AINSWORTH & YUEN (No.2)
[2020] FCCA 2214
•16 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AINSWORTH & YUEN (No.2) | [2020] FCCA 2214 |
| Catchwords: FAMILY LAW – Parenting – mother seeks sole parental responsibility – mother seeks to limit time – no case for such. |
| Legislation: Family Law Act 1975 (Cth), s.60CC Federal Circuit Court Rules 2001 |
| Cases cited: M v M (1988) 166 CLR 69; FLC 91-979 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 |
| Applicant: | MR AINSWORTH |
| Respondent: | MS YUEN |
| File Number: | BRC 4054 of 2016 |
| Judgment of: | Judge Coates |
| Hearing dates: | 14, 15 and 16 July 2020 |
| Date of Last Submission: | 16 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Downes |
| Solicitors for the Applicant: | Aylward Game Solicitors |
| Counsel for the Respondent: | Mr. J. Cremin |
| Counsel for the Independent Children’s Lawyer: | Ms R. Lyons |
| Solicitors for the Independent Children’s Lawyer: | Jenny Boulton Solicitor |
ORDERS
That the mother and father have equal shared parental responsibility for the care, welfare and development of the child X born in 2015 (“the child”).
That each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.
That the child live with the mother.
That the child spend time and communicate with the father at all times the parents agree in writing and failing agreement as follows:
(a)Commencing on 22 July 2020 and for a period of four weeks each Wednesday and Sunday from 9.00am to 4.00pm;
(b)Commencing on 19 August 2020 and for a period of eight weeks every second Wednesday and on alternate weekends from Saturday 9.00am to Sunday 4.00pm;
(c)Commencing on 23 October 2020 every second weekend from Friday 3.00pm to Sunday 4.00pm;
(d)Commencing on 4 December 2020 every second weekend from Friday 3.00pm to Monday 9.00am (or such times school finishes on a Friday and starts on a Monday once the child is attending school);
(e)Upon the child commencing school in 2022, every second weekend from after school on Friday or 3.00pm to before school on Monday or 9.00am and each Wednesday from after school or 3.00pm to before school on Thursday or 9.00am;
(f)From 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day, if Father’s Day falls on a weekend when the child is not already spending time with the father;
(g)On the child’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours, from 9:00am to 1:00pm in even-numbered years and from 1:00pm and 5:00pm in odd-numbered years, if the birthday falls on a non-school day;
(h)At Christmas:
(i)In even years, from 5:00pm on Christmas Eve until 12:00 noon Christmas day; and
(ii)In odd years, from 12:00 noon Christmas day until 5:00pm Boxing day;
(i)For one half of the specific Easter period;
(j)For one half of the Easter, June/July and September/October school holidays and in default of agreement the first week in odd numbered years and the second week in even numbered years;
(k)For one half of the Christmas school holidays commencing in December 2020 with such time to be week about for that holiday period only with the time commencing on the Saturday immediately following the cessation of school. As and from the Christmas holiday period commencing 2021 one half to alternate between the first and second half with the father to have the first half in odd numbered years and the second half in even years; and
(l)Telephone or video communication each Wednesday and Saturday between 6:00pm and 7:00pm until such time as the child commences spending time with the father each Wednesday pursuant to Order 4(e) above.
That if the child is with the father, the child shall spend time with the mother namely:
(a)For 3 days of the Chinese New Year’s Festival commencing Chinese New Year’s Eve, with the mother to inform the father of the dates each year;
(b)For the second half of the Chinese Mooncake Festival;
(c)If Mother’s Day falls on a weekend when the child is to be spending time with the father, from 5:00pm on the Saturday before Mother’s Day until 5:00pm Mother’s Day;
(d)On the child’s birthday, if the child is to be spending time with the father on those occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day;
(e)In odd years, from 5:00pm on Christmas Eve until 12:00 noon Christmas day; and
(f)In odd years, from 12:00 noon Christmas day until 5:00pm Boxing day.
That the mother is hereby restrained from enrolling the child in any additional extra-curricular activities without the consent in writing of the father.
That in the event the child participates in any extra-curricular activities on weekends, the father shall facilitate the child attending at least one extra-curricular activity on any weekend the child is in his care.
That the mother is hereby restrained from cancelling the time the child is to spend with the father for personal reasons, and only in the event of the child being hospitalised can time be cancelled. If a visit is being missed due to medical reasons the mother must provide the father with the details of the doctor attended or in case of hospitalisation where the child is admitted and the father is able to attend at the hospital to visit the child. If these conditions are not met and the child does not attend a visit, the mother will facilitate make-up time.
That the father is restrained from consuming alcohol during his time with the child and no less than 48 hours prior to the commencement of his time.
That the father engage with a psychologist for the next two years to assist him in abstaining from excess alcohol consumption and that he attend at such times as recommended by the psychologist.
That the father provide a report to the mother every three months from his psychologist.
That the father complete CDT tests once every three weeks during the 12 month period from the date of these orders, and the results of such tests are to be provided to the mother as soon as they become available.
That in the event that any of the CDT test results indicate probable excessive alcohol consumption or words to that effect, or the father fails to provide the results within 48 hours of receiving them to the mother, the father shall only spend supervised time with the child on alternate Sundays from 8:00am to 5:00pm until such time as the father has produced CDT results for a period of four months which do not indicate probable excessive alcohol consumption or words to that effect and thereafter all provisions of time as set out in these orders are to take effect.
That in the event that the father’s time is to be supervised then it is to be supervised by either:
(a)Mr B (paternal grandfather); or
(b)Ms C (paternal grandmother).
That changeover take place, when the father’s time is not supervised as follows, or as agreed between the parties:
(a)Changeover occurring before or after school occur at school with the father collecting and delivering the child to school; and
(b)Otherwise, changeovers occur at the BP Service Station at D Street, Suburb E in the State of Queensland.
That at the designated times that changeover is to occur, each parent shall either deliver or collect the child in person, or arrange for the child to be delivered or collected by the child’s grandparent.
That each parent encourage and facilitate reasonable telephone communication between the child and the other parent whilst the child is in their care as requested by the child.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 2 (two) days of such change.
That in the event of childhood illness or emergency the parent with whom the child or child are with, contact the other parent forthwith to inform them within three hours of the illness or emergency arising.
That the mother provide any of the child’s hearing devices, including hearing aids and the Roger system, to the father when the child is spending time with the father, and the father will return any such device/s at the conclusion of the child’s time with him to the mother.
That each of the parties, their servants and agents be hereby restrained from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b)Recording the child and or other persons at changeover.
That both parents be permitted to liaise directly with the child's care facilities, school and sporting bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child’s progress.
That both parents are at liberty to attend at the child’s school and extracurricular activities for the purposes of any function or activity normally attended by parents.
That each of the parents inform the other of any results of any medical testing for the child as soon as they become available.
That each of the parents be at liberty to discuss and/or attend (not necessarily together) any of the child’s health issues with the treating health professionals and shall forthwith provide to the other parent the name, address and phone numbers of the treating professionals.
That the parents establish and use a communication book and record, for the information of the other to be written in English, issues that are limited to the child’s care and that the communication book accompany the child between the parents’ homes.
That the parents will encourage and foster the child’s relationship with the other parent and the other parent’s immediate family members.
That X born in 2015 be and is hereby restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of this Court or a Court with competent jurisdiction.
That the mother’s application for the child to be permitted to travel overseas be dismissed.
That the Application in a Case filed 25 March 2020 be dismissed.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Ainsworth & Yuen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4054 of 2016
| MR AINSWORTH |
Applicant
And
| MS YUEN |
Respondent
REASONS FOR JUDGMENT
This judgment was delivered orally and has been corrected for written comprehension.
This is a parenting matter filed by the father.
He seeks orders for the child, X.
X was born in 2015.
She is aged four.
The child currently spends supervised time with the father – that supervision being by his parents and that has been the case since 2018.
I will come to the reasons why shortly.
His orders have been stated in his case outline, and there is a second set of orders he wants me to make which were handed to me at the end of hearing the matter on 16 July 2020.
I am not going to go over them all in detail, because the orders are now an exhibit, exhibit 5, and I have read them, and I am aware of the details, and the parties are aware of the details.
What he seeks is that the child lives with the mother, that the child spends ample time with him unsupervised, what the Family Law Act1975 (“the Act”) refers to as significant and substantial time, and that the parties share decision‑making.
He states times in his orders. It is every second weekend, it is half school holidays with orders for special days including Christmas, and all of those supporting orders which are made to regulate a child’s time when parents cannot agree – which is unfortunate because a child would never choose for her parents not to be able to agree on that child’s future.
This child cannot say that though, she is too young.
The father had sought an order for a school halfway between the parents, but realised before he came to court that the child will be going to a school near to the mother, as she has to do as a best-interests order, so that was not pursued [the father lives on the Region G and the mother lives in the southern Brisbane suburbs].
The mother’s response and the latest orders she sought, which are not before the court in written form but which were transmitted to the court, were for the child to live with her, that she exercise sole parental responsibility, and that supervision continue for the next 12 months until the father can show clear alcohol tests and that he does not lie about his drinking.
It seemed to me that what was also put was even when time is unsupervised, that someone be with the father at night.
I have no misunderstanding of what the mother sought.
The Independent Children’s Lawyer at the end of hearing evidence sought orders very similar to that of the father, but did not disagree with any orders which were sought by the father.
Now I need the parents to understand this – I do not simply hear a case and say I like that argument and I do not like that one.
I have to apply the law.
I do not have a personal view. I apply the law.
You as parents tell me what you say the assertions are.
Where there are disagreements, I decide the facts, and then under the law I decide what needs to be done to regulate your child’s time between you.
I use that term “regulate” because I want you two as parents to think about that.
It is terrible for the child that you two cannot live with each other.
She does not understand that, but it is terrible for her.
It is even more terrible that you get into disputes – and I have seen the disputes – I have seen arguments on video – and that is terrible for her.
When you two cannot agree, the court has to regulate the time.
Even though I am intending to make orders and will make orders, the orders will always allow you two to agree to change them.
Not all parents who separate need court orders, because some parents can do so without having disagreements.
That is not to say that there is not good reason for the disagreements that I have seen.
The Act sets out what I have to decide. It has been called a pathway.
Any order I make has to be in the best interests of the child as the paramount consideration.
I take into account what you two as parents want individually, but the paramount consideration is that decision made for the child.
The main objective is that the child has the benefit of a meaningful relationship with each of you, but particularly with the parent the child does not live with.
That is a fairly common sense approach because the child lives with one parent, in this case the mother, and does not see the father all that often.
The orders are to give her the benefit of the meaningful relationship, but only where she is protected from what is referred to as abuse, neglect or family violence.
The issue of neglect is probably at the heart of the mother’s case.
Even though there are claims of family violence, that was not the case presented with regard to the need to protect this child, and I will come to the reasons why.
Apart from those main considerations, there are additional considerations.
Again, these are common sense considerations which the court takes into account – the age of a child, the views of a child, whether the child is old enough to have views which the court can take note of, how parents have co-operated, how they have not co-operated, how they maintain the child, and practical issues like the distance apart from each other. Some parents live thousands of kilometres from each other, other parents live in the next street. These two parents live in a reasonable proximity to each other.
I take into account or I consider the capacity you two as parents have to provide for your child. That is not only materially – that is emotionally and in all other areas in which parents have to provide for children.
I look at how you two have acted with regard to your parental responsibilities, how you have taken on your responsibilities.
I look at cultural issues, if that is an issue before the court.
There is a cultural issue here.
The child is Chinese-Australian or Australian-Chinese.
There is no precedent as to which culture is put first, but as she lives in Australia the culture should probably be referred to as Australian-Chinese.
The child then has two cultures she is going to grow up with, which is wonderful for her.
I have to look at family violence, if that is an issue.
I have to look at anything else which has arisen which is becoming an issue, and I have to examine whether orders made are likely to ensure that, for the child, the parental issues are settled with regard to the parenting orders made.
I cannot stop you two having disputes, but the orders will try and take care of protecting the child. As I said, they are common sense issues.
I then have to apply a presumption that you two will exercise parental responsibility equally.
The presumption does not exist if I am satisfied that there has been family violence.
The presumption can be rebutted on suitable evidence.
They are legal terms, but what parental responsibility means is, simply, your duties to make those decisions properly and for proper purposes for your child.
No doubt, both of you expect to be able to do that, and society expects you to do that.
If I make an order for equal shared parental responsibility, I have to consider the living arrangements in an order from equal shared care through to significant and substantial time or through to any other order which is in the child’s best interest.
Significant and substantial time has a legal meaning.
It means allowing a child to be with the other parent for enough time so that the other parent can not only enjoy their time with the child and have the child enjoy their time with the parent, but so that the other parent does things for the child – everyday things like washing clothes, getting the child to and from school, cooking for the child, that sort of thing – very important issues.
The issues identified after discussion two days ago at the beginning of the trial and confirmed by counsel were time with the father and parental responsibility and such is really based on whether a risk is presented because of the father’s alcohol intake.
The mother was pressing an issue about travel to China.
I indicated that I would not deal with that given the diplomatic issues affecting Chinese/Australian relationships and, no doubt, affecting people.
It is not the time where I could adequately come to a decision, although I did indicate that from what I had read in the material there was probably nothing which would stop the court allowing the child to be able to travel to and from China, but it is not the time at present.
That is something which is out of the parents’ control.
As to background, the father was born in 1976. He is aged 44.
He is currently employed as a health care worker in the Employer F at the Region G.
The mother was born in China in 1982. She is aged 37.
She arrived in Australia in 2012.
She obtained permanent residence in 2017.
She is a health care worker employed at the Employer H.
She is a highly qualified person.
She is a hard worker.
She is currently studying further health care qualifications.
That is not to take anything from the father, because he has also studied hard to attain his qualifications as a health care worker.
Both parties present to me as hardworking people.
The parties commenced their relationship probably in early 2015.
They met when studying.
It seems they started living together in mid-2015, but if the dates differ it is not relevant to the decision I have to make.
They separated in February or March 2016. Again, I do not have to particularise dates.
X, the child, has some issues.
She was diagnosed early with permanent moderate to severe hearing loss, and both parties are aware of that.
Time for the child with the father became an issue based upon his intake of alcohol.
As the matters proceeded through the court other issues arose, especially claims of family violence.
The mother accused the father of a history of inflicting violence upon her, saying that she was pushed whilst she was pregnant.
She names a date in particular of 29 February 2016 when she says the father assaulted her by pushing her – separation occurred not long after that.
The father denies any physical assault upon the mother.
The evidence was presented in such a way that all that is before the court are allegations, because I could not possibly make a finding grounded on evidence, which is what the requirement is, based upon the allegations.
Sometimes there is other supporting material which assists the court – what is called corroborative evidence – but none of that is here.
I am aware, though, that the parties have a capacity to argue, and I am aware they have a capacity to argue in front of the child, because videos were played to me.
Both parties film each other, and really that should not be occurring – it does not engender trust – but they do.
I saw five videos.
There are a couple of changeovers which were videoed.
I saw this little child in the arms of her dad and there are arguments going on.
There are arguments between the father and the maternal grandfather and maternal grandmother who live with the mother – and it seemed to me that the maternal grandfather was poking at the father, and the father can be heard saying, “stop poking me” or “stop pushing at me” or something to that effect, but that should not be occurring full stop, it should not be occurring in front of the child.
This child is old enough to form views that the mother’s family does not like the father, and that the father does not like the mother and her family.
The videos show the mother and father arguing.
A video shows the mother yelling at the father words to the effect of “have X back by 5.00pm or I will call the police”.
The mother said she was not yelling.
She was yelling and that is pretty terrible for you two as parents to have to consider that they are your actions in front of your child. You have to try and think of it from her point of view, “I am with Dad now. I love Dad” and stop putting her in the middle of disputes as I saw in the video.
There is no doubt that the child loves the father, because the report by a family consultant, Ms J, made an observation of the child having a lot of fun with the father and going easily to him.
When the child is with the father, she must be thinking, he does not like the mother. When the child is with the mother, she must be thinking, she does not like the father.
That is pretty terrible.
You two are the most important people in the world for your child.
The evidence confirms that the parties are capable of certainly entering into arguments and arguments in front of the child, and that is not in the best interests of the child.
However, I do not have evidence to confirm any physical violence as claimed by the mother.
There may be a concern for the mother’s household because she had to call the police to her own father, and there is a police report on record.
The mother was on holidays, and apparently the maternal grandfather was very troubled by the father here and his relationship with the mother, resulting in arguments between the maternal grandfather and mother. The mother was away in Tasmania and was so concerned about the arguments with her father that she called the police. I do not know what is going on in that household, although police did not take any action.
I can only take the mother’s word that everything is settled, and that the household is not one in which the child, X, will be subjected to disputes between the mother and her parents, and I hope that is the case.
There was also a claim that the maternal grandfather had threatened the father with a shovel, but no shovel was apparent in the video pictures.
Mind you, not all the house or house surroundings were shown, but it is not an issue which I can take a great deal of notice of other than to say these allegations are made and they are allegations which clearly show the disputes, even as at today, seem to be continuing.
Obviously, a way to control that is to have changeovers at a neutral place and as few changeovers as possible.
The father suggested changeovers at school, but that is assuming that I make orders for overnight time.
The mother suggested changeovers at a BP service station near her house because she is at work, she is the driver – her parents do not drive – and the BP service station is about 300 metres from her house. That seems to be reasonable.
Sometimes courts make orders for changeovers in a public place where there are security cameras because parties know that footage can be secured which may not show the parties in a good light in proceedings before a court.
It seems to me that the allegations of family violence then have been made.
It seems to me that the parties have been able to get into arguments.
It seems to me that can be addressed adequately by ensuring changeover is not done personally by the parties, at least in the immediate future.
Alcohol consumption is an issue – it is a live issue.
The father has admitted that he has taken alcohol to excess.
The mother, quite rightly, is concerned about that.
The court would be concerned about that.
The courts do not accept that alcohol affected parents or drug affected parents can discharge their responsibility to looking after children properly.
During the course of questioning and the course of submissions, the father’s alcohol usage and what he has done to address that was referred to in terms of a question as to whether he would relapse.
I had some difficulty with the term “relapse” because it was not proven that the father had an alcohol dependency or whether he simply had a very high usage of alcohol.
A high usage is perhaps a personal choice, whereas a dependency, as I understand a dependency, is in a category which is probably outside personal choice because it is a craving for alcohol.
The mother, no doubt, has a view that he has a dependency.
If I take the term “relapse” in its general usage, even if the father’s usage of alcohol was simply a choice, I suppose if he goes back to using alcohol that could be described in general terms as a relapse.
Over the course of this matter being in court the father had been ordered to do carbohydrate deficient transferrin (“CDT”) testing, to attend upon assistance services and to supply reports.
It is fairly clear that he breached some alcohol testing orders early in the proceedings.
It is fairly clear that he did not attend to what he had to attend to under the orders.
There is only one reason for that – he was still using alcohol to excess.
However, the question before the court now is whether there is evidence that he is still using alcohol to excess.
The question is whether, if he is not, he will return to using alcohol to excess so as to impair his capacity as a parent?
That is the issue of risk which the court has to address.
I heard a lot of evidence, particularly with regard to the father making statements that he was not drinking, would never drink again and that type of statement.
It was put that the father had lied to various people, including a court, in 2007, which is the only time he had ever been caught for drink-driving, where he allegedly said that he would never drink again.
It was said his lies mean that he cannot be relied on in future when he says he will remain sober.
It was submitted that I need to take account of the lies in deciding what to do and that such lies indicate not only an irresponsibility on the father’s part, but that he is a person who is so unreliable that the court could not have confidence in him in the future.
I must say, I do not know whether he lied in a Magistrates Court.
He certainly did not lie in this court.
No question was put to him that he had lied in this court.
No testing of him was put in the terms that he lied about material facts and issues going to the decision I have to make.
Whether he told a court in 2007 that he would not drink again, and whether he told a psychologist that he was not drinking or would not drink again, may have been the truth at the time he made the statements.
Lies to be relied on in court have to be material to the decision needed to be made.
The authorities have referred to the assessment of lies as being material to facts in issue and that is really the test.
That is not to say that there is not an issue with regard to the father’s unreliability, or credit, because it may be that he made statements regardless of whether he was able to maintain an abstinence from drinking or an absence from heavy drinking.
I am not intending to make any finding on whether the father lied previously.
I think it is futile in the face of the evidence, and the evidence is clearly put before the court as to the father’s ability to deal with alcohol, through tests going back over 18-months.
There is something like 29 or 30 CDT test results before the court, and what they show very clearly is a very steady decrease in his alcohol usage.
I am not going to refer to the CDT figures, I do not need to because I have had the very competent evidence of Dr K.
Dr K is highly qualified to assess CDT test results, and his qualifications were not questioned.
Dr K said that the results being shown by the father, particularly over the last six months – but I keep in mind these results go back for 18 months – really lead him to an assessment that he is not drinking or that he is drinking not much.
He said he cannot be sure he is not drinking, because there were no other tests, such as blood tests, administered.
The court does not always require people not to refrain from drinking when they have a child with them.
Sometimes the court can require that, but at other times the court comes to an arbitrary figure, and that is the blood-alcohol level allowed for drivers on the road to be the maximum limit that a person can take alcohol while a child is in their care.
I put it in those terms because even if the father is still using alcohol, the CDT testing is such as to lead to the finding that he is not so affected as to impair his capacity to parent.
I do so on the confirmatory evidence of Dr K who viewed the documentary evidence before the court or had the evidence explained to him.
I also do so on the father’s own statements, which I accept, that he has not taken alcohol this year.
That does not allay the mother’s fears, such fears no doubt being formed by her experience of the father and, I suppose, because she works as a health care worker.
She has to take note, and she would understand, because she works as a health care worker, that Dr K’s evidence was not challenged.
So the evidence with regard to alcohol intake is persuasive.
The mother’s fear of a relapse – and I use that term in the general meaning – is merely a fear.
The court knows that the father has overused alcohol, because the court knows that he did not supply tests as ordered because he must have been using alcohol, and orders can be crafted so that the child is protected if the father’s alcohol usage goes up.
He is going to be supplying CDT tests for the next 12 months, and what is called a guillotine order will go into effect if his alcohol consumption is raised to a level of concern.
What that means is that if there is a concern, the child does not go to him unless it is in supervision.
The two main issues, alcohol and violence, I have dealt with as I have stated.
So the parties know and understand how I have come to that decision, what I have done is apply the test for risk.
The test for risk is a test applied by courts when all sorts of risks are apparent. The test for risk was stated by the High Court in a number of cases, but particularly in M v M (1988) 166 CLR 69; FLC 91-979 which is a case often referred to.
The High Court said in M v M:
24. In resolving the wider issue the court must determine whether on the evidence there is a risk … occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk …, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account …”
The High Court went on then to say that the court defines risk as whether a risk is an unacceptable risk.
Obviously, if it is an unacceptable risk, orders are crafted to address the unacceptable risk.
If there is a risk but it is not unacceptable, the court still craft’s orders.
Referring to the evidence of the alcohol usage and the evidence of the violence, I cannot determine the magnitude of the risks occurring.
But what will go into place is a series of orders requiring the father to undertake CDT testing for the next 12 months or so, and if the alcohol usage becomes high, then any orders I make, if I make the orders he seeks, will return the child to supervised time – that is assuming that I am going to make any orders that he seeks.
Before coming to any orders which I am considering, I have to have regard to reports and one of the reports is challenged.
The first report, the family report, by Ms L was provided in late 2018.
She addressed all the alcohol risks.
Violence was not a particular issue then, as I do not think it is now as long as the parties are kept apart and that violence seems to be within the realm of abuse.
She addressed the time issues in the sense that if the father is not in a position to control his intake of alcohol usage, then time does not go unsupervised.
She then gave her professional opinion as to time, and that was on a staged progression taking the child into grade 1 and grade 2 where time increases, and time increases both to overnight and weekend time, with some time in the other week, and holidays going from one week in school holidays to half school holidays.
Again, I am not going to particularise what she said because what she said is apparent in her report, and I have read the report, and I am now just going over the recommendations she made.
She was aware of the alleged risk which the court is aware of.
Her report is not challenged.
Another report was received, and that was from Ms J, and that was commissioned by the Independent Children’s Lawyer, and it was commissioned as a report into the child’s needs and that is what the covering letter stated.
The mother says the recommendations of that report are unreliable, and obviously she is talking about recommendations for time.
I referred earlier to Ms J’s observations of the child with the father and the mother, and, for completeness, I will just clarify that.
Ms J really said the child had a good relationship with both parents, and she put it this way:
“7.3 The differences I note in the observations between each parents with X were that Ms Yuen [sic] appeared to be more educative, and the play included reciting the ABC and colors. Mr Ainsworth appeared to be more engaged in imaginative and pretend play. I noted that X really enjoyed the pretend play and both parents had a positive effect on X, with her appearing at ease with both parents. I noted that X separated easily to go from her mother to the report writer for her short interview before leaving to spend time with her father. During this period of transition, I saw no anxiety in X and she did not ask for either parent. I saw no signs of any separation anxiety.”
I did not understand that observation to be challenged, because it was not put before me that the observation should be excluded, although there was a general submission that the whole of her report should be excluded.
Ms J’s recommendations were made after she had read the report of Ms L.
Ms J, in my opinion, did not step away in any material particular from the report of Ms L.
She was aware of the risks being alleged, and she made some time recommendations – not the same, but similar to that of Ms L.
It is those recommendations which were challenged.
As I understood the challenge to the report or the report writer, it was that Ms J did not come within the guidelines for the qualifications for family consultants.
There was also a submission that Ms J had taken different instructions from each parent and that could not assist her because the instructions were different, and that she stepped outside of the brief, as it was referred to, from the Independent Children’s Lawyer that her report was into needs of the child.
Ms J was cross-examined on some issues.
A copy of family consultant guidelines was handed to me.
The guidelines were developed by the Family Court of Australia.
Given the huge numbers of matters the courts need to deal with, there needs to be guidelines about family assessors.
Point 2 of the guidelines says:
“Family assessors must be qualified social science professionals and function as independent and impartial assessors.”
These are guidelines.
It was not said they are legislated, and I do not know of legislation with regard to the guidelines.
It may be the guidelines are formed under regulations, but I was not referred to any regulations.
Why I say that is because regulations and the wording of a regulation may have an impact upon the status of guidelines.
Those guidelines, particularly at guideline 2, state:
“a. The qualifications held by the family assessor must be either those accepted by the Family Court of Australia or the Federal Circuit Court of Australia…
b. As an expert witness, family assessors should have appropriate training, qualifications and experience…
c. Generally family assessors should have qualifications such that they are eligible for membership or are members of the Australian Association of Social Workers or are registered as a psychologist with the Australian Health Practitioners Regulation Authority...”
Ms J was certainly questioned on those issues, and she said she was not a psychologist and was not registered.
Then there was the issue of her impartiality, which was not clearly stated or resolved by counsel for the mother.
I was not addressed on the court’s ability to appoint a family consultant.
I can appoint family consultants acting as the court.
The Act sets out certain things about family consultants, but certainly this court is empowered to appoint a properly qualified person as a court expert.
Ms J had not been appointed as a court expert.
She is a witness.
She was commissioned by the Independent Children’s Lawyer because she has expertise as to the child’s needs.
I should also say her evidence as to needs was that she assessed the needs by looking at the material and questioning the parties.
I say that because it seemed to me to be at issue as to how she established the needs.
You establish needs somehow, and the best way of doing that is by asking the parties and looking at the material filed.
Putting that aside, outside any statutory consideration as to the appointment of an expert either provided by the Act or the Federal Circuit Court Rules2001, the court really has to go back to the authorities.
I was not referred to any authority about experts, but as I was listening to the submissions and arguments it occurred to me that the constant authority referred to, among many, is Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Heydon J went through all of the authorities as at that date, and in the reasonably long judgment he came to conclusions which lawyers understand readily, and that is people who are trained in a particular field, either by education, or qualifications, or experience, can express an opinion in that field, and they can do so without having to prove by admissible evidence all the facts upon which that opinion is based.
Heydon J in his judgment referred to an English case, National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68, stating:
“Cresswell J set out a list of duties and responsibilities of expert witnesses in civil cases as follows:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation …
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness in the High Court should never assume the role of advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one … In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report …
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”
Obviously, not all of those seven points are applicable, but there were no questions directed within terms of the opinion expressed by Ms J that I could detect which were based upon any of those seven points as recorded in his judgment in Makita (Australia) Pty Ltd v Sprowles by Heydon J.
Ms J states in her affidavit, at the end, a brief two-page statement of her qualifications and they are extensive.
In cross-examination she was taken through some of those qualifications and what she had done.
There is a difficulty in challenging experts in this jurisdiction, and that is the rule – it is not an invariable rule – but there is a rule that unless the court orders otherwise there shall only be one expert report.
While it is not unknown that some reports, particularly family reports have been successfully challenged, this is a report on needs, not a family report as such.
In my view, the challenge here fails.
It fails because this child has needs, and it fails because the evidence of Ms J is grounded in the experience she stated she has to the court, and in the experience she stated she has in her affidavit and particularly because she did not depart a great deal in her recommendations for time from the original family report.
If I am incorrect in that assessment, I still have to consider time, and that is influenced by whether I make an order for equal shared parental responsibility or sole parental responsibility.
If I make an order for equal shared parental responsibility, I must consider equal time, significant and substantial time or any other time.
I am assisted by Ms J’s report, as I am assisted by Ms L’s report.
On that basis, I do take into account what those two witnesses say.
The time being sought is not merely a decision on what I have referred to so far.
I have to look at the other parts of the Act, those additional considerations which I outlined earlier.
The relationship this child has with the mother and her parents is not in question.
She has a great relationship with her mother, and the mother is a good mother.
She is providing for this child.
There is no doubt at all about that.
In cross-examination the father said she was a good mother even though he was criticised for not saying anything good about her in his affidavits.
I accept that his oral evidence in that respect was sincere.
The child has a good relationship with the father, as the observation of Ms J, which was not challenged, shows.
From the father’s evidence, this child has a good relationship with her grandparents on the father’s side, because they have been supervising.
I do not think the mother challenges that.
There is the issue of the paternal aunt, Ms M, who often sees the child, and it seems to me that she probably has a good relationship with Ms M. But the mother, for some reason, wants to reduce that time because she seeks orders that Ms M only see the child once a month.
I really do not know what that is about, but I will come to that issue with regard to Ms M when I address other things.
The relationship the child has with each parent is good, it is solid.
There is every indication that she has a good relationship with the father’s family.
While it was put that family is important to the mother in her Chinese heritage, it is important to the father with his Australian heritage.
Children’s relationships with their parents are important.
I do not see that it is a heritage issue at all.
The relationships between the parties is an issue.
If what I have said is not enough, I will go over a couple of other issues which have occurred.
The parties are having trouble communicating.
It seems that they are going to communicate most effectively by written communication.
The father suggests a communication book.
I have not heard that is not acceptable, so I will consider an order for a communication book.
Often communication is in consideration when the court considers parental responsibility, because at face value the question arises as to how parents discharge parental responsibility if they do not talk to each other.
That is not the whole of the test though.
Quite often it is not a best‑interests decision to exclude a parent who really wants to take part in the raising of their child or children, but is simply being prevented from doing so by the other party.
That becomes an issue of a power imbalance, and all sorts of decisions can be made totally excluding the other parent, and that is not good for the child.
The mother wants sole parental responsibility.
I am not satisfied that family violence existed to an extent that the presumption of equal shared parental responsibility does not apply here, but I can rebut the presumption.
The father has been present as much as he can when issues affecting the child are discussed, for example, he has been to the hospital at times the child has been to the hospital.
The mother claims he is not aware of issues affecting the child, like on one occasion the father handed the child to her and the child had a temperature.
She said he was not aware of it.
She admitted a child’s temperature could spike and that it could have spiked between the time the father put the child in the car and handed the child to the mother.
He is a health care worker. He is certainly qualified to recognise that sort of thing.
The concession made by the mother, as she had to do, was that the child’s temperature at the time could have spiked between the time the child was put in the car and handed to the mother.
It appears to me the father has taken opportunity where he can to have an input into his child’s future.
A Ms N did an assessment of the child, because the child does have needs, not only for hearing but there is a socialisation issue and a couple of other issues affecting the child.
Ms N assessed the child for National Disability Insurance Scheme (“NDIS”) funding, but the father was not invited to take part, and I just wonder why?
Why exclude the father from such an important issue?
The father said he was not aware of all the issues identified by Ms N, but then he has never had the chance to speak to Ms N and give his views.
His views are as valid as the mother’s views. He is the father of the child.
What concerns me particularly is what I refer to as a campaign by the mother against the father, and I am concerned about this particular issue.
As well, the mother seems to have made complaint about the father or his relatives for reasons which escape sensible appreciation of the facts.
The mother complained to the Board of Health Care Workers about the father and the classification he was working under.
The mother says she made enquiry, but the board certainly referred in its correspondence as a complaint. The mother said she was assessing matters for child support, but that is not a matter for her to take up with the Board, it is a matter she takes up with child support authorities.
That she said she made an enquiry leaves open the question about what she was enquiring about.
That the Board wrote to the father that there was a complaint but they would be taking no action, clearly, in my view, leads me to conclude that whatever the mother said, the Board took it as a complaint.
The issue is why?
If he is working as a health care worker and there is some type of fraud being committed by him as to the level, what would occur is his income would be affected, because all sorts of issues could then flow from there – all sorts of results.
I do not accept the mother was enquiring for child support purposes.
I think that was part of the campaign to harm him.
The other issue of concern is that the child’s aunt Ms M crosses the border and has crossed the border in the COVID-19 pandemic.
She crosses the border to be with the father and to see the child, I imagine.
The evidence is she sees the child.
The mother has complained about that.
Apparently she has complained to police about Ms M breaking the law.
The mother says she was concerned about Ms M transmitting the COVID-19 virus.
As far as I know, the police have taken no action, but I am sure I do not have all of the grounds before me upon which the mother made complaint about the aunt, Ms M, why she feared that Ms M may transmit the virus, why she feared Ms M may even have the virus – but what was the point?
The matter for the father’s sister, Ms M, crossing the border is one for Queensland Health, it is one for the police checkpoints, and it is one for Ms M.
In any case, I can make no sense of the fact that the mother wants an order restricting Ms M in seeing her niece only once a month.
That leads me to think it was a campaign against the father to harm him.
That should cease.
That creates a risk in terms of the assessment of risk – an emotional risk to the child.
That is an issue of capacity to provide for the child.
It is an issue of the responsibilities being shown as a parent to the child to ensure that the facilitative requirements for the child in all her needs are met.
It also may mean that the mother up until now has lacked the ability to facilitate, which again comes back to relationships.
It comes back to her capacity and her responsibility within terms of s.60CC(2) of the Act.
There are other issues.
While there is a dispute over all of the child’s issues such as whether she has generalised anxiety disorder, because the father says he does not see it, Ms N identified the deafness, generalised anxiety disorder, mobility issues, socialisation and some other things.
The fact is that these orders will allow the father to contact Ms N, and he can present these orders to Ms N, and she should be free, hopefully, to inform him of what she says is affecting his child so that he knows.
I gathered that he only questioned this because he did not have any opportunity to make any sort of submission based upon the fact that he says he does not see the child being anxious.
It may be that the supervision has caused that, I do not know.
There seems to be an issue, the mother thought, that the child was not always supervised by the paternal grandparents.
I do not know if that is the case.
Certainly, the paternal grandfather said he or his wife always supervises.
What goes through the mind of a four-year-old? If someone walks out the door, the four-year-old might think the person was gone, but that is far removed from the mother’s claim that the father is not supervised.
I mean, I can only take it at that level. I think the mother should too, in the absence of any other evidence other than what the four-year-old may say to her questions.
There is no evidence to suggest that the child has suffered any harm within the father’s care which would suggest that he was not supervised.
There are disputes over whether a hearing device called a Roger machine and hearing aids should always accompany the child.
The Roger machine was going with the child to the father’s household.
The mother stopped it because she said the father was not using it, and she said the screen came back cracked.
There was also a dispute over the hearing aids not being returned to the mother, about which the father gave an explanation and got them returned as soon as possible.
If the child is having trouble hearing, and she is in the father’s household, and he is having trouble making the child hear and he ends up yelling, that could scare the child, I imagine, but it is just not in the child’s best interests.
This child has a hearing issue, the Roger machine needs to be sent with the child, and the mother belatedly conceded that it should go.
I do not understand good parenting depriving the child of a basic device.
You two are parents. You have to make this work.
There is a dispute over swimming lessons although not a dispute over getting swimming lessons.
The mother is getting the child swimming lessons.
That is good parenting.
Children in Australia need to swim because they are always swimming.
What she says, though, is the father should not have the opportunity to go outside of the swimming lessons that she organises.
I disagree with that.
If he is exercising parental responsibility, why should he not be allowed to assist in teaching the child to swim in any way he sees is appropriate and if there is no risk?
That is an overreach of control by the mother.
When the child is with him, even if the mother has sole parental responsibility – parental responsibility is with the father when the child is with him.
He must be allowed to exercise that.
There are disputes over the father dressing the child in clothes other than what the mother chooses.
The child might be quite happy to have different clothes on when with the father.
It is an overreach by the mother.
It is a control.
It should not exist.
The mother is not happy if the father does the child’s hair differently than the mother does.
The child might say to the father she enjoys what happens at his residence.
It is give and take.
Children have different experiences with each parent, whether you live together or whether you do not live together.
That is how children learn to manipulate parents, because they know one parent will do something the other will not. As long as the child is safe, that is part and parcel of a child’s development. It is part and parcel of parents exercising a capacity to parent and a responsibility to being parents.
So where do we go?
The mother wants supervision.
That really depends on the risk.
I have already determined I cannot see an unacceptable risk.
Supervision is not going to occur.
There will be a set of orders, though, where supervision can occur if the father does not control his drinking.
If he is dependent on alcohol, it is going to be very hard for him.
If it is a lifestyle choice, then he simply has to make the choice, as difficult as that will be.
I am going to make an order for equal shared parental responsibility.
I intend making orders for overnight time.
Because I am making an order for equal shared parental responsibility I have to, as I have stated, consider whether there will be equal shared care.
There would not be equal shared care.
The evidence would not suggest that this child can live equally between these parents.
No doubt, the primary connection is with the mother, and there is a very good developing connection with the father.
Primary connections change over the life of a child, but I would have no doubt that the primary connection is with the mother.
On that basis, a shared care arrangement is not within the discretion of the court, and the father does not ask for that anyway.
He seeks significant and substantial time.
There is nothing, in my view, which would prevent that.
The parties are not at a distance which would prevent significant and substantial time.
There is a bit of travelling to be done, but it is not a great deal of travelling.
The father and the Independent Children’s Lawyer present a set of orders, but the Independent Children’s Lawyer does not object to the father’s sets of orders.
Those orders set out weekly time, time when the child is in school, and holiday time.
There is nothing wrong with those orders.
The mother does not want those orders, but they are the orders I intend to make.
The mother seeks some orders for Chinese New Year and the Moon Festival.
I sought some submission as to whether there is agreement to that.
I will formally dismiss the father’s application in the case for the contravention.
I will formally dismiss the mother’s application for the travel to China, otherwise it remains there.
I certify that the preceding three hundred and sixty-three (363) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 11 August 2020
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