilitator told [Mr Misra] that each parent coming to their supervised visits have to follow the rules and guidelines, [Mr Misra] told both "when I came to your centre I was happy, because we all have brown skin and I thought you all will understand each other". Senior facilitator told [Mr Misra] "skin colour is not important here and we treat everyone who access equally and we do not treat people differently based on their skin colour or ethnicity, they all have to follow the rules and court orders. We do not treat people based on their colours of the skin".
[Mr Misra] asked Senior Facilitator "so you are going to tell this to ICL and write in your notes, I am going to deny everything, I am going to be a lawyer, we will see each other someday". Senior facilitator told [Mr Misra] "we record everything what happened here and we do not lie or tell stories as we record exactly everything.

In light of what had occurred, the mother asked the supervisor if she could bring X in the next morning to have a chat. The next morning, 10 October 2021, two staff of DD Centre met with the mother and X. Again, it would be more instructive to reproduce the notes of the conversation than to attempt to summarise them. The notes are as follows:-
This meeting was organised due to the [X] requesting to meet with the staff of the [DD Centre, Suburb EE] due to the incident during the supervised visit on 9/10/2021. The following discussions took place.
[Ms F] – Hey [X] I heard from mum you wanted to talk to us.
[X]-"I am sorry what l said yesterday to my Daddy about you. [Ms F] I am really sorry. I was scared of how daddy would shout at me. I was not upset about you. I didn't like the way Daddy shout at me. He made me scared. I ran to the toilet to hide from him. He came to the toilet door*. I am scared to tell him why I ran. When he yelled at you, I got scared. I was crying and I wanted mummy. Daddy asked me to come out, I didn't want to come out, {[X] stopped and started to sob)", [Ms Quinn] and I assured it was ok and she is safe now arid not to worry.
Still sobbing [X] told us "I am sorry, I put you in trouble with Daddy, I told him when he asked me about your saying are you scared of [Ms F] and I nodded my head. I did this to stop him getting mad at me. Then he yelled at you, it was all my fault. I lied to him. I was scared to tell him; I was scared of him. He yelled at me. I didn't like it. He used to do that at mummy. He told me it was all mummy's fault. If mummy say sorry it will go away. I remember him yelling at mummy. I was scared here, I thought he is going to yelled at me again. I am sorry, I am sorry, I am sorry, [Ms F] are you angry with me, I want to keep coming here, I told Daddy I don't want to come, I said that to him, he told me he did not want to come here, too many rules, he told me he would never bring me here and he promised he will find another place without rules, he told me he can change rules, he told me he is going to another place, I want to see my Daddy, I told him I want to go to another contact centre, I know he told me he does not like your centre [Ms F] or rules here, I want to come back here, I am sorry, now because of me of what I said you are not letting us come "
[X] was crying and sobbing so much she found difficult to breathe in.
[Ms GG] told [X] "you don't have to say sorry, it was not your fault, please don't get upset, you told Daddy because you were scared that he will keep yelled at you. Please don't keep saying sorry We are not upset or angry".
[Ms F] said "[X] it is not your fault, please don't say sorry, as an adult your daddy knew what he was doing and how his behaviour will have impact on you and the others here in the Centre. Your daddy told you and us that he will not come back to the Centre. So please don't apologise to me. I know you did not mean to lie to your Daddy, I saw how frightened you were, I saw how you were hiding in the kitchen and then you ran to the toilet and closed the door, I knew you were upset and scared, it is not your fault, please don't get upset, I am not upset at you or angry at you. I know you did not do anything wrong".
[X] told her mum "I am sorry mummy, I didn't tell you, Daddy showed me his face photos, told me you hurt him, he showed it to me, he had the photos"
[Ms F] -I told [X] I could not remember him showing any photos here.
[X] said "Mummy he showed me it at other place, I was playing games on his phone, he showed me photos, I want to come here Mummy, I want to see Daddy, I want to play with him. I told him, I want to play with him yesterday, he took long time to order food. I told him first play and then order food. Daddy told me to tell you he can't bring food and you need to give me food when I come here. I told Daddy mummy always gave me food and he need to bring food. It is not so difficult to do that. Daddy would not listen to me, he told me mummy you need to bring when I come here, why isn't Daddy not coming to see he, does he want to see me, why doesn't he want to come to the centre, I love him, I want to see him. Daddy said he is going on the 18 November to courts to talk and I will be going to his house, what is courts mummy".
[Ms Quinn] explained to [X] that her Daddy loves her and not to think that he does not love her. [Ms Quinn] explained that courts is a place where there is a person who makes the decision based on everything and one day [X] will understand. [Ms Quinn] said Daddy is silly to mention these things to [X] as [X] does not understand adult conversation. [Ms Quinn] said next time if Daddy speak to [X] about adult conversation that [X] can tell him that she is a child and does not need to know those. [Ms Quinn] also assured [X] that no one stopped her Daddy seeing her and it was her Daddy who decided not to attend to the … Centre.
[X] told [Ms F] and [Ms GG] "I am sorry, I made my Daddy shout at you [Ms F], he was angry at you, he told me he is going to change the rules at your contact centre, I told my Daddy that you are the boss here [Ms F] and he cannot change the rules, he told me he is going to do that. He got angry at you because of me. I am sorry” ([X] kept saying sorry and was crying again).
[Ms F] - Please [X] it is not your fault, please don't tell sorry. You did not do anything wrong. You asked and your Daddy knew the rules here as he was told by me what he is able to do here and what he is not able to do. Your daddy knew the photos and all the other things he spoke to you during the visit time. I know it is not your fault. Please don't feel upset. I am not angry or upset at what happened yesterday. I knew you had to say things to please your Daddy and that is why when he pointed at me and asked you whether you were afraid of me, you nodded and said yes, I knew you did not want to tell him the truth. I saw your sadness and fear in your eyes. I knew you did not mean it".
[Ms GG] said to [X] "its ok [X], [Ms F] or me we are not upset at you, we knew you didn't mean to say it. Please don't cry or say sorry. As [Ms F] said we are not upset at you".
[X] asked [Ms F] "can I still come here. I like this place. My Daddy is the one who did not like here. I have so many board games here to play. Daddy always give me his phone to play in other contact centre. But I like to play outside and do things. Daddy doesn't like it. He wants to sit but I want someone to play. [Ms F] can I come and play with you. My mummy has my baby sister. She can't play with me always. I love to come here [Ms F]. Please can I ask my mummy to bring me here to see you and [Ms GG]".
[Ms Quinn] told [X] that she will bring her to see [Ms F] and [Ms GG] if that is her wish. [Ms Quinn] told [X] that she will still be able to see her Daddy and let the adults discuss this and organise it. [Ms Quinn] assured [X] not to worry about it.
[X] told [Ms Quinn] "but mummy I want to go to Daddy's house, he told me he has lot of things for me at his place. I want my birthday present from Daddy, he always buys things for me. I told Daddy I want Lol dolls. Daddy said he will get me dolls. I want my dolls mummy. Now I will not get the dolls, he is not coming here, I am not going to get the dolls".
[Ms Quinn] said "maybe already few lol dolls are coming to our house for your birthday. Santa will bring some dolls. You are being good and Santa know how good you are. I told you dolls will be there. We are going to celebrate your birthday [X]. You will have Lol dolls".
[X] was settled after the discussion. [Ms GG] took [X] outside to play.
[Ms F] and [Ms Quinn] discussed regarding counselling and how [X] needs it this time. [Ms Quinn] said she has already organise with the school and will follow up. [Ms Quinn] said she can see the damages that happened to [X] going to other two private contact centres and not fully supervised by the supervisors. [Ms Quinn] thanked for looking after [X] and keeping her safe.
When it was time to leave [X] was sad as she wanted to spend time with [Ms F] and [Ms GG] at the Centre. [X] said during school holiday time she wants to come and say hello to both and asked if she can come. [Ms F] told [X] she is welcome at any time to come and visit them.
Meeting concluded at 12.00pm.
The Trial
On the first day of the trial, 3 February 2022, the father asked for an adjournment so that another supervisor could be identified and the father could have some contact with X before a final hearing occurred. This application was supported by the ICL but was opposed by the mother. Ultimately (on 4 February 2022), I heard evidence from the younger sister of the father who said that she would be prepared to supervise visits between the father and X.
I declined to order that the sister be the supervisor and gave my reasons on that day. Due to time constraints, it was impractical to now start the trial then but I was able to adjourn the final hearing to 15, 16 and 17 February 2022.
The father gave evidence before me. The father also called his new partner, Ms E, his neighbour, Ms HH and a psychiatrist, Dr JJ. The mother gave evidence before me. The principals of V Centre and DD Centres, Mr BB and Ms F, gave evidence before me as did the Family Report Writer, Ms KK.
Evidence of the Mother
The mother was forthright but extremely defensive, and in this way displayed the traits that have been evident throughout the relationship, especially since February 2020. When challenged aggressively, she answered aggressively. But she was honest, and brutally so. She made appropriate concessions. I have accepted her evidence.
The gist of her evidence is that she is easily provoked by the father and reacts accordingly. Her explanation of her behaviour in throwing the father’s property onto her front yard and smashing his windscreen did not put her in a good light, but she didn’t ever pretend that her behaviour should be seen in a good light. She said that her response was one of anger because of the manner in which the father did not respect her rights to enjoy her own property.
She conceded that she has been less than perfect. She conceded that she was smoking during her pregnancy. She conceded that she has a problem with her anger but that it is a reaction to provocation.
I noticed this aspect in her evidence; when asked questions in a calm manner, the mother responded calmly. When asked questions in an aggressive, or accusatory, manner, the mother responded in kind.
She conceded that she could have handled many of the situations very differently. She said that the father knows how to get a reaction out of her and she needs to learn “not play his game”. She said that there were many occasions where she now says she would have acted differently, ignored what the father was doing or simply called the police before any confrontation occurred.
It was put to her that she had verbally agreed to the father having the child overnight on Australia Day 2020. She denied this. When she was referred to the emails, she accepted that evidence but explained that she was “not going to play his game” which is why she answered the emails as she did. She said that she was not going to do anything that would provoke the father into taking the child to another residence where she would not be able to find the child. She said that her responses were designed to, in effect, lull the father into a false sense of security so that he would not expect her to come and take X back.
Counsel for the ICL asked whether the mother had marks on her throat from where the father had grabbed her. She said that she would have had such marks. Having seen the mother’s distinctive tattoos, it seems to me that it would have been nigh impossible to see any sort of markings that might be expected from such an attack as described by the mother.
The mother conceded that she was not prepared to facilitate make-up time when a supervised visit was missed. The mother has been extremely cavalier with her responsibilities regarding supervised visits. It was difficult for her but the reason that the visits were put in place was for the best interests of X and the mother needed to focus on that aspect.
But when I look at the whole of the evidence regarding the “failures” of the contact centres, I do not condone everything that the mother did but I do acknowledge the reasoning behind her actions and what has motivated her.
She candidly admitted that she did not think that the father had anything to offer X.
The mother also conceded that she has not properly looked at counselling for X. She has been content to let the school counsellor handle these issues. She conceded that X would need more extensive therapeutic assistance than what a school counsellor could give and she was prepared to ensure that this happened.
Evidence of the Father
In contrast to the evidence of the mother, the evidence of the father could only be described as dishonest and disingenuous. The father displayed a tendency to twist things that were being said to him so as to suit him and to ignore any facts that did not suit him. The father was argumentative and always wished to put a gloss on what it was that he was saying.
The father often asked the cross examiner to repeat the question. This was clearly a delaying tactic so that he could think how he should answer the question. At one stage, I asked him whether he had a hearing problem and he told me that the acoustics in the courtroom meant that the question was echoing to someone sitting in the witness box. This was checked by my Associates during a break and there was no problem. No other witness made any complaint of a similar nature. It was clear to me that the father was being dishonest about that aspect.
The father often did not answer the question and would go off on a tangent. On occasions, the questioner asked the father a number of questions which he accepted. Those acceptances then formed the basis of the next question. However, the father would then not answer that question, seemingly disputing the basis of the question, notwithstanding that he had accepted it in the lead up. He continually endeavoured to manipulate what he was being asked to allow for favourable responses.
This behaviour did allow me to see the real person of the father and how he truly interacts with the mother and with X. It also became obvious that he had a very unhealthy obsession with the mother.
I have already mentioned the way in which the father described what happened on 4 October 2014, when the mother was filmed throwing the father’s possessions onto the front of her yard. It was telling that he did not paint the full story which the mother did in her evidence. The mother was not challenged on her version at all. The father referred to the police taking out a DVO on the mother but neglected to say that they subsequently withdrew that application and that the Magistrate refused to make an order for such a DVO.
But the most disturbing video was the one taken by the mother’s then boyfriend Mr N when the father attended at the mother’s residence at 4 AM. The father displayed absolutely no regard for anyone else. The attitude shown was one of “I am entitled to see my daughter at any time that I wish whether it suits her or not”. One only has to watch the video to gain an understanding of the sort of person the father truly is.
The father made admissions that the emails sent to the mother, in which he describes having suicidal ideation, were works of fiction. He said that he was not feeling suicidal but merely wanted to have the mother feel sorry for him. This is a most blatant example of the emotional manipulation of which the father is capable and, to my mind, totally justifies the granting of the DVO by the Magistrate in March 2021.
But while that manipulation is quite blatant, the subtle manipulation that was occurring throughout all the emails becomes evident when they are seen in the context of this whole relationship. The emails in July 2019, illustrate that the mother was quite willing to allow the father to have overnight time in the alternative weekend with X. Having achieved what it was that he ostensibly wanted, the father wanted information about the mother’s relationship on the pretext of concern for X.
A week later, the father pens a long email saying that he will no longer contact the mother or visit her again. When she doesn’t respond, he subtly criticises the mother and points out that he (the father) is admitting his faults and doing something about them. The reality is that the father is doing no such thing.
On 13 July 2019, the father emails the mother suggesting that she could have full custody of X and asking her to give him the papers to sign. The email is full of self-serving statements designed to get a placating reaction out of the mother, hopefully along the lines of “you’re not a bad father and you still have redeeming qualities”. But the mother simply doesn’t reply.
Because of her lack of response, the father then acts in a way that will provoke a response; he takes X from her day-care. X is only returned to the mother through police intervention. One can totally understand her exasperation which is illustrated by the mother’s email where she tells the father to bring X back and to re-read his last email (in which he told the mother that she would have full custody of X).
The mother then sought another DVO but the father said that he was leaving the country permanently which caused the mother to withdraw her application. It seems to me that the father never had any intention of leaving the country but was again manipulating the mother.
The emails sent in September, October and November 2019 display the obsession that the father has with the mother and the emotional manipulation with which he has interacted with the mother throughout the whole relationship.
While giving evidence before me, the father was asked by the ICL whether he had ever sent any “inappropriate emails” to the mother. The father said that he had not. When one of those emails was read to him, the father described that email as “inappropriate”. He was then asked why he answered the question about sending inappropriate emails in the negative. His response was less than candid and, in fact, dishonest.
His evidence regarding the events of 26 and 27 January 2020, also has an air of implausibility. He said that the mother had given him verbal permission to have the child on that Sunday night. He even went so far as to swear that “it would be wrong to say that the mother had given me written permission”. Yet, in paragraph 25 of his trial affidavit, the father says that “on 26 January 2020, (the mother) consented in writing for me to have [X] on that day and for her to stay overnight”.
When it was pointed out to him that the mother had earlier that day consented to the child being with the father on Friday and Saturday nights, he said that because Australia Day was a public holiday, the mother had allowed him to have the child that day. The father did not satisfactorily explain why it was that he did not speak to the mother when he took X that day, or why X did not have any overnight bag packed when he picked her up.
The father also did not satisfactorily explain what arrangements had been made for the return of X. There was no explanation as to why X was still at his house at 9 PM on 27 January 2020.
Tellingly, when the mother came into the house, the father said that the mother attacked him and that he was defending himself. The father had said that the reason that he had kept X was because he was concerned for her welfare with the mother. Yet, when Y appeared and was told by his mother to take X, the father did nothing to prevent this. He did not chase after Y to get X back nor did he follow Y to see where X was. He did not show one skerrick of concern for X at any time after the mother entered his house.

Instead his attention was solely focused on the mother. That much is clear from the video that he took that night. He makes a number of statements about the mother attacking him and that the mother needed to stay and wait for the police on the video. Nowhere is there any statement of concern for X and where she might be.
I can safely conclude that this whole episode was not done for X’s benefit in any way whatsoever; the sole intention of the father was to engage the mother.
The Affidavit of the Father of 11 February 2022
On 4 February 2022, when I was giving short oral reasons for why I was not going to adjourn the trial and make supervision orders with the maternal aunt as supervisor, I commented that the father had not given any evidence of errors he had come to realise that he had made since the incident at DD Centre.
On 11 February 2022, the father filed a further affidavit which, seemingly, was due to the observations I had made a week earlier. It is instructive to see what the father had written in his original trial affidavit (sworn on 21 January 2022) about the DD Centre. He wrote, at paragraphs 66 and 67, that:-
Supervised visits at [DD Centre], [Suburb EE Contact centre] did not continue due to concerns regarding the supervisor [Ms F] and her behaviour towards [X] and me. I only had to contact visits at this centre. Some of the concerns are:
•being told repeatedly to both [X] and I that [Ms F] is the boss
•advising [X] that daddy is 10 minutes late - when I wasn’t. I was told to arrive between 9 AM and 9:05 AM
•advising [X] what birthday gifts to ask me to buy for her. [X] told me she wanted colouring materials as her birthday gift. [Ms F] advised [X] to tell daddy to buy “LOL dolls” and to get the whole collection or set of dolls.
•Not allowing [X] to freely communicate with me and vice versa, making her feel uncomfortable and restricted
•[X] raise multiple times with me, requesting to change the contact centres
•as a parent, I was restricted unreasonably during the visit making me feel pressured, uncomfortable and stressed during my limited time
As can be seen by what the father had written, he had taken absolutely no responsibility for what had occurred during the contact visit. The contrast, between what the father has put in his affidavit and what the notes of the contact centre disclose, is not surprising given the totality of the behaviour of the father that has been on display during this trial.
The father said that he did not see the supervisor making any notes whereas he made notes immediately upon his return home and he sent those notes to the ICL. A perusal of what he sent to the ICL shows that it is, word for word, what was put in the affidavit of 21 January 2022.
In his new affidavit (sworn and filed on 11 February 2022), the father speaks of the concerns he raised with the supervisor at his intake session. Extraordinarily, he then wrote this at paragraph 4:-
While having conversation, [Ms F] told me that she is knows (sic) the ICL [Ms W] really well as well as Judge Vasta.…[Ms F] said she does not like hiring Caucasian employees in her centre as it creates problems for her and likes to hire coloured staff.
It is obvious to me that the father is attempting to portray a picture of a supervisor who was “throwing her weight around” by making these extraordinary statements. The supervisor, Ms F, gave evidence before me that she had never met either Ms W or myself. She said that the father was complaining that Judges never take the side of the father and that the system was unfair. Ms F said that she replied to the father by pointing out that “Judge Vasta is very fair and I am supervising a mother whom Judge Vasta ordered to spend supervised time at this centre”.
It is also obvious to me that the father was attempting to portray Ms F as a racist in an attempt to manipulate the Court’s opinions of him by “gaslighting” the supervisor. According to Ms F, the conversation about race was that which is recorded in the notes.
The rest of the affidavit is a self-serving document where the father is reconstructing what occurred on that day. Even though it is a reconstruction, it is clear that the father has deliberately disobeyed the instructions of the contact centre in that he wanted to use his phone, to let X play a game and also wanted to use the phone to speak to the extended paternal family. The father was told earlier, in no uncertain terms, that this was not allowed.
The father acknowledged, in the affidavit, that he shouldn’t have reacted by questioning the supervisor in front of X. The father said, in this affidavit, that it was X who did not like the centre and X who did not want to come back.
The problem for the father is that, in his trial affidavit, he proudly trumpeted the fact that he had completed a number of courses (which were all suggested in the family report). Those courses included the Circle of Security, a parenting orders program and a men’s behaviour change program. He said that he had also completed the Triple P program. He said he had engaged with the psychologist and had also attended a psychiatrist for a mental health assessment.
Yet, even though he has done all of these courses, he still behaved in a most disgraceful fashion on 9 October 2021. When he was asked, by the Counsel for the ICL, what he would now have done differently about that supervised visit now, his response was that he would have researched what sushi places were open before going to the contact centre. That reaction perfectly sums up his appalling lack of insight.
Other Witnesses
None of the other witnesses has really made an impact on the issues at hand. Dr JJ was not conducting a forensic report; he merely offered the opinion that the father was not suffering any mental illness. Ms E, the father’s new partner has never met X and cannot really assist the Court regarding the father’s interaction with her. Ms HH, the neighbour, gives evidence that is quite consistent with what I have seen of the character of the father and the mother. The way he presented to her is how he appears at first blush.
It would seem to me, this was also the way he presented to the police on the evening of 27 January 2020. It is only when one looks very closely at how the father has behaved over time that one gets to see his true character. It is totally unsurprising that, on a review of all the evidence of the night of 27 January 2020, Police Prosecutions did not wish to proceed with either the DVO application or with any criminal charges against the mother.
The Family Report
The family report compiled by Ms KK was very thorough, however many of the recommendations have been overtaken by the events of October 2021. The report was written on 10 June 2021.
The interactions Ms KK had with X were instructive. Ms KK had told X what her job was, and spoke of “mums and dads”. As soon as she said the word “dads”, X said, quite forcefully, “my mum hates my dad”. X then blurted out:
…a confused story which appeared to be about her mother removing her from her father’s home, and without pausing, stated, “one time it was early and I was at my dad’s house and we ringed mum, and that he was talking to Mum and mum didn’t say you can stay forever but daddy thought that, but mum didn’t say that and we were watching a movie”.
X told Ms KK that her mother tackled her father and that her brother took her outside and her stepfather carried her over the fence and her grandfather took her in the car because her father “stealed me”. When Ms KK asked if her father told her that he was stealing her, X said “no, but I don’t like him”. When Ms KK asked if she could remember her father stealing her, X said “because dad said I could stay there forever” and said that she was crying because “I was worried about mummy, because I thought daddy took mum to his work. Because I thought Mummy was in danger”.
When drawing a picture of her family, X said “of course I don’t really like my father” and said this was because “he stole me and then my mum tackle daddy and then he was holding me”. When asked if she had anything nice to say about her father, X said “yes but I still hate him”.
When X was asked whether she liked seeing her dad, she answered “course, no” and “I hate him”. X then approached Ms KK and said, in a whisper, “can I tell you a secret? I don’t hate him. I like him. I love him. Don’t tell mum or she’ll be angry”. X said that she would “get in trouble” and asked Ms KK to “pinky promise” not to tell her mother. X became somewhat distressed when she saw that Ms KK was writing things down and she asked Ms KK not to write it down.
Ms KK said that X appeared to have a very close relationship with her mother and “a close and warm relationship with her father”.
Ms KK said that X appeared to be a “confident, energetic, intelligent and talented little girl who is meeting all developmental milestones. However, in my view for a child of her age she behaved in an unusually powerful and authoritarian manner towards adults during the interview day. I am unsure of whether X is behaviour represents the way she normally behaves, but in my view, it may suggest that she understands that her behaviour will not attract correctional consequences, has modelled her behaviour on that of others”. Ms KK noted that X had behaved similarly during some of her visits with her father at AA Centre.
Ms KK said that her impression was that X’s disclosure in her interview that she loved her father was spontaneous and sincere and that this contrasted greatly with her initial statements that she hated him. Ms KK said that, given X’s professed view that her mother hates her father, she was of the belief that X must be feeling a great sense of confusion about how she should feel and behave towards her father and how this would be received by her mother and maternal family. In her opinion, X’s confusion and apparent fear of her mother’s reaction to her disclosures, may have caused her dysregulated behaviour after her interview.
The recommendations of Ms KK were that both parents complete a parenting orders program and a Circle of Security parenting course. She also recommended that the father attend a psychologist who has a copy of her report and that the father also undergo a men’s behavioural change program. As earlier indicated, the father has done all of those things.
Ms KK based the other recommendations on a premise of whether the Court would conclude whether there was an unacceptable risk or not of the father removing the child from Australia.
When she gave evidence before me, Ms KK had been given all the materials. She said that if the conflict between the parents continued X would definitely be affected. She said that unsupervised time with the father would be harmful, confusing and distressing if the conflict continued. She said that the result for X is that she may have problems trusting people and wondering whether it was safe to interact with others.
She was asked about the impact upon X, if it were that the father were to continue to have no time with her. Ms KK said that this would depend upon how much the father is on X’s mind and this was very much an unknown factor. Ms KK said that a “no time” order may affect X’s development and identity.
Ms KK said that it was clear that the father was displaying no insight. She said that he did not impress as a “dedicated” parent. She said that the father struggles to show emotional maturity but instead tries to throw his weight around.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s 61DA (“the presumption of equal shared parental responsibility”) and s 65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s 64B of the Act.
In deciding whether to make a particular parenting order s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s 60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s 60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s 60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG).
I will also be guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made and how they apply in determining what parenting orders are most likely to promote the best interests of X.
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
(a)the benefit to the children of having a meaningful relationship with both parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
(a)It is not important to X that she has a meaningful relationship with both her mother and father, and
(b)There is a need to protect X from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
(a)Notwithstanding that Ms KK was of the view that X and the father had a warm and loving relationship, it seems to me that this relationship is somewhat superficial.
(b)All of the evidence illustrates a pressing need to protect X.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X. Having made the findings I have, s 60CC(2A) has significant relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:-
(a)In my view, X is still too young for her views to carry much weight. I am also concerned that the views that she does have, are certainly not fully informed ones.
(b)I have already made a number of comments as to the nature of the relationship of the child with both her parents. I have also taken into account her relationship with her paternal family (whom she has not met face-to-face) as well as her maternal grandfather, her half siblings and the mother’s husband.
(c)I have already spoken of these issues and have taken them into account.
(ca)On the evidence before me, it is clear that the mother has fulfilled her obligation to maintain X and the father has done what he is obliged to do.
(d)I have considered all possibilities as to the type of contact that X may have with the father and that would affect her, especially if it is that she does not spend time with her father.
(e)This aspect has not really been relevant to the current proceedings.
(f)This aspect has been the pivotal circumstance to consider.
(g)I have taken into account these considerations especially that X has Indian heritage.
(h)This circumstance does not apply
(i)I have thoroughly discussed this circumstance.
(j)I have thoroughly discussed this circumstance.
(k)I have thoroughly discussed this circumstance and have taken into account what the order means for the future of X.
(l)I am very mindful of the fact that there will always be cause for dispute between the parties and that such disputes are very unlikely to be resolved successfully. The orders should be such that there will be little reason for there to be any disputes which would lead to litigation.
(m)I have detailed, in these reasons, all matters that I consider relevant.
Parental responsibility
Under s 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, having regard to the findings I have made, the presumption does not apply and there have been no submissions by any party that it could apply.
Still, I need to decide whether it is in the best interests of X for there to be either equal shared parental responsibility or sole parental responsibility for one of parents.
Once that decision is made, I then need to decide, in the best interests of X, with whom she should live and what time she should spend with the other parent. It has not been the case for any of the parties that X should live anywhere else but with the mother. The real question in this proceeding is what sort of time X should spend with the father and, if she is spending time with her father, what form should that take.
Conclusions on Parenting
It is abundantly clear that these parents will always be in conflict. On the evidence before me, this conflict will be created predominantly because the father is still obsessed with the mother. The email interaction between them in the latter half of 2019, illustrates that the father is far more concerned with the mother than he is with X. In most communications, he does not even capitalize her name and records it as “X”.
The emails are all designed to get a reaction from the mother; whether that be sympathy or anger. Neither reaction seems to matter to the father because it means that the mother has focused on him. The worst behaviour of the father arises when he feels that the mother is ignoring him.
As I have already pointed out, there is no greater example of this fixation upon the mother than the father’s actions on 27 January 2020. His behaviour was purportedly grounded in a belief that he needed to protect X, yet he did nothing to ascertain the well-being of the child that night and focussed all his attention on the mother.
Given this history, any opportunity that the father has to communicate with the mother about X, will be used by him to have the mother give him some attention. If given the opportunity, there is little doubt that the father will use it, and mask his true intentions, by feigning that he is concerned for X.
The father has an appalling record of disregarding the rules; it is as if he believes that the rules do not apply to him. The interactions with contact centre supervisors illustrate this point. At V Centre, the father constantly pushed the rules by coming to the doorway of the centre so that he could see the mother. The fact that this had to be the subject of admonition, on more than one occasion, by the supervisor is indicative of the father doing what he wants until he is prohibited from doing so (and even then he will try to manipulate his way around the prohibition).

Whilst the interaction at AA Centre may have been somewhat improved, the evidence shows that the father still had issues with obeying the rules. The father was chided for talking about inappropriate matters with X. The fact that the father continued to do this is very problematic.
His statement, as recorded by Ms F, that he had changed the rules at the other two contact centres and would change the rules at DD Centre too, show that there is no real insight into his true responsibilities as a parent.
The relationship that he had with X, at the contact centres, was one where he gave her a gift at each contact visit. Strangely, Mr BB did not see anything wrong with this. The father would also allow her to play a videogame on his phone. Surprisingly, the supervisors at AA Centre did not curtail this behaviour.
The problems with this behaviour are self-evident. If the child is greeted with a present every time she sees her father, she will associate her father with the giving of gifts. If it is that she plays video games on his phone, she is not utilising the time to form a proper relationship with the father.
This became evident in what X said to the staff that DD Centre on 10 October 2021. X said that her father always gave her his phone to play with but she liked to play outside and do things and her father didn’t like that. She said that he wants to sit and that she wants someone to play. Later she said that she wanted to go to her father’s house because he had told her that he had lots of things for her at his place. She said that she wanted her birthday present from her father and that he always buys things for her. She said that she told the father she wanted LOL dolls and her father said he would get her the dolls. She was distressed that, because her father was not coming back to the Centre, she wouldn’t be getting her dolls.
Notwithstanding that Ms KK described the relationship as being “warm and loving”, it seems to me that the relationship is very superficial. Even at the family report interviews, the father brought a present for X. X associates her father with presents and receiving material goods. But she also notes that her father “fobs her off” by giving her his phone to play a game so that he does not have to engage himself any more than he wishes to.
There was no expression of a true connection by X; she did not describe any personal attributes that endeared him to her. She did describe that she liked playing with him, but was talking of an aspiration rather than speaking of great memories of them playing together. She did not speak of how he made her feel, whether he was funny or any other aspect. She was not able to describe his personality at all.
There is a great deal of evidence of the father attempting to engage the child in the conflict he has with the mother. The term used by Ms KK is very apt: the father has weaponised X. Despite the father’s denials, I have no doubt that the father has shown her photographs of his face from 27 January 2020 and told the child that the injuries were inflicted upon him by the mother. I have no doubt that he has told the child that the mother needed to apologise to him. I have no doubt that the father has told the child that the mother is the reason that the child cannot go to his house.
The father will not see X as anything other than a vessel that he can manipulate to do his will. And if he spent time with X, he would easily achieve this by showering her with presents and promising her whatever it is that she wants. But he will not be the father that she needs. He will not really play with her or be truly attentive to her needs. When it is that he has gotten what he wants from her (especially if it is information about the mother), he will fob her off with a computer game or some other distraction which won’t involve him. He will belittle her, mock her observations and cause her anguish. He will then excuse his behaviour by twisting the facts and circumstances and shift blame away from himself and onto someone else. He will intimidate X into parroting his excuse and then justify his behaviour by claiming that the child has corroborated his story. And if she doesn’t behave or conform to his wishes, then he will frighten her to the point of melting away all resistance. This is the pattern of behaviour that has manifested itself throughout his interactions with X and, despite completing courses and promising to change his ways, his attitudes and beliefs have not altered one iota.
I cannot see that the Court can put any regime in place where X will be truly safe from the father. The father will continue to weaponise X and to use her in his obsession with the mother.
The ICL has proposed that the mother should be contacted by the father once a year so that the mother can consider any proposal by the father to spend time with the child. Upon receipt of a request, the ICL says that the mother should respond to that request within two weeks.
The ICL also proposes that the father be permitted to communicate to the child by posting to the child a card and gift at Easter, Christmas and on her birthday with the mother to ensure that the child receives the items after considering them suitable for the child.
The ICL also proposes that the mother should email a photograph of the child every six months.
The ICL also proposes that the mother should keep the father informed of the school that the child is attending so that the father can be given information about the child from the school which includes report cards and school photographs.
Whilst on the surface, there may be some merit to the proposals by the ICL, there is little utility in such proposals unless the father is truly interested in the progress of his daughter. On the evidence before me, I cannot see that this is the case. X is merely an ends to the father having interaction with (and control of) the mother. Such orders force the mother to have contact with the father which is all the father truly wants. Those proposals are simply not in the best interests of X.
The current DVO runs out in January 2024. To my mind, this is far too short a period and one could imagine that the father would take advantage of the fact that the restraints are no longer in place as soon as the DVO expired. For this reason, I will be making injunctions protecting the mother as well as X from the father.
The ICL has also proposed that there be an order for the mother to arrange therapeutic counselling for X. The mother had said during her evidence that she would do this in any event. I do not believe that it is necessary for the Court to make this a separate order.
The ICL has also proposed that the mother be ordered to complete an in-person anger management program or to commence private counselling. Unless it is that the mother wishes to undertake such a course, the course will be of no value whatsoever. The course, if taken by the mother, needs to be because the mother recognises the value of such a course. Otherwise it just becomes a “tick a box” undertaking. For this reason, I will not make any such order.
In the best interests of X, the Court will order that the child live with mother and that the mother will have sole parental responsibility for her.
In the best interests of X, the Court will order that she spend no time with the father.
I realise that the orders that I am making could be seen to be harsh. I do not shy away from the fact that they are harsh, but it is necessary to protect the child. It is with regret that any Court would make orders of this sort that do not allow for one parent to interact with a child. But sometimes such orders are the only orders that can bring about the objects of the Act and keep a child safe. It goes without saying that the present matter is one such case.

I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 10 March 2022

File number(s):	BRC 10218 of 2020
Judgment of:	JUDGE VASTA
Date of Judgment:	10 March 2022
Catchwords:	FAMILY LAW – Child – contact – family violence – residence – child’s best interests – sole parental responsibility – behaviour at contact centre - no contact
Legislation:	Family Law Act 1975 (Cth) s 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65C, 65D, 65DAA 65DAB, 65L, 121
Division:	Division 2 Family Law
Number of paragraphs:	225
Date of last submission/s:	17 February 2022
Date of hearing:	15,16 and 17 February 2022
Place:	Brisbane
Counsel for the Applicant:	Ms Barnes
Solicitor for the Applicant:	Hofstee Lawyers
Counsel for the Respondent:	Mr Hughes
Solicitor for the Respondent:	Jurgensen Horne Lawyers
Counsel for the Independent Children's Lawyer:	Mr Carlton
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland

BRC 10218 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MISRA Applicant
AND:	MS QUINN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	10 MARCH 2022