Pachris & Tajir (No 2) - [2022] FedCFamC2F 1296

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pachris & Tajir (No 2) [2022] FedCFamC2F 1296

File number: PAC 3726 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 28 September 2022

Catchwords: FAMILY LAW – CHILDREN – Serious allegations of family violence – Risk – Visual recording tendered during the course of the final hearing where the Court finds that the father perpetrated a sexual assault upon the mother during such recording – Where the father has perpetrated serious family violence including coercive and controlling behaviour – Where the parties had a toxic and dysregulated relationship – Where the risks to the children in spending time with the father are unacceptable and cannot be ameliorated – Injunctive orders made – Orders made for the children to live with the mother and spend no time with the father – Submissions invited as to the father being referred to the New South Wales Police Commissioner for investigation and possible prosecution.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 68B, 68C

United Nations Convention on the Rights of the Child art 19

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

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

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

B v B (1993) FLC 92-357

B & K [2001] FamCA 880

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

Blinko & Blinko [2015] FamCAFC 146

Dieter& Dieter [2007] FamCA 608

Helbig & Rowe [2016] FamCAFC 117

Illgen &Yike [2018] FamCA 17

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane (2021) 62 Fam LR 190

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

Kuhlv Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

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

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

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

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

R & C [1993] FamCA 62

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

Zuen and Lhao [2020] FamCAFC 84

Division: Division 2 Family Law

Number of paragraphs: 282

Date of hearing: 24, 25, 26, 27 May 2022

Place: Parramatta

Counsel for the Applicant: Mr Givney

Solicitor for the Applicant: Apex Legal

Counsel for the Respondent: Ms Lioumis

Solicitor for the Respondent: Santo Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Conte-Mills

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

PAC 3726 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PACHRIS

Applicant

AND:
MS TAJIR

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MURDOCH

DATE OF ORDER:

28 September 2022

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for X born in 2015 and Y born in 2017 (“the children”).
2.The children live with the Mother.
3.The children spend no time with the Father.
4.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father is restrained from:
(a)Approaching or contacting the Mother or children by any means including electronic communication;
(b)Causing or threatening to cause bodily harm to the Mother;
(c)Harassing or stalking the Mother; and
(d)Coming within 100 metres of:
(i)The Mother’s home; and
(ii)The children’s school(s), before/after school care or any extra-curricular program at which the children may attend.

5.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the Father has breached Order 4 the police officer may arrest the Father without warrant and the Father be brought before the Suburb C Registry of the Federal Circuit and Family Court of Australia or any other court exercising jurisdiction under the Family Law Act 1975 (Cth), on the first day on which the Court sits after the arrest, or as soon as possible after that date, AND IT IS NOTED that pursuant to section 122AA of the Family Law Act 1975 (Cth) a person who is authorised or directed by a provision of the Family Law Act 1975 (Cth), to arrest another person may use such reasonable force as it is necessary to make the arrest or to prevent the escape of the person under the arrest.
6.Leave is granted to the Mother to provide a copy of these Orders to the New South Wales Police and any school, daycare or other school or extra-curricular program at which the children may attend.
7.The Mother is restrained from allowing the children to come into contact with Mr D born in 1986 and/or Mr E born in 1988.
8.All material marked as an Exhibit in these proceedings be sealed and marked “not to be inspected or viewed without leave of the Court”.
9.Any application to view any Exhibits in the proceedings is to be by way of filing an Application in a Proceeding together with an Affidavit in support and is to be heard by a Judge of this Court or the Appeals Registrar of the Appellant Division of the Federal Circuit and Family Court of Australia (Division 1) only.
10.Leave is granted to the Mother to provide a copy of the Family Report dated 24 March 2022 and these reasons to any counsellor she or the children may attend upon.
11.In light of the evidence and findings recorded in paragraphs 101, 114, 115, 123, 125 and 127 of these reasons, the parties and the Independent Children’s Lawyer are to provide any written submissions they wish to make of no more than 3 pages in length by no later than 4:00 pm on 14 October 2022 as to the Father being referred to the New South Wales Police Commissioner for investigation and possible prosecution.

THE COURT DECLARES THAT:
12.Pursuant to sections 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Applicant Father to enable the children of the relationship X born in 2015 and Y born in 2017 to obtain an Australian Passport to travel internationally, the Court makes the following Orders.

IT IS ORDERED BY THE COURT THAT:
13.The Mother of the children X born in 2015 and Y born in 2017 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Applicant Father.
14.Paragraphs 8 and 9 of the Orders made in the Federal Circuit and Family Court of Australia on 23 November 2021 are discharged.
15.The children X born in 2015 and Y born in 2017 (‘the children”) be permitted to leave the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police remove the names of the children from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
16.The costs of each of the parties and the Independent Children’s Lawyer are reserved for a period of 28 days from the date of these Orders.
17.The Independent Children’s Lawyer is discharged as and from the determination of any costs issue.
18.All extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pachris & Tajir (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION

These are parenting proceedings with respect to the children:-
·X born in 2015, currently six years and 10 months of age; and
·Y born in 2017, currently five years and seven months of age. (“the children”).
The children have not seen the father since the parties’ final separation on 5 April 2021.
The mother is the uncontested resident parent of the children. The issues for determination include the allocation of parental responsibility and what time, if any, the children will spend with the father.
The mother alleges that the father has occasioned serious family violence upon her including sexual, physical and verbal assaults. She contends that the father poses an unacceptable risk to the children and that there are no orders that this Court could make that would ameliorate such risk to make it acceptable. The mother further alleges that the children spending time with the father would adversely impact upon her parenting capacity.
The mother’s position that there be no orders for time between the children and the father is supported by the Independent Children’s Lawyer.
The father alleges that the mother has simply made up the allegations of serious family violence to ensure that he does not spend time with the children and the mother herself engaged in family violence. That said, he seeks orders that the children live with the mother.
For the reasons that follow the mother shall have sole parental responsibility for the children. It is further found that on balance, it is in the children’s best interests for orders to be made that they spend no time with the father.
THE COMPETING PROPOSALS
The father seeks orders on a final basis in accordance with the Amended Application for Final Orders filed on 3 November 2021 broadly that:-
·The parties have equal shared parental responsibility for the children;
·The children live with the mother;
·The mother be restrained from changing the children’s address beyond a 5 km radius of the Suburb C area;
·The children spend time with the father each alternate weekend from Friday night to Sunday night and Thursday overnight in the alternate week together with a Facetime call each night when the children are not spending time with him;
·The children spend block periods of holiday time with the father and on special occasions including Father’s Day and the children’s birthdays;
·Changeover of the children between the parties’ households to occur at the Suburb C McDonalds;
·The mother be restrained from allowing the children to come into contact with her brothers Mr D and Mr E;
·Various orders restraining the behaviour of both parties;
·Orders as to the provision of information and authorities regarding the parties’ ability to communicate with third parties regarding the children; and
·Orders with respect to the placement of the children on the Family Law Watchlist, the provision of passports and as to interstate and overseas travel.
During the course of final submissions, the father broadly adopted the recommendations of the Child Court Expert as to the time arrangements. A written form of the orders the father now seeks was not provided to the Court, however the Child Court Expert recommends that:-
·if the Court determined that the father has not perpetrated coercive controlling violence; and
·if it is determined that the children are not otherwise at risk of spending time with him, then the children spend time with the father on alternate weekends from Friday after school until Monday before school.
During submissions the mother indicated her support for the orders sought by the Independent Children’s Lawyer in the Minute of Order tendered on 27 May 2022 broadly that:-
·The mother have sole parental responsibility for the children;
·The children live with the mother and spend no time with the father;
·Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from approaching or communicating with the children or the mother by any means;
·The mother be restrained from allowing the children to be unaccompanied by her in the presence of/being left in the sole care of Mr D and/or Mr E; and
·That the children may be issued passports without the consent of the father.
Thus the main issues for the Court to determine are:-
·The allocation of parental responsibility.
·Whether the father is to spend any time with the children and if so, the nature such time will take.
·Whether an order be made pursuant to s 68B of the Act for the protection of the children and the mother.
·Whether the children should be placed on the Airport Watchlist.
·Whether there should be any injunctive orders with respect to the children coming into contact with Mr D and Mr E and if so, the extent of such injunctive orders.
·Whether the mother should be restrained from changing the children’s address beyond a 5km radius from the Suburb C area.
THE EVIDENCE
The father relied on the:-
·Amended Initiating Application filed 3 November 2021;
·Affidavit of the father sworn 7 April 2022 and filed 11 April 2022;
·Affidavit of the father filed 23 May 2022 (with leave);
·Family Report of Ms F dated 24 March 2022;
·Orders made 23 November 2021;
·Outline of Case Document (Final Hearing) filed 23 May 2022; and
·Voluminous material tendered during the course of the hearing.
The mother relied on the:-
·Response to Initiating Application filed 25 October 2021;
·Notice of Child Abuse, Family Violence or Risk filed 25 October 2021;
·Affidavit of the mother filed 7 April 2022;
·Affidavit of Ms G filed 7 April 2022;
·Affidavit of Ms H filed 7 April 2022;
·Affidavit of Mr J filed 7 April 2022;
·Family Report of Ms F dated 24 March 2022;
·Affidavit of the mother filed 19 April 2022 (over objection);
·Affidavit of the mother filed 18 May 2022;
·Outline of Case Document (Final Hearing) filed 19 May 2022; and
·Material tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the:-
·Family Report of Ms F dated 24 March 2022;
·Minute of Order marked Exhibit ICL3;
·Outline of Case (Final Hearing) filed 19 May 2022; and
·Material tendered during the course of the hearing.
Without objection a direction was made at the commencement of the hearing that exhibits to affidavits would not be read by me unless they were tendered or specifically referred to during the course of final submissions.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447. I will address this in more detail later in these reasons.
Background
The father was born in 1985 and is currently 36 years of age.
The mother was born in 1991 and is currently 30 years of age.
The father’s child from a previous relationship, B, was born in 2011.
The parties married in 2014 in an Islamic ceremony and in 2015 under Australian law.
X was born in 2015.
The mother asserts that the father left the home from about December 2016 returning in February 2017. The father concedes that the parties did experience difficulties during this time. Nothing turns on this.
Y was born in 2017.
The parties separated for a period during 2017 and had an “on again, off again” relationship up until November 2019 when they separated and the father vacated the home. The father alleges that the parties obtained an Islamic divorce at this time.
From November 2019 to February 2020 the father did not see the children.
The parties reconciled in late February 2020 and remarried in accordance with Islamic tradition in 2020.
The parties separated on a final basis on 5 April 2021. At this time the father vacated the home and commenced living with the paternal grandmother. The children have lived with the mother and not spent any time with the father subsequent to the parties’ final separation.
On 15 April 2021 the father was charged with stalking the mother and the Police applied for and obtained a provisional Apprehended Domestic Violence Order.
In May 2021 the father was charged with the following offences allegedly perpetrated against the mother:
·Assault occasioning actual bodily harm; and
·Install/use listening device to record a private conversation.
The father secured his own rental accommodation in approximately May 2021.
The father initiated these proceedings on 9 July 2021.
The mother vacated the home previously occupied by the parties with the children in August 2021. She remains living within the Sydney region.
On 23 November 2021 interim Orders were made on a defended basis that the children spend no time with the father and the father be restrained from approaching or contacting the children or the mother through any means.
Various interim Orders were made by consent on this day including:-
·That the children live with the mother;
·Various injunctive orders restraining the behaviour of both parties;
·Orders as to the ability of the parties to receive information relating to the children;
·An Order restraining the parties from removing the children from Australia; and
·That both parties undertake hair follicle testing for the purposes of the analysis of drug use as requested by the Independent Children’s Lawyer.
On 1 April 2022 the father’s criminal proceedings were listed in the Suburb C Local Court. The Police withdrew all of the charges and the provisional Apprehended Domestic Violence Order was discharged.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms F (“the Court Child Expert”). The Court Child Expert has tertiary qualifications including a Bachelor of Social Work/Arts (Sociology) and a Graduate Certificate in Mental Health (Child and Adolescent). She has had extensive experience as a social worker and volunteer counsellor. As a Court Child Expert for almost 5 years she has undertaken training in domestic violence informed practice. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the Court.
The Court Child Expert conducted brief telephone interviews with each of the parties separately on 14 February 2022 and video interviews on 21 February 2022. Both the children were interviewed in person at the registry on 22 February 2022. The children were observed with the mother at the Parramatta Registry on 23 February 2022. The children were not observed with the father.
The Court Child Expert opined that whilst an observation between the children and the father may have provided some information regarding the father’s capacity to respond to the children following the disruption in the relationship, given that the children have spent no time with the father for a period of almost one year a reintroduction by way of an observation could negatively impact the children, particularly if subsequent orders were made by the court for the children to spend no time with the father thereby creating a further disruption to the relationship. The Court Child Expert was of the view that an observation of the children and the father was unlikely to be in their bests interests given the significant risks identified in this matter. She further opined that it was unlikely that an observation would have been of benefit for the purposes of the Family Report in any event.

The Court Child Expert had access to and read a wide range of material including some of the material produced under subpoena.
The Family Report recommended that:-
·unless the evidence before the court suggests otherwise, the mother have sole parental responsibility for the children and the children live with her;
·if the court determines that the father has perpetrated coercive controlling family violence, orders be made that provide for the children to spend no time with him; and
·if the Court determined that the father has not perpetrated coercive controlling family violence and it is determined that the children are not otherwise at risk of spending time with him, the children spend time with the father on a graduated basis commencing with time each alternate Saturday for a period of three hours at a children’s contact centre and culminating in alternate weekends from Friday after school until Monday before school.
An Application in a Proceeding filed by the father shortly prior to the final hearing and listed for determination on the first day sought orders that the children be observed with the father by the Court Child Expert. This application was denied and a short judgment provided. These reasons incorporate such ex tempore reasons.
It was submitted by the father that the Family Report lacks balance as the Court Child Expert:-
·has not “seen…80 per cent of the evidence in this case”,[1] including specifically all of the text messages between the parties;
·did not consider the short term and long-term effects of the children not seeing their father; and
·the children were not introduced to the father in an observation session.
[1] Transcript 27 May 2022, p.104 line 35.
I am not satisfied that the Family Report lacks balance. It is not the task of the Court Child Expert to make findings of fact and therefore unnecessary for her to read every document tendered in the matter at a final hearing. The Court Child Expert’s recommendations clearly pivoted on the determination to be made by the Court as to whether family violence has been perpetrated by the father and whether the children are placed at risk in spending time with him. Whilst the written Family Report did not address the ramifications of these young children not seeing their father again, this limitation was specifically addressed by the Court Child Expert during the course of her cross-examination by counsel for the father.
Neither party took issue with the Court Child Expert’s reporting of their conversations with her during the course of the interviews.
During the course of her oral evidence the Court Child Expert clearly affirmed her written recommendations. Such recommendations, as is appropriate, clearly turned on the findings of fact to be made by me as to the allegations of family violence.
Based on the findings I will make later in these reasons, I am satisfied and find that it was appropriate for the Court Child Expert to not observe the children’s interactions with the father. I am not satisfied that this was a limitation to the report such that I would attach less weight to it.
The Court Child Expert gave her oral evidence in a clear and measured manner. She was a credible witnesses and I give significant weight to her expert written and oral evidence.
THE CHILDREN
Both children are in good health and are settled in school. X is in year 1 at K School, Suburb L. He has been described by each of the parties as a caring child. The Court Child Expert reports that X presented as an “interactive, friendly and talkative child.”[2] There are no apparent behavioural concerns and he appears to be performing well academically. Y is in kindergarten at K School. It does not appear to be in dispute that she is a bubbly, happy child.
[2] Family Report dated 24 March 2022, paragraph 63.
THE PARTIES
Both parties are of Country M cultural background. The parties and children practice the Islamic faith.
The father is currently renting a two-bedroom apartment in south western Sydney. He is employed as a professional and works weekdays from 9:00 am to 5:00 pm. The father has successfully completed several parenting courses and programs including the “Circle of Security”, “Bringing up Great Kids”, “1-2-3 Magic & Emotion Coaching”, “Tuning in to Kids” and “Keeping Children Safe.” The father has a child from a prior relationship, B with whom he spends time on a regular basis by arrangement with B’s mother.
The mother and the children live in the inner west of Sydney. The mother currently works five days per week as a sales assistant.
CREDIBILITY OF THE WITNESSES
Both parties make allegations that the other has perpetrated serious family violence, including in the presence of the children. Generally the court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings: Adamson & Adamson (2014) FLC 93-622.
In this matter however the evidence in support of such allegations is predominately that of each party. Issues of credit are therefore critical to the ultimate determination of the issues in this matter.
Both parties had to be directed by me during the course of their cross-examination to answer the questions asked of them.
The mother gives clear, detailed and specific evidence in her affidavit of her allegations as to the family violence perpetrated by the father, both to herself and to X. The father’s case consisted, for the most part, of blanket denials of the mother’s allegations. It was difficult therefore for his veracity to be attacked.
It was said by the plurality in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384 that:
62. …Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call)…
The father’s evidence often fell short of this standard. I found as a whole his evidence to be inconsistent and unconvincing. A significant portion of the father’s responses to questions asked of him was “I don’t recall” or “I don’t remember” even with respect to questions the father should have been able to answer. His tone was smug and arrogant. I found him to be insincere in his responses;- “I don’t recall, I do apologise.” At one stage I observed the father to start laughing during the course of cross-examination prompting the following exchange between counsel for the mother and the father:
[COUNSEL FOR THE MOTHER] See, I suggest to you, sir – sorry, is there something funny, sir?
[THE FATHER] No, I’m just looking at that message.
[COUNSEL FOR THE MOTHER] Well, nothing funny about this cross-examination is there, sir?
[THE FATHER] No. I get twitches on my lips.
[COUNSEL FOR THE MOTHER] I see?
[THE FATHER] I just shaved.[3]
[3] Transcript 24 May 2022, p.44 lines 12-18.
I find this answer to be indicative of the father’s attitude during the course of his cross-examination.
I am satisfied and find that when the father perceived his answer to a question would not assist his case he would simply respond “I don’t know how to respond to that. I’m sorry.”[4]
[4] Transcript 24 May 2022, p.68 line 47.
I view the oral evidence of the father with caution.
The mother was clear and firm in her responses during the course of her oral evidence. She did not waiver. Whilst the mother did not always answer the question that was specifically put to her by counsel, I do not find that she was trying to avoid or be evasive in her responses – she was keen to put her evidence before the court such that on occasion she was unable to allow counsel to complete the question before she answered it. The mother was unequivocal in her evidence as to the allegations of sexual and physical assaults she asserted the father occasioned upon her. I found her to be a credible witness.
Mr J, the brother-in-law of the mother, was briefly cross-examined. He gave his evidence in a frank and considered manner. There is no reason to doubt his evidence and I accept it.
Ms H, a friend of the mother’s, was also briefly cross-examined. She was clear and unequivocal in her answers. I accept her evidence.
The mother has been attending upon Ms N, a social worker and Victim’s Services Counsellor with the Department of Justice New South Wales for counselling since August 2021. Ms N prepared an affidavit for the mother. She was not available for the purposes of cross-examination. I am unaware as to her qualifications and expertise. In those circumstances I give little weight to her evidence.
THE LAW
Section 65D of the Family Law Act 1975 (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The objects of the Act as set out in s 60B is to ensure that the best interests of a children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”). Article 19 of the Convention on the Rights of the Child requires parties to the Convention to take steps, including through “judicial involvement”, to:
…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence. Having regard to the serious nature of the allegations in this matter considerations of protecting the children from harm loom large.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between the children and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518. This is an important consideration in this case given the length of time it has been since the children have spent time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119] adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to the children in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to the children in the circumstances of such a relationship.
The Full Court continued in McCall & Clark (2009) FLC 93-405, 83,476 that:
[122]…No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The father’s proposal that the parties have equal shared parental responsibility and that the children spend alternate weekend overnight time with him would mean that the children would share a meaningful relationship with both of the parties.
The proposal of the mother and the Independent Children’s Lawyer that the mother have sole parental responsibility and the children spend no time with the father would mean that the children would have no relationship with the father.
Family Violence
Risk issues as to the children spending time with the father loom large in this matter. There are a number of specific contentions about matters relating to the children’s best interests that depend in part upon findings as to family violence including the allocation of parental responsibility. The standard of proof with respect to such findings is the balance of probabilities: s 140 of the Evidence Act 1995 (Cth). Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268, 282 at [88].
The mother alleges that the father perpetrated serious family violence upon her both during the course of the parties’ relationship and post-separation, with such violence including sexual and physical assaults, verbal abuse and coercive and controlling behaviour. She further alleges that family violence was perpetrated by the father in front of the children and upon X.
It is the father’s evidence that all sexual encounters between the parties have been consensual. The father alleges that the mother has made up these allegations so that he will not be able to exercise any time with the children. He denies that he has occasioned physical violence upon the mother. The father alleges that the mother was verbally and physically abusive to him and engaged in controlling behaviours.
Family violence is defined in s 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence which includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
…
(i) preventing the family member from making or keeping connections with his or her family, friends or culture…
Such behaviour must still meet the definition as contained within s 4AB(1).
Justice Gill analysed the terms “coerce and control” in Illgen & Yike [2018] FamCA 17 at [123]-[125] as follows:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Section 4AB(3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating (2019) FLC 93-894. As the Full Court stated in Amador & Amador (2009) 43 Fam LR 268, 280:
[79]…To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
…
[81]The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.
The Parties’ Relationship

It does not appear to be in dispute and I so find that these parties had a highly toxic and dysfunctional relationship as evidenced in their written messages to each other. It appears that both parties engage in profanities and swearing as a matter of course during their communications with each other. The parties’ communications to each other does neither of them credit. Both parties are abusive in their written communications with each other. The mother’s messages to the father concerning the father’s daughter B are upsetting to read and do the mother no credit.
The mother deposes that after arguments between the parties she would often be on her knees begging the father not to leave. The father conceded in cross-examination that the mother did on occasion beg him not to leave and I find that this occurred. I accept and find having regard to the voluminous messages between the parties in evidence that the nature of this volatile relationship included the parties using the most abusive language to each other and then reconciling and sending loving messages shortly thereafter. I accept and find that the text or Whatsapp messages were not the only means of communication between the parties. I accept the submissions of counsel for the mother that the messages that were exchanged between the parties are examples of a “dysregulated relationship where both parties were acting in a way that did neither of them any credit.”[5]
[5] Transcript 27 May 2022, p.93 lines 17-18.
The mother’s answers in cross-examination were enlightening and perhaps explained the dynamic of this relationship:
[COUNSEL FOR THE FATHER] So were you frightened of him?
[THE MOTHER] Yes and no.
[COUNSEL FOR THE FATHER] Was it like?
[THE MOTHER] Sorry. Yes, in a sense of he
[COUNSEL FOR THE FATHER] Let me?
[THE MOTHER] would always threaten to do – take matters further and cut me off in many ways and that he will ruin me and the children
[COUNSEL FOR THE FATHER] Was?
[THE MOTHER] or he will end my life as I’m sleeping so, yes, and then no because I also loved him at the time.[6]
[6] Transcript 26 May 2022, p.123 line 47 to p.124 line 7.
The Mother’s Allegations
The mother is the uncontested resident parent of the children. The focus in those circumstances is on the risk issues the mother alleges arise in the children spending any time with the father. The mother makes extensive allegations of incidences of sexual, physical and verbal assaults occasioned upon her by the father. She further provides significant evidence of incidents she asserts proves the father engaged in coercive and controlling behaviour. Whilst I have read and considered all of the evidence, in light of the findings I make later in these reasons it is not necessary for me to ground the reasons for my decision by traversing in this judgment each and every allegation raised by the mother. To do so would cause extensive delay in my ability to publish these reasons and preclude the timely resolution of both this matter and other matters awaiting judgment to be delivered.
I focus on the following:-
·the allegation that the father sexually assaulted the mother in February 2020;
·six of the allegations made by the mother as to physical assaults perpetrated upon her by the father;
·the social media postings of the father post-separation;
·the nature of the communications between the parties;
·allegations as to other forms of coercive of controlling behaviour exhibited by the father;
·allegations as to illicit drug use by the father.
The Allegation of Sexual Assault in February 2020
The mother deposes in her affidavit filed 7 April 2022 that according to her religious beliefs it is forbidden to have anal sex - it is a sin, a great shame and an indignity. She alleges that on approximately 12 occasions between 2019 and 2021 the father forced her to engage in anal sex. She deposes that on each of these occasions she screamed and begged the father to stop but he did not listen. The mother reported to the Court Child Expert that over time she learnt to “numb myself emotionally” during the reported assaults.[7]
[7] Family Report dated 24 March 2022, paragraph 44.
The mother alleges that on one such occasion between 2019 – 2021 upon the father forcing her to engage in anal sex she cried and tried to scramble out of his grasp whereupon the father put a pillow over her head to muffle her screams and she could not breathe. She deposes that: “While having anal sex with me he said to me words to the following effect: “Just keep trying it.” [and] “Shut up and take it.””[8] The mother deposes that as with other occasions, it was incredibly painful; she could not sit for several days and had difficulties with bowel movements.
[8] Mother’s affidavit filed 7 April 2022, paragraph 117.
By way of his affidavit filed 11 April 2022 the father denies all allegations made by the mother of non-consensual sexual intercourse. The father deposes that he has never physically or sexually assaulted or otherwise harmed the mother. The father specifically deposes, being aware of the nature and content of the allegations made by the mother in her trial affidavit, that he has never engaged in anal sex with the mother “or any woman”. He agrees with the mother’s evidence that anal sex is considered to be taboo in the Islamic religion. He deposes that the parties had an active sex life and their consensual sexual encounters were often recorded by the mother on her phone.
By way of a further affidavit filed on 19 April 2022 the mother deposes that at the final hearing she would rely upon and tender a video recording of either the 20 or 21 February 2020 depicting the father and mother engaging in sexual intercourse (“the recording”). The mother deposes in this affidavit: -
·That once or twice a year during the course of the relationship the parties would consensually record themselves engaging in sexual intercourse.
·The recording was taken with both parties’ consent however after the incident took place on 20 or 21 February 2020 the father requested the mother delete it. Wanting to keep the recording the mother sent it to X’s telephone who was asleep at the time and then re-sent it back to her phone so that she could save it in a separate file. The mother thereafter deleted the original recording from both X’s and her phone.
·The recording was too long and she was only able to send a portion of the video. Thus only three minutes and 20 seconds of the entire recording has been saved.
·The mother details events occurring during the course of the recording including her explanations as to her conduct throughout same.
·A copy of the recording was provided to the New South Wales police on 17 March 2022. At this time the mother alleges that the officer said she should not show the video to anyone else and to not use it in her family law proceedings. She has tried contacting the police subsequent to this but has not received a response.
·The mother informed her solicitors as to the existence of the video on 5 April 2022.
A further affidavit of the mother filed 18 May 2022 deposes that:-
·The affidavit of the mother deposing as to the fact and content of the recording was served on the father’s solicitor and the Independent Children’s Lawyer on the day it was filed; being 19 April 2022.
·The mother’s solicitors proposed that the recording be provided to both the father and Independent Children’s Lawyer upon them signing undertakings that they would not further distribute the recording.
·The Independent Children’s Lawyer provided such an undertaking on the same day and the recording was thereafter provided to him.
·On 27 April 2022 the father’s solicitors advised that they did not wish to view the recording and as such would not be signing the undertaking. They stated that the late filing of the mother’s affidavit and the associated recording would be objected to.
Specifically as to the alleged events of 20 or 21 February 2020 the mother’s affidavit of 19 April 2022 deposes that:-
·On the evening of either 20 or 21 February 2020 during a period when the mother and father were separated, the father came to her home of an evening when the children were asleep. The father conceded that during this period of time he was not seeing the children and this was a cause of contention and an argument between the parties.
·She invited the father to view the children who were asleep after which they commenced kissing.
·The father removed his shorts and pushed the mother down so she was sitting on the couch and her head was level with his penis whereupon he grabbed the back of the mother’s head and pushed it against his penis forcing his penis into her mouth. The mother at one point pushed him back and said words to the effect of “This is not happening. We are not together yet.”[9]
·The father carried the mother into the bedroom where they lay on the bed with the father on top of her and they began kissing.
·The father began removing the mother’s clothes and then told the mother to record the sexual encounter. The mother took out her mobile phone, placed it on the bedside table to the left of the bed angling it towards both of the parties and pressed the recording button whilst the father was watching.
·The parties then re-commenced kissing before commencing vaginal intercourse.
·The father commenced grabbing the mother aggressively and slapping her. The mother did not say anything as she felt scared.
·The father then grabbed the mother and pushed her down so that her head was in line with his penis and he pushed his penis into her mouth for a few seconds.
·The father then grabbed the mother again and turned her over so that she was in front of the father on her hands and knees. The father was behind the mother and inserted his penis into her vagina.
[9] Mother’s affidavit filed 19 April 2022, paragraph 9.
It is from this time that the recording commences. The recording was tendered into evidence over objection. Having watched the video recording I am satisfied that the mother’s affidavit save for one minor exception as recorded later in these reasons is a correct transcript of the video recording. The affidavit further contains a commentary by the mother as to the events that occurred.
I observed the following events in the recording:
·The mother is lying on her stomach on the bed. The father takes his penis and presses it against the mother’s anus at which time the mother says: “No. You said you loved me.”
·The father keeps trying to press his penis into the mother’s anus at which time the mother says: “I want to ride you. I want to ride you. I really want to ride you. I really want to.” The mother deposes that she said this as “[at] least I could get out from underneath Mr Pachris”[10]
[10] Mother’s affidavit filed 19 April 2022, paragraph 12.
·The mother deposes that at this time the father’s penis then went back into her vagina and he began penetrating her and she pretended to enjoy herself by making moaning sounds. She deposes that she was struggling to breathe and her heart was racing. The mother says: “so good”. This continues for approximately 20 seconds.
·The recording shows the father then again attempting to insert his penis into the mother’s anus. The mother commences whimpering and in a crying tone says: “Baby, baby.”
·The mother deposes that the father’s penis then went back into her vagina and she again pretends to enjoy herself by moaning.
·The recording then depicts the father saying: “It’s not in your arse is it.” The father reaches down and shifts his penis into the mother’s anus.
·The mother cries out and in a whimpering voice again says: “Baby. Babe please.”
·The father in an aggressive tone says: “Shut up. Shut up. I am not going to do it. I am not going to do it. I am not going to do it. Shut up. Shut up.”
·The mother in a whimpering voice is saying: “Please. Please. I am begging you.”
·The mother deposes that the father then again penetrates her anus. The recording shows the mother again crying out. The father pushes a pillow towards the mother’s mouth. The mother says: “Babe, I can’t see. What’s wrong with you.”
·The recording shows the father grabbing the mother’s left arm and moving it out of his way whilst still holding the mother with his right arm.
·The mother is crying and says: “I’m recording this. What is wrong with you.”
·The father says to the mother: ‘Stop it. I am not going to go all the way down.”
·The mother cries out loudly and then cries to the father: “You’re hurting me!”
·The father whispers into the mother’s ear: “Shush it’s alright.”
·The mother is whimpering and says to the father: “I am not enjoying this.”
·The father is still holding the mother with his right arm. He says to her: “Remember what I told you what I would do to you. Remember, I told you.”
·The mother cries: “I told you I was sorry.”
·The father says: “Huh?”
·The mother says: “I’m sorry, I told you I was sorry. I told…I told…”
·The mother is at this stage in obvious pain and crying out whilst the father continues to penetrate her anally. The father then stops penetrating the mother and says: “Are you okay.” The mother is still crying and says: “It hurts”.
·The father’ tone changes and he says in a caring voice to the mother: “It’s hurting that much? You want me to stop?”
·The mother’s affidavit at this stage deposes that she said: “I don’t you to stop.” From my viewing and hearing the recording what I heard was the mother say to the father: “I told you stop. I told you stop.”
·The father then whispers to the mother: “Shush. I am going to stay like this…. shush.”
·The father’s tone then changes and he says to the mother: “When you do that shit again, that’s what happens.” The father then continues again to anally penetrate the mother. The mother is crying out: “I said sorry. I said sorry.”
·The father says: “Okay” whilst continuing his penetration of the mother.
·The mother says again: “I said sorry.”
·The father says: “Shush….. It’s going to stay, it’s not going any deeper. Okay.”
·The mother says: “You’re so mean, you’re so mean.”
·Father: “shhh…”
·The mother then says in a quieter voice: “I am never going to trust you again.”
·The father again then says “Shhh…” After a second the father then stops his penetration of the mother and says in a threatening tone: “What did you say? Say it again.”
·The mother says: “Nothing, nothing.”
·The father continues penetrating the mother and stares straight into the line of sight of the video recording for approximately 8 seconds.
·The recording then stops.
The mother deposes in her affidavit that sometime later the father ejaculated into her anus however she has little recollection of what happened afterwards. The mother deposes that she recalls going to the en suite bathroom whilst crying and observing bleeding from her anus.
At the time of the commencement of the hearing neither the father nor his legal representatives had viewed the recording.
The father did not seek at any time to adduce evidence in reply to the mother’s evidence.
During the course of cross-examination the father again, despite being aware of the existence of the recording, denied:
·that he has ever sexually assaulted the mother;
·that he has ever had anal sex with the mother;
·that there were times from 2016 where sexual intercourse with the mother was rough and aggressive;
·that during sexual intercourse the mother has ever told him that he was hurting her;
·there has ever been a time where the mother has cried out in pain;
·there has ever been a time where the mother asked him to stop having sex with her;
·the mother ever had cause for complaint about his conduct sexually towards her.
The father’s evidence during the course of cross-examination as to this evidence was inconsistent – sometimes the answers to two questions in a row were completely contradictory.
The father’s oral evidence was at first that he could not recall consenting on 20 February 2020 to a recording being made of the parties having sexual intercourse; in fact he did not recall February 2020. He then conceded that he recalled telling the mother that he wanted to record them so that he could watch it in his own time as he would rather watch them than someone else, meaning that he wanted to watch he and the mother have sexual intercourse rather than watching any pornography.
The father agreed that the parties engaged in consensual oral sex. He denied picking the mother up and lifting her over his shoulder to the bedroom. He then conceded he picked the mother up. Upon being asked if he carried her to the bedroom he then conceded that he picked the mother up and carried her to the bedroom “in a different form.”[11]
[11] Transcript 24 May 2022, p.8 lines 27-28.
Again the father did not recall the mother starting to record them having sexual relations on her phone. He did not recall the mother specifically putting the phone on the bedside table to the left, angling it towards them and pressing the record button. In answer to the query that if there was video footage of the father looking at the phone being recorded the father’s response was “I was just probably looking around.”[12] Having viewed the recording I find this inherently unbelievable.
[12] Transcript 24 May 2022, p.8 line 43.
The father recalled having vaginal sexual relations with the mother but asserted that he did not recall any other particular aspect of this occasion. The following exchange took place:
[COUNSEL FOR THE MOTHER] Sir, I suggest to you that Ms Tajir at no stage during your relationship agreed to you putting your penis in her anus?
[THE FATHER] Yes. No. I can’t remember that far.
[COUNSEL FOR THE MOTHER] You certainly say though, sir, don’t you, that you never had anal sex with Ms Tajir, don’t you?
[THE FATHER] Don’t recall I had.
[COUNSEL FOR THE MOTHER] You don’t recall you had?
[THE FATHER] Don’t recall I have. I don’t think I have.[13]
[13] Transcript 24 May 2022, p.9 lines 37-43.
Counsel for the mother in cross-examination of the father went step by step through the sequence of events as deposed to by the mother and shown in the recording. The father answered on no less than thirty two occasions that he could not recall the specific sequence of events being put to him: “I do not recall.” Despite not being able to recall most of the alleged incident, his evidence was that he was able to specifically recall that:-
·he did not know that the mother was recording the encounter;
·he did not have a recollection of the event, but that when the parties reconciled, they had sex but there were no videos; and that
·the sexual encounter was not taped.
He denied having anal sex with the mother without her consent. He denied threatening the mother.
The father’s tone during the course of this cross-examination was smug, defensive, evasive and argumentative. He asserted to counsel for the mother that if the event had occurred as alleged, the parties would not have remarried two weeks later. The father was unresponsive to questions requiring me to remind him that it was counsel’s role to ask questions and his role as a witness to answer them.
After the father’s denials the matter was adjourned for a period of 10 minutes to allow him to view the recording. Upon the father returning to the witness box the following exchange took place:
[COUNSEL FOR THE MOTHER] So, [Mr Pachris], you’ve now had the opportunity to view that videotape, yes?
[THE FATHER] Correct.
[COUNSEL FOR THE MOTHER] And you would agree with me that during the course of the videotape the mother screams?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] You would agree with me that you hold the mother by her arms?
[THE FATHER] Correct.
[COUNSEL FOR THE MOTHER] And that you move and she says, “Ow, ow, ow,” repeatedly?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you would agree with me that you said to her, “Shut up, shut up”?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you would agree with me that when you – when she said to you, “Please, please, I’m begging you”?
[THE FATHER] Yes.
….
[COUNSEL FOR THE MOTHER] Do you accept from me that during the course of that video you had anal intercourse with the mother?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And that you understand what I’m saying there?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] Thank you. And do you agree that she told you that it hurts?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And that she asked you to – and that you asked her, “Do you want me to stop”?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] Do you agree that you said to her, “When you do this shit again that’s what happens”?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And do you agree with me that when you said that you were threatening her?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] Do you agree that the mother hearing that, after you had anally penetrated her, would perceive that as a threat?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] Because you know, don’t you, that after that incident the mother was bleeding from her anus?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And that she was in a great deal of pain?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And she was crying?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And do you agree with me that she said to you, “You’re so mean”?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And that she was never going to trust you again?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And after she said that you said, “Shh. What did you say? Say it again”?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you said that, would you accept from me, in a threatening voice?
[THE FATHER] No
[COUNSEL FOR THE MOTHER] And she said, “Nothing, nothing”?
[THE FATHER] Yes, and giggles…[14]
[14] Transcript 24 May 2022, p.15 line 26 to p.16 line 41.

The video tape was then tendered and marked as Exhibit M1 over objection. The father’s cross-examination then continued.
[COUNSEL FOR THE MOTHER] Now, I suggest to you, sir, that during the course of that sexual interplay between you and the mother the mother did not consent to you having anal sex with her?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you knew that she did not consent?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And that you had anal sex with her without her permission?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] You see, sir, that evidence is inconsistent, isn’t it? You knew she didn’t want to have anal sex with you?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] She told you that it hurt?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] She told you to stop?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you didn’t, did you?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And you continued to have anal sex with her?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you did so without her consent?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And you didn’t stop when she was moving to get away from you?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you didn’t stop when she was crying?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] And you didn’t stop when she screamed out?
[THE FATHER] Yes.
[COUNSEL FOR THE MOTHER] Are you saying yes because you’re agreeing me that you didn’t stop?
[THE FATHER] No, I’m just saying yes because towards the end of the video she’s laughing. So that’s what – you’re saying crying. I didn’t hear cries. In – in the video she was laughing.
[COUNSEL FOR THE MOTHER] All right. That will be for her Honour to determine. I put to you, sir, that there is no laughing by the mother at the end of the video?
[THE FATHER] Yes, there is.
[COUNSEL FOR THE MOTHER] I suggest to you that there is no laughing by the mother at the end of this video?
[THE FATHER] I heard laughing.
[COUNSEL FOR THE MOTHER] You see, sir, you’re punishing the mother by forcing her to have anal sex with you?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] You did so to humiliate the mother?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And you did so to punish her for having separated from you?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] And you did so to control her?
[THE FATHER] No.
[COUNSEL FOR THE MOTHER] …When she indicated that she did not consent to the anal sex you continued with it in any event?
[THE FATHER] Yes.[15]
[15] Transcript 24 May 2022, p.17 line 44 to p.18 line 44.
The father later conceded that there were twelve occasions when he was having anal sex with the mother he told her to “shut up and take it.”[16]
[16] Transcript 24 May 2022, p.22 lines 15-16.
During the course of cross-examination the mother:-
·Denied that the parties engaged in role play during sexual interactions;
·Conceded that the recording in evidence does not depict the entirety of the parties’ sexual interaction on this day. The tendered recording was approximately 3 minutes in length whereas originally it was between 10 and 20 minutes in length.
·Gave evidence that the father told her to delete the recording like he usually did with every other recording. The mother, when questioned as to why she retained this recording stated it was because “He hurt me that day.”[17]
·Gave evidence that she was not able to transfer the whole recording to X’s phone as it did not have the capacity to hold the full length of the video. She conceded that she chose the piece of video that she wanted to keep. “I chose the middle to the end….Because the – the start was consented like…I said before…So I just…took a gamble…did the middle to the end.”[18]
·Conceded that three weeks after the recording was taken she married the father.
·Unequivocally denied that all of the sexual interaction in that video was consensual.
·She did not want to notify Police about this incident, but her counsellor pushed her to come forward – “to come clean” about this video “I was pushed and supported to open up about this.”[19]
[17] Transcript 26 May 2022, p.208 line 26.
[18] Transcript 26 May 2022, p.209 lines 2-12.
[19] Transcript 26 May 2022, p.206 lines 5-10.
The mother submits that this was an act of sexual violence. It was a non-consensual act in that the father acted in a way that had no regard for the mother’s consent or feelings and he continued to act in such a way despite what he heard from the mother; prioritising his needs over those of the mother. It was further submitted that the father saying: “When you do your shit again, that’s what happens” is both a present and future threat to the mother. The Independent Children's Lawyer submits to the Court that the relevant examples of behaviour by the father constitute if not a sexual assault upon the mother then at the least sexually abusive behaviour.
It was the thrust of the father’s cross-examination of the mother and his affidavit material in response that the alleged sexual assaults could not have occurred in circumstances where:
·the mother and father otherwise had a consensual sex life;
·on a consensual basis the mother provided to the father at various times photographs of herself either nude or in various states of undress;
·the mother made sexualised comments to the father at various times during the relationship including stating to a video camera “this is how he rides me” whilst the father was playing on a piece of playground equipment at a local park with Y, X and B, taking a video “suggestively” licking the father’s face whilst he was sleeping, taking a photograph of the father whilst he was asleep with his penis showing, and sending a video of herself in the car with Y saying in Arabic “I like big dick”.
·the mother sent consensual sexualised texts to the father including on 8 August 2019 “hahahhaa yess better be rough n sexual n tasty (emoji) ohh u made me horney now.”[20]
·the mother conceded that there were “roughly” 30 to 50 videos taken of the parties having sexual relations.
[20] Exhibit F3, p.251.
The father submitted that in circumstances where the recording is not a recording of the entire sexual interaction between the parties it is impossible to determine whether the interaction was consensual or not.
I disagree with the father’s submissions. The recording is not the only evidence as to what is alleged to have occurred on this date. The mother gave clear and unequivocal written and oral evidence as to the events between the parties prior to the recording and what she can recall subsequent to the recording. She was not dissuaded from this evidence during cross-examination. I accept her evidence as credible and truthful. Having regard to the changing nature of the father’s evidence and the manner in which it was given I find his evidence to be unconvincing and I reject it.
The recording merely provides context to the written evidence of the mother, especially as to the nature of the verbal exchanges between the parties. It clearly demonstrates the mother’s distress and physical pain experienced by her.
Having regard to the totality of the evidence, I find to the standard recorded in section 140(2) of the Evidence Act1995 (Cth) that the commencement of the sexual act of the parties on this date was consensual. This consent was clearly then withdrawn by the mother, and the father continued nonetheless. It is clear, and I so find, that the mother did not consent to being anally penetrated by the father and clearly verbalises this to him. The father continues despite such consent clearly being withdrawn. The father asserted during the course of cross-examination that the mother was laughing or giggling at the end of the recording. I do not accept nor find that that is what the mother is doing. I find that the mother was crying.
The father’s oral evidence was that respect for him is an important attribute in a wife. I find that this act was an act by the father of domination and an assertion of power. It was also an act of punishment. Upon hearing the father tell her that if she does her “shit again that’s what happens”, the mother immediately realises that this is an act of punishment and begins apologising for whatever transgression the father felt she had done.
The father himself conceded during the course of cross-examination that:-
·The mother told him it hurt;
·The mother told him to stop;
·That the mother begged him;
·That she was crying;
·That she was attempting to physically get away from him;
·That the mother said “ow” repeatedly;
·That when the mother indicated to him that she did not consent to engaging in anal sex he continued in any event.
Whilst contradictory throughout his written and oral evidence, the father concedes that he has perpetrated a sexual assault upon the mother and I am able to safely make such a finding grounded on the father’s own evidence.
I am satisfied and find, grounded on both the written evidence of the mother and the recording that on either the 20 or 21 February 2020 the father occasioned a serious sexual assault upon the mother. I further find that the father issued a very clear threat the mother – both as to why he was conducting himself in the manner he did on this occasion and a future threat that he would act in this manner again: “When you do this shit again that’s what happens”.
The mother deposes, and I so find, that this sexual assault continues to make her feel incredible shame and trauma.
Allegations as to Physical Assaults
The mother alleges that during the course of the parties’ relationship she was physically assaulted by the father not less than twice per week. It was the mother’s evidence that “assault” incorporated being grabbed, pushed, kicked, hit or slapped or a combination of these behaviours. The mother agreed during her cross-examination that the frequency of assaults alleged by her would mean in effect that during the course of the parties’ relationship the father physically assaulted her on at least 500 occasions. The mother conceded that she did not attend upon the police to make any complaints as to alleged assaults upon her by the father until 14 April 2021 and that at this time she did not make allegations as to any physical or sexual assaults upon her but made complaint that the father was stalking her. It does not appear to be in dispute that there is no medical evidence to support her allegations.
It is not in dispute and I so find that on 9 June 2018 the mother sent the following text message to the father:
…I hope u rot for making me kill myself from all the emotional n physical abuse u did to me n my kids…[21]
(As per the original)
[21] Exhibit F3, p.286.
I do not ground the reasons for my decision upon any finding that the father perpetrated frequent and continuing acts of violence upon the mother throughout the course of their relationship. I will address and make specific findings as to specific incidents only.
It is necessary to address firstly the overall case presented by the father in this matter to defend the allegations of family violence. The father tendered various photographs of he and the mother smiling, some of these photographs being taken shortly after an alleged incident of family violence. I do not accept that such photographs preclude the perpetration of family violence shortly prior to the taking of the photograph. The father tendered loving messages between he and the mother. I do not accept that the forwarding of loving messages in themselves precludes the perpetration of an assault. Nor do messages discussing financial issues, sexual matters, issues as to the parties’ home life or attaching sexualised or explicit photographs.
A significant issue during the course of the hearing was the nature and form of the written communications between the parties via various platforms including text and Whatsapp. It is conceded by all that these messages are toxic. They originate from both parties. I find that the messages sent by each of the parties were threatening and abusive. I cannot however, draw any inference as appeared to be suggested by the father’s cross-examination of the mother that the sending of such messages would suggest that the mother was not fearful of the father. To suggest otherwise would appear to subscribe to the “perfect victim” ideology. I will address the issue of the nature of the parties’ communications and threats to each other in more detail later in these reasons.
The mother deposes two specific incidents of physical abuse allegedly perpetrated by the father upon her when she was pregnant with X. The father denies these assaults and deposes “All scans for X came back normal and he was born a normal and healthy baby, just like my other children.”[22]
[22] Father’s affidavit filed 11 April 2022, paragraph 90.5.
The mother deposes that the father first physically assaulted her during an argument when she was approximately 7 months pregnant with X. At this time the father pushed her by the shoulders, slammed her back against a wall and was screaming: “You fucking dog. How can you do this to me, I am sick of the way you are. You are not obedient.”[23] The mother deposes that as the father was screaming saliva from his mouth was hitting her face. She was crying and holding onto her stomach and saying to him “I am sorry. Please forgive me. I will not do it again. I am pregnant.”[24]
[23] Mother’s affidavit filed 7 April 2022, paragraph 31.
[24] Mother’s affidavit filed 7 April 2022, paragraph 31.
The father denied this incident in cross-examination although he conceded that he “possibly” often called the mother a dog.
I am satisfied having regard to the detailed evidence given by the mother and the father’s own concession that he possibly called the mother a “dog” that, on balance, this assault occurred as alleged by the mother.
The mother alleges that when she was approximately 8 months pregnant with X during the course of a verbal argument the father lifted his left leg and kicked her stomach causing her to drop to the floor in pain. The father immediately came to her and bent down and said: “are you all right? Is the baby okay?”[25] The mother deposes that she went to bed and cried herself to sleep. The mother asserts she was scared to attend each doctor’s appointment as she was fearful that each of her babies were harmed as a result of the father’s physical abuse towards her during the course of her pregnancies. She deposes that she was too scared to say anything to the doctors or nurses as the father had threatened her that “if you ever report me, I will ruin you. Our marriage will be over and you have nothing. You cannot survive without me.”[26]
[25] Mother’s affidavit filed 7 April 2022, paragraph 32.
[26] Mother’s affidavit filed 7 April 2022, paragraph 33.
The father’s answers to questions about this alleged incident were unhelpful and evasive. He at first denied the incident, then changed to “I do not recall.” He conceded it was “possible” that he told the mother “You cannot survive without me.” I find, on balance, having regard to the detailed nature of the mother’s evidence and the unsatisfactory nature of the father’s evidence that the father assaulted the mother on this occasion as alleged.
Ms H deposes that on one occasion in 2016 she and the mother were sitting on the balcony of the parties’ home when the father came home. She excused herself to go to the bathroom. As she was walking back from the bathroom she saw the mother and the father in the living room. She saw the father grab the mother by both her shoulders and push her against the wall in the living room and then “storm” out of the apartment. Ms H went to the balcony where the mother joined her. She deposes as to the conversation that subsequently occurred between them where the mother at first denied that the assault occurred. The mother then admitted that the father had pushed her but told her that she was not going to talk about it.
It was put to Ms H that she never saw the father push the mother. She was firm and clear that she had. She was not shaken in cross-examination. The father denied that this occurred. I accept Ms H’s evidence. I am satisfied and find having regard to the detail and context in which this evidence is given and clearly not resiled from in oral evidence that on balance this assault occurred.
Ms H deposes that in 2017 she was again visiting the mother at the parties’ apartment. She and the mother were on the balcony talking when the father arrived home. The father went into the kitchen and the mother got up and went into the kitchen also. Ms H overheard the following conversation:
[Mr Pachris]: What are you doing? What is she doing here?
[Ms Tajir]: I am allowed to have friends here.[27]
Ms H deposes she then peaked into the kitchen and observed the father punch the mother in the shoulder with a closed fist causing her to fall backwards. The father then left the apartment and the mother came back to the balcony. Ms H said to the mother: “I saw that. He punched you.” [28] They had a short conversation and the mother said: “Please. Leave it. I love him. I absolutely love him.” [29] The mother was crying and in tears and Ms H did not press the issue further.
[27] Affidavit of Ms H filed 7 April 2022, paragraph 10.
[28] Affidavit of Ms H filed 7 April 2022, paragraph 10.
[29] Affidavit of Ms H filed 7 April 2022, paragraph 10.
The father denied that this occurred. It was put to Ms H that she never saw the father punch the mother and she was clear and unequivocal in her response that she did. I accept her evidence which was detailed and consistent. It was not suggested that she was mistaken or had any reason to make up her evidence. I am satisfied that on balance the father assaulted the mother as alleged on this occasion.
The mother deposes that on 8 March 2019 she was at home with the children when she received a telephone call from the father telling her that he was tired and to make sure that the children were asleep by the time he arrived home. Upon arriving home and finding the children still awake he began screaming in front of the children:
You love your kids more than me. You are hopeless. I will leave you one day.
I am so fucking sick of you treating everyone better than me. You are fucking full of it.
All you care about is the kid’s happiness, never mine.[30]
The mother put the children to bed and went out to the balcony, crying. The father followed her out to the balcony and said to her:
You are nothing but a fucking liar and a dog
Tell me – who did you see today? I am going to find whoever you were with then deal with them.
Give me your phone you little slut. Gimme it, you whore. [31]
(As per the original)
It is the mother’s evidence that as the father then tried to grab the phone from her hand she placed her phone down her shirt and sat with her head down and knees against her chest on the floor whereupon the father kicked her in the head and then left the apartment.
[30] Mother’s affidavit filed 7 April 2022, paragraph 79.
[31] Mother’s affidavit filed 7 April 2022, paragraph 79.
Subsequent to the father leaving the apartment she attempted to go back into the apartment but had been locked out on the balcony by the father. It was cold and her mobile phone battery had died. The 2 and 3 year old children were asleep inside the apartment. The mother alleges that she became so frightened that she urinated on herself. After an hour the mother was able to obtain the attention of a passer-by and arrangements were made for her to be released from the balcony by her brother Mr D and his wife, Ms O. They told her they had obtained the keys from the father. The mother says that she laid awake that night petrified and scared of the father returning and what he would do. The father did not come home that night.

The Full Court cited the summary of the relevant principles in Blinko & Blinko [2015] FamCAFC 146 as follows:
83. It may be taken as well established by a line of authorities generally acknowledged to commence with [R & C [1993] FamCA 62] that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
The Full Court decision of Helbig & Rowe [2016] FamCAFC 117 cited with approval the case of A v A (1998) FLC 92-800, 84,996 at [3.29]:
…The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance…
The Court Child Expert opined that sexually abusive behaviour is enough in itself to constitute the coercive and controlling behaviour that would lead her to the view that the father should spend no time with the children as the flow on effect of the risk to the mother’s capacity and mental health is too great. She was not challenged on this opinion and I accept it.
The Court Child Expert opined that the comments made by the father to the mother such as: “Remember what I told you I was going to do to you” and the mother responding by apologising sounds threatening and intimidating and I so find.
The father saying to the mother: “When you do your shit again, that’s what happens” whilst still inside the mother’s anus absent her consent is coercive and controlling and indicates a threat by the father as to future conduct. It has a basis in power and control and puts the mother in a position of being submissive as she has “no power in that dynamic.”[95] Once a pattern of violence and sexual coercion is established, it is possible for the perpetrator to threaten even with a message. I accept this evidence which was unchallenged.
[95] Transcript 27 May 2022, p.61 line 20.
The mother reported to the Court Child Expert that she tried to protect the children from harm by separating from the father and that the thought of the children spending any time with the father is distressing for her. In cross-examination she stated that she would abide by court orders but that any orders for time between the children and the father: “would be distressing. I would have to abide by what her Honour rules out, but it would be distressing. I would be very upset, yes.”[96] When specifically asked as to the nature of her distress the mother’s evidence was: “Just the thought of his name or being in the same room of him. He is someone that caused me a lot of pain. I try to avoid him. I’ve blocked him. I’m trying to get him – when someone has abused you so many times, you just don’t want to be part of them.”[97]
[96] Transcript 27 May 2022, p.29 lines 29-30.
[97] Transcript 27 May 2022, p.30 lines 2-5.
On 9 June 2018 the mother sent a message to the father threatening to kill herself – “after I take this pill to die n eventually all my pain n the suffering goes…my alarm is on n I’m going! I hope u rot for making me kill myself from all the emotional n physical abuse u did tome n my kids”.[98] The Court Child Expert opines that there is a risk that the mother’s reported symptoms of depression, anxiety and post-traumatic stress disorder will persist if she has ongoing contact with the father. Further, “If orders were made for the children to spend time, I think that would be difficult for [the mother]” in circumstances where the mother has not resiled from her allegation that the father raped her.[99] Thus if the mother is to have ongoing contact with the father it will be stressful and traumatic for her and: “it’s likely to make it difficult for them to care for their children in a really highly attuned manner if they’re going to be traumatised by having contact with the perpetrating parent.”[100] When this traumatic response happens, they become less available, less attuned to the children as they are more preoccupied with their concerns and worries. The Court Child Expert was of the view that it would be very difficult for the mother to hide or keep that away from the children, as the children become very attuned to their parents and would know that the mother is worried about the father and this would put them in a very difficult position. It could be that the safety in the children’s house is compromised because their primary caregiver is no longer available to them.
[98] Exhibit F3, p.286.
[99] Transcript 27 May 2022, p.65 lines 15-17.
[100] Transcript 27 May 2022, p.51 lines 7-10.
The Court Child Expert was of the view that whilst supervised time provides some level of safety mechanism or reassurance for the children, this is potentially not the case for the caregiver.
Whilst I make no findings as to any medical diagnoses or conditions of the mother, I accept and find the children spending any time with the father would be stressful and traumatic for her. I accept and find that the children spending time with the father would negatively impact the mother’s ability to parent the children as stated by the Court Child Expert. I accept and find that there is a risk that the childrens’ safety could be compromised as a result.
I am not satisfied there is sufficient evidence to ground a finding in this matter that any order other than an order that the father spend no time with the children will sufficiently ameliorate the multitude of unacceptable risks the children would be exposed to in spending time with the father.
Neither of the parties nor the Independent Children’s Lawyer sought orders that there be any form of “recognition time” between the children and the father and I will not make such orders in any event having regard to my earlier findings.
Parental Responsibility
As the Court is being asked to make orders as to parenting, it must be determined whether the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of the children or family violence. Where the presumption as to equal shared parental responsibility applies, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.
The mother seeks, as the uncontested resident parent, that she have sole parental responsibility. The father formally seeks an order for equal shared parental responsibility. However the Outline of Case document filed on behalf of the father opines that in the event the mother has attempted to mislead the Court on the issue of family violence then the conundrum left for the Court is whether to order the parties to have joint parental responsibility or that the father have sole parental responsibility.
Having regard to the findings of family violence made in this matter, the presumption as to equal shared parental responsibility is rebutted.
I find that the relationship between these parties is so toxic and dysfunctional that it would be difficult for them to consult and make a genuine effort to reach agreement about major long-term issues: Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101. There has been no direct communication between the parties since the Provisional Apprehended Domestic Violence Order was made in April 2021. I further find that it would not be in the best interests of the children to require the mother to consult with a person as to parenting issues with someone who has perpetrated a sexual assault upon her.
The Court Child Expert opines:
62. Prior to their final separation, the parents each described a volatile and difficult relationship with multiple separations…
108. …There is no functional co-parenting relationship between [Mr Pachris] and [Ms Tajir] and there was very limited information available during this assessment to suggest that, since separation, there is capacity for the parents to now try to establish a cooperative co-parenting relationship in which they could be collaborative and negotiate the children’s needs together. Given the significant risks identified, it seems that the only feasible option is for orders to be made for [Ms Tajir] to have sole parental responsibility…given the likelihood of the children being exposed to parental conflict, the lack of timely decisions being made for the children and as a means of protecting the children from an adverse experiences…such an order is more likely to be in the children’s best interests.
I am therefore satisfied that, as the uncontested resident parent it is in the best interests of the children that the mother have sole parental responsibility.
ANCILLARY ORDERS SOUGHT
Injunctive Orders re The Mother’s Brothers
The father seeks an injunctive order restraining the mother from allowing the children to have any contact whatsoever, whether directly or indirectly, with her two brothers; Mr D and Mr E (“the brothers”). The mother and the Independent Children’s Lawyer seek an order that only restrains the mother from allowing the children to be unaccompanied by her in the presence of or being left in the sole care of either of the brothers.
The issue of the brothers was of particular focus for the father during the course of the hearing. The father makes various allegations relating to their behaviour including that:-
·In 2014 subsequent to an argument he had with the mother, the brothers attended the home and assaulted him causing bruising to his face, arms and chest.
·In 2018 Mr E physically assaulted the mother causing severe bruising on her face. Exhibit F4 is the COPS entry event for 30 January 2018. It records that Mr E punched the mother in the nose in front of the children. When Police attended the mother had dry blood on her nostril and a red stain on her shirt and was extremely emotional. She willingly provided a statement at first but then refused to sign it. The record states that the children were well within arms-length of the assault. Mr E was charged with common assault and an Apprehended Violence Order was taken out for the mother’s protection.
·During the course of the parties’ relationship the brothers have been charged with firearms offences and perpetrating violent assaults.
·In September 2019 and December 2020 he found significant sums of cash hidden in the home and the mother advised that it was her brother’s money; although there is no evidence as to which brother the mother was allegedly referencing.
·Subsequent to the parties separation the mother’s brother Mr B has threatened him on several occasions and on 26 November 2021 attended at his workplace and during the course of an argument shoved him in the chest and hit him in the mouth causing it to bleed. The father asserts that he reported this incident to the police approximately six weeks later.
It is the mother’s evidence that she has a very close and loving relationship with her extended family including the brothers. The brothers are paying her legal fees. Her affidavit was silent as to any incidents of violence between herself and the brothers. It is silent as to any Apprehended Violence Order made protecting her from either of the brothers. The mother was evasive in answering questions relating to the brothers in cross-examination and had to be reminded twice to answer the questions of counsel. She did concede in cross-examination that there was an incident between herself and her brother Mr B in 2018 but she did not want an Apprehended Domestic Violence Order made for her protection as there was no need: “He’s not in the presence of the children alone. There was no need for that. He was under the influence of drugs.”[101] She asserted that she did not know that both of her brothers had criminal records until their records were subpoenaed. She knew that Mr B had been in gaol but she thought it was just for his licence.
[101] Transcript 26 May 2022, p.171 lines 29-30.
The criminal history of the mother’s brother Mr D was tendered during the course of the hearing. It shows an extensive criminal history including multiple convictions for: –
·possession and supply of prohibited drugs;
·driving on-road whilst license suspended;
·possessing goods suspected to be stolen;
·contravening a prohibition or restriction in an apprehended violence order;
·resisting officer in execution of duty;
·behaving in an offensive manner in or near a public place or school;
·intimidating police officer in execution of duty; and
·owner not disclose identity of driver/passenger.
The mother deposes that Mr D is currently in jail awaiting trial however she is “is not entirely sure the charges he is facing”.[102] The criminal material produced under subpoenaed for Mr D appears to show that he is facing three charges being:
·knowingly deal with proceeds of crime intent to conceal;
·use false document to influence the exercise of public duty;
·recklessly deal with proceeds of crime less than $5,000;
·stalk intimidate intend fear physical et cetera harm.
[102] Mother’s affidavit filed 7 April 2022, paragraph 14.
The mother deposes that Mr B is currently living with her parents temporarily. He has previously suffered from drug addiction and mental health issues and spent approximately 18 months in rehabilitation which he completed in 2021. Mr B’s criminal history includes convictions for the following:
·assault occasioning actual bodily harm in the company of others;
·common assault;
·fire a firearm in a manner likely to injure persons or property;
·possessing ammunition without holding a licence/permit/authority;
·possessing an unauthorised prohibited firearm;
·affray;
·custody of a knife in a public place;
·using an uninsured motor vehicle;
·failure to appear in accordance with bail undertakings;
·negligent driving;
·common assault;
·driving whilst license suspended;
·driving whilst disqualified;
·robbery whilst armed with a dangerous weapon;
·taken driver conveyance without the consent of the owner;
·possession of a prohibited drug;
·resisting an officer in the execution of duty;
·possession of equipment for administering prohibited drugs;
·dealing with property suspected to be the proceeds of crime;
·goods impersonal custody suspected of being stolen;
·driver fails or refuses to disclose his identity;
·possession/attempt to prescribed restricted substance;
·stalk/intimidate intend fear physical et cetera harm;
·failure to appear in records of bail acknowledgement;
·possess – attempt to prescribed restricted substance;
·driver conveyance taken without consent of the owner.
I am satisfied having regard to the mother’s concessions as to the physical assault occasioned upon her by her brother, together with their extensive criminal history that it is in the children’s best interests that they be protected from these two people. The question then is what level of protection is necessary. The father seeks an order that the children not come into contact at all with the brothers. Both the mother and the Independent Children’s Lawyer agree that the children are adequately protected if an order is made that the children are not to be left alone with the two brothers.
I accept the mother’s evidence that X is perhaps feeling a need to take responsibility for the household. I accept her evidence that she has concerns that X may “lean on” something in the future which may not be positive. Thus in the future the male role models X has in his life will be important. I am satisfied that the maternal uncles should not be these role models. I am satisfied having regard to the extensive criminal history of both of the mother’s brothers together with the assault upon the mother that it is in the children’s best interests that they not come into contact with the brothers and accordingly orders will be made restraining the mother from allowing X or Y to come into contact at all with Mr B and/or Mr D.
Relocation
The father seeks an order restraining the mother from moving the children’s address beyond a 5 km radius from the Suburb C area. Whilst no submissions were not made on this issue by the father to support the injunctive order sought, the father’s evidence during the course of the proceedings was that the mother had threatened on several occasions to relocate with the children to Melbourne.
Having regard to the orders to be made that there be no time between the children and the father, such a coercive order is not in the best interests of the children and will not be made.
Section 68B Injunctive Orders
Having regard to the findings of fact made with respect to the perpetration of serious family violence upon the mother I am satisfied that it is in the best interests of the children to make the injunctive orders as sought by the mother pursuant to s 68B and s 68C of the Act.
Passport
The mother seeks orders that she have sole responsibility and the ability to obtain a passport for the children. No submissions were made against this course of action by the father and in circumstances where an order for no time has been made in this matter I am satisfied that it is in the children’s best interests that such an order be made so that the mother does not have to communicate with the father with respect to this issue. I am further satisfied that it is in the children’s best interests that they be at liberty to travel with the mother interstate and overseas when she chooses to do so and accordingly orders will be made removing the children’s names from the Airport Watch List.
Provision of Information

In light of the findings I have made as to the perpetration of serious family violence by the father both upon the mother and the children, I will not make the orders as sought by the father for the mother to provide her contact details or for the provision of information regarding the children. The various injunctive orders as sought by the father are not necessary in the circumstances and will not be made.
The Provision of Gifts
In cross-examination by the Independent Children’s Lawyer the mother said that she would pass on gifts or cards from the father for their birthdays etc sent to the parents’ home. The father gifted each of the children the sum of $100 for their birthday and the mother took them shopping to select something and told them it was from their father for their birthday. Neither the father nor the Independent Children’s Lawyer sought any orders in this regard.
During the course of her oral evidence the Court Child Expert opined that the provision of gifts by the father in circumstances where he was not seeing the children might be a confusing experience for them. “…it is a confusing experience for children, I think, and how they come to understand why they’re not spending time with their dad but can receive gifts. It feels like a mixed message of sorts.”[103] I accept this expert opinion and will not make any orders specifically relating to the provision of gifts by the father to the children.
[103] Transcript 27 May 2022, p.53 lines 17-19.
Inspection of Exhibits
In light of the sensitive nature of much of the material marked as Exhibits in these proceedings I will make orders that access to such material is to be limited and inspection can only occur upon further order of a Judge of this Court or the Appeals Registrar of the Appellant Division of the Federal Circuit and Family Court of Australia (Division 1).
Other
The Court Child Expert opined that if the father is to not have any time with the children, it is important for there to be a narrative about the father in their lives and how that is developed would be best done with Ms U who has a better sense of X. In circumstances where the mother has obtained appropriate assistance for X and will obtain appropriate external assistance for Y, I do not propose to make any orders in this regard as I am satisfied the mother will do so.
The Court Child Expert when asked if it would be of benefit if no time were ordered for a counsellor to work with the children to explain to them why they are not seeing their father said there may be some benefit to that, but traditionally for children of these ages its usually best if parents are supported to undertake that role. I am satisfied that it is in the best interests of the children for the mother to be granted leave to provide a copy of the Court Child Expert’s report and these reasons to any counsellor the children or herself may attend upon for assistance.
The mother’s evidence is that she has provided Exhibit M1, being the video recording of the perpetration of the sexual assault upon her by the father, to the Police. As at the date of the hearing the mother has not had any contact from the New South Wales Police. Having regard to my findings I will provide each of the parties the opportunity to provide written submissions if they wish to do so as to the possible referral of the father to the New South Wales Police Commissioner for investigation and possible prosecution.
SUMMARY AND CONCLUSION
The father perpetrated the most serious of assaults upon the mother, both during the parties’ relationship and whilst the parties had a prior separation period. He has engaged in a multitude of behaviours of a coercive and controlling nature.
The father’s attempts during the course of the hearing to minimise and deflect his own behaviour epitomises his lack of understanding as to the serious nature of his actions. Whilst I have found that the mother herself engaged in coercive and controlling behaviour, I accept the submissions made by the mother that to equate one form of behaviour with the other or to suggest that the mother’s behaviour somehow excuses or explains the father’s behaviour is a “false equivalence”.
I am satisfied that the children would be at an unacceptable risk of harm if they were to spend time with the father grounded upon the findings I have made as to the father’s perpetration of family violence and drug use. I am satisfied that such risk, and the consequent negative impact on the mother were time to be ordered, could not be ameliorated in any way.
For the above reasons I make the Orders as sought by the mother and the Independent Children’s Lawyer that there be no time between the children and the father.

I certify that the preceding two hundred and eighty-two (282) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 28 September 2022

File number:	PAC 3726 of 2021
Judgment of:	JUDGE MURDOCH
Date of judgment:	28 September 2022
Catchwords:	FAMILY LAW – CHILDREN – Serious allegations of family violence – Risk – Visual recording tendered during the course of the final hearing where the Court finds that the father perpetrated a sexual assault upon the mother during such recording – Where the father has perpetrated serious family violence including coercive and controlling behaviour – Where the parties had a toxic and dysregulated relationship – Where the risks to the children in spending time with the father are unacceptable and cannot be ameliorated – Injunctive orders made – Orders made for the children to live with the mother and spend no time with the father – Submissions invited as to the father being referred to the New South Wales Police Commissioner for investigation and possible prosecution.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 68B, 68C United Nations Convention on the Rights of the Child art 19
Cases cited:	A v A (1998) FLC 92-800 Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 B v B (1993) FLC 92-357 B & K [2001] FamCA 880 Blanch & Blanch & Crawford (1999) FLC 92-837; [1998] FamCA 1908 Blinko & Blinko [2015] FamCAFC 146 Dieter& Dieter [2007] FamCA 608 Helbig & Rowe [2016] FamCAFC 117 Illgen &Yike [2018] FamCA 17 Isles & Nelissen [2022] FedCFamC1A 97 Keane & Keane (2021) 62 Fam LR 190 Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46 Kuhlv Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 M & M (1988) FLC 91-979; [1988] HCA 68 Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 R & C [1993] FamCA 62 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Zuen and Lhao [2020] FamCAFC 84
Division:	Division 2 Family Law
Number of paragraphs:	282
Date of hearing:	24, 25, 26, 27 May 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	Apex Legal
Counsel for the Respondent:	Ms Lioumis
Solicitor for the Respondent:	Santo Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Conte-Mills
Solicitor for the Independent Children's Lawyer:	Harb Lawyers

PAC 3726 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PACHRIS Applicant
AND:	MS TAJIR Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE MURDOCH
DATE OF ORDER:	28 September 2022