Chau & Geng
[2021] FedCFamC2F 537
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chau & Geng [2021] FedCFamC2F 537
File number(s): SYC 6381 of 2019 Judgment of: JUDGE BECKHOUSE Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – PARENTING – Sole parental responsibility – Where there are allegations of abuse, sexual assault and family violence – Where there are allegations the child was exposed to sexual acts – Mitigation of risk - Reintroduction of time with the father – Where the father resides interstate Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 117
Evidence Act 1995 (Cth) s 140(2)
Cases cited: Adamson & Adamson (2014) FLC 93-622
Amador & Amador (2009) Fam LR 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Dieter & Dieter [2007] FamCA 608
Hardie & Capris [2010] FamCA 1046
Hendy & Penningh [2018] FamCAFC 257
Keating & Keating (2019) FLC 93-894
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Newman & Tate [2020] FamCA 1114
Division: Division 2 Family Law Number of paragraphs: 250 Date of last submission/s: 30 April 2021 Date of hearing: 27 – 29 January, 19 February & 31 March 2021 Place: Sydney Counsel for the Applicant: Ms Carr Solicitor for the Applicant: Juris Cor Legal Counsel for the Respondent: Ms Shea Solicitor for the Respondent: Hamish Cumming Family Lawyers Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC6381 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHAU
Applicant
AND: MS GENG
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
17 DECEMBER 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting orders made in relation to X (“X”), born in 2017, are discharged.
2.The mother is to have sole parental responsibility for X.
3.X shall live with the mother.
Reintroduction of Time with the Father
4.The mother and father are each to contact Ms B, C Families, or, another suitable service as nominated by the Independent Children’s Lawyer (“the Service”) and complete all relevant forms and intake procedures to enable the Service to commence family therapy with the parents and X, and for the purpose of facilitating the reintroduction of time between X and the Father;
(a)The mother and father are to attend all appointments as directed by the Service, and will do all acts and things to ensure X attends upon the Service at such times and with such frequency as is recommended by the Service.
(b)The mother and father are to equally share the costs charged by the Service and those costs are to be paid directly to the Service.
(c)The Independent Children’s Lawyer is granted leave to provide a copy of the following documents to the Service:
(i)Reasons for Judgment
(ii)Final Orders
(iii)Single Expert Report of Ms D dated 24 October 2020 (“Ms D’s report”)
5.The father’s time with X supported by the Service pursuant to Order 6 is to commence after 1 February 2022 and is contingent upon him providing proof of enrolment and commencement of the programs and counselling required by Orders 12 and 13.
6.The father will nominate to the mother and the Service a period of two-weeks spanning over three weekends (“the block”) when he will be physically present in Sydney for the purposes of reintroducing himself to X. During the block he will spend time with X, supported by the Service:
(a)on no less than four occasions at such times as agreed between the parties and, failing agreement, at such times as directed by the Service; and
(b)on at least one occasion unsupervised for up to two hours but with changeovers facilitated by the Service, at such times as agreed between the parties and, failing agreement, at such times as directed by the Service.
7.After X has spent time with his father supported by the Service during the block in accordance with Order 6, X is to spend time with the father as agreed or, failing agreement, as follows:
(a)Each month on two consecutive days for eight weekends in total on:
(i)Saturday from 10.00 am to 12.00 pm; and
(ii)Sunday from 10.00 am to 12.00 pm.
(b)After X has spent time with the Father on eight weekends in accordance with Order 7(a) above, X is to spend time with the father one weekend each month from Saturday 12.00 pm to Sunday 12.00 pm.
(c)The father is to advise the mother in writing of the address at which X will stay overnight with him for the periods set out in Order 7(b).
(d)The father must provide the mother with five days written notice of his intention to spend time with X in accordance with these Orders.
8.The time provided for in these Orders will be suspended to allow X to spend time with the parties on the following Special Days (“Special Days”) as agreed, or failing agreement, as follows:
(a)In 2022 and each alternate year thereafter, with the father from 9.00 am Christmas Eve until 12 noon Christmas Day and with the mother from 12 noon Christmas Day until 5.00 pm 26 December;
(b)With the mother on Mother’s Day, from 9.00 am until 6.00 pm;
(c)With the father on Father’s Day, from 9.00 am until 12 noon.
9.X’s time with the father as provided for in Orders 8(a) is to commence only after X has commenced spending overnight time with the father in accordance with Order 7(b).
10.X’s time with the father shall occur in Sydney, unless otherwise agreed between the parties and the location for changeovers will be as recommended and agreed during family therapy and failing agreement, at a location nominated by the mother with the mother or the maternal grandparents to deliver and collect X.
11.In the event that the father relocates to Sydney the frequency of his time with X in Order 7(a) and 7(b) will increase to fortnightly.
Engagement with courses and counselling
12.The father is to enrol in and complete at least one of either the “Keeping Kids Safe” program and/or “Triple P” program and/or “Circle of Security” programs and provide evidence of completion to the mother.
13.The father shall attend upon a child psychologist/counsellor with that counsellor to be accredited under the NSW Child Sex Offender Counsellors Accreditation Scheme consistent with the recommendations of the Single Expert Report of Ms D dated 24 October 2020 (the Court noting paragraphs 162(2) in particular) and with the focus of the appointments to be on supporting the father’s parenting skills, including education on sexual boundaries.
14.For the purposes of Order 13, the father will make an appointment as soon as reasonably possible and thereafter attend upon the child psychologist/counsellor for so long and at such frequency as that psychologist recommends. The father is at liberty to, and shall, provide a copy of the following documents to the psychologist:
(a)Single Expert Report of Ms D dated 24 October 2020
(b)Reasons for Judgment
(c)Final Orders
15.The mother is to enrol in and complete a Parenting After Separation program (if she has not already done so) and provide evidence of completion to the father within three months of these orders.
Information sharing
16.Each parent will:
(a)advise of the residential or contact address and phone number(s) of X and of any changes to that address or phone number(s);
(b)advise the other parent of an emergency and urgent message contact number and of any changes to that number;
(c)notify the other parent as soon as possible of any serious illness or injury suffered by X whilst in their respective care;
(d)keep the other parent informed in relation to all medical, dental or other health related treatments being undertaken by X, and the identity of the treating professionals;
(e)do all things reasonably practicable to ensure that X attend any extracurricular event relating to an activity in which he is enrolled and in the event they are unable to do so, will notify the other parent so that the other parent may have the option of taking X to that activity;
(f)be entitled to receive notice of any school events, notices, reports, parent/teacher interviews and or any matter concerning X’s education; and
(g)do all acts and things to encourage and facilitate X contacting and being contactable by telephone by the other parent when he is with them, and will ensure that X is able to speak to that parent in a private environment and will facilitate such telephone time no less than once each week and on special occasions including X’s birthday and each of the parent’s birthdays.
17.The mother be permitted to provide a copy of the Final Orders made, and Reasons for Judgment delivered, in these proceedings to:
(a)any counsellor, psychologist or psychiatrist she attends upon for treatment; and
(b)any counsellor, psychologist or psychiatrist X attends upon for treatment or assessment in the future.
18.The mother be permitted to provide a copy of the Final Orders made in these proceedings to any child care or school attended by X.
International travel
19.The Family Law Watchlist Order, being Order 2 of the Orders dated 2 December 2019, be discharged.
20.The Australian Federal Police are hereby requested to remove the name of X, born in 2017 from the Family Law Watchlist.
21.Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain a current Australian Passport with respect to the child X, born in 2017.
22.Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”) the mother and father be permitted to take the child X, born in 2017 out of the Commonwealth of Australia for a duration of up to three weeks.
23.In the event that the father proposes to travel overseas with X, 12 weeks prior to his proposed departure, he shall provide the mother with written notice of the intended trip specifying the dates and destination of travel and seek the mother’s consent.
24.Not less than four weeks prior to the proposed departure date for international travel with X, the travelling parent shall provide to the other parent:
(a)the date and time of departure;
(b)the means of transport and all details pertaining thereto including details of the airline/vessel with whom X will be travelling, the intended destination, contact numbers and addresses for X for the duration of the trip; and
(c)the intended date and time of return, including a copy of the return airline or vessel tickets.
Dispute resolution
25.In the event that there is a dispute about X, about the interpretation, implementation, or enforcement of these Orders, before making any further application to the Court, the parties will:
(a)attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney-General; or
(b)participate in Family Dispute Resolution with a family relationship centre or a person authorised under section 10G of the Act.
Costs
26.Within 28 days after the date of these Orders the mother shall pay to Legal Aid NSW the sum of $7,347.20 as a contribution to the costs of the Independent Children’s Lawyer in these proceedings.
27.Within 28 days after the date of these Orders the father shall pay to Legal Aid NSW the sum of $5,697.20 (noting his contribution towards the costs of the Independent Children’s Lawyer in these proceedings is $7,347.20 and he has paid to Legal Aid NSW an amount of $1,650 in part satisfaction of that contribution).
28.The ICL will be discharged upon the parties commencing therapy with the Service as provided for in these Orders, or in six months, whichever is the first to occur.
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 Chau & Geng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These are parenting proceedings in relation to the child of the parties X (“X”) who was born in 2017.
ISSUES IN DISPUTE
The matter occupied five days of hearing over a two month period. The only consensus between the parties and Independent Children’s Lawyer (ICL) is that X will continue to live with the mother.
The issues requiring determination are:
(a)whether the father perpetrated family violence against the mother;
(b)whether the father abused X;
(c)whether it is in X’s best interests to re-establish a relationship with the father, and if so:
(i)should that time be supervised or unsupervised, and
(ii)should its commencement be subject to any other requirements?
(d)whether it is in X’s best interests for the parties to share parental responsibility for X or for the mother to have sole parental responsibility? and
(e)what other parenting orders should the Court make?
BACKGROUND
The applicant father, Mr Chau, was born in 1989 in China and is currently aged 32 years.
The respondent mother, Ms Geng, was born in 1986 in China and is 35 years old.
The parties met online in 2015 and commenced cohabitation in October 2016.
On 4 November 2016 the parties signed a Binding Financial Agreement.
The parties married in 2016.
In January 2017 the mother sustained burns to her upper back from hot cupping therapy performed by the father. She alleges that the father intentionally burnt her. The father denies this and submits that he accidentally burnt the mother after overheating one of the glass cups.
The mother alleges that in April 2017 the father tapped on her pregnant stomach with a closed fist and slapped her face causing a red mark.
The parties’ only child X was born in 2017.
The mother alleges that in July 2017 the father forced her to have sex in front of X. The mother claims that the father removed X from his cot and placed him next to them whilst having sex. The father denies this occurred.
The mother alleges that the father sexually assaulted her on numerous occasions.
She alleges that the first incident occurred sometime between October and December 2017 when the father forced her to have anal sex with him. She claims that the father held her down and slapped her across the face when she struggled. She further alleges that the father threatened to divorce her and take X “[i]f you don’t satisfy me sexually”…[1] The mother reported rectal bleeding for several days after.
[1] Affidavit of Ms Geng filed 22 December 2020, paragraph 82 (“Mother’s Affidavit”).
The mother claims that the second incident occurred in or around December 2017. She alleges that the father pulled her pyjama top over her face and held her arms above her head as he had anal sex with her.
The mother alleges that the father forced her to have anal sex a third time between January and March 2018.
The father denies the mother’s allegations of sexual assault.
In April 2018 the parties moved into a three bedroom house in Suburb E. They slept in different bedrooms. The mother alleges that the father became increasingly violent towards her and X during this time.
The mother alleges that in May 2018 the father again forced her to have sex in front of X. She claims that as X crawled towards them, and she tried to push the father off her, he stated “[s]on, this is how you fuck a woman when you grow up.”[2] The father denies this allegation.
[2] Mother’s Affidavit, paragraph 78.
Around this time the father alleges that the mother became easily frustrated by X and threatened to “toss him away.”[3] The father claims that he took responsibility for maintaining the household as he was concerned about the mother’s mental health.
[3] Affidavit of Mr Chau filed 21 December 2020, paragraph 38 (“Father’s Affidavit”).
The mother alleges that the father was physically and emotionally abusive towards X. She reported numerous instances of the father using excessive physical discipline on X during 2018.
She claims that in May 2018 the father slapped X across the face twice when he was sick and refused to eat.
She alleges that in July 2018 the father threatened to hit X after he spilt some juice. She claims that the father walked over to X and swung a closed fist towards his face. X responded by pulling his head back in fear and bursting into tears.
In around October/November 2018 X began screaming after the father allegedly smacked him across the face when he did not go to the father when called.
In late 2018 the father allegedly hit X twice on the upper arm with an open palm before pushing him, causing him to stumble backwards and scream.
The father denies subjecting X to excessive physical discipline.
In December 2018 X and the mother stayed at the F Centre for five days and four nights. The mother was referred to F Centre for “assistance with settling and routine for X”.[4] The centre identified “lack of support, adjustment to parenting, fatigue/exhaustion” as issues for the mother.[5] The mother claims that the father did not visit her and X or participate in any sessions during their stay. However, the parties were described by the centre as having “a supportive relationship and the father being a good hands on dad who was very understanding, empathic, sensitive, dedicated and positive towards the mother and baby [sic] needs”.[6]
[4] Single Expert Report dated 24 October 2020, page 9 (“Single Expert Report”).
[5] Single Expert Report, page 9.
[6] Single Expert Report, page 9.
In April 2019 the mother travelled to Melbourne to undertake a course. X remained in the father’s care.
On 14 April 2019 the mother texted the father and requested that he perform cupping therapy on X with a silicon cupping set and that he ask the maternal grandmother how to do it.
In May 2019 the mother travelled with a friend to Country G for 10 nights. X remained in the care of the father at night, with the maternal grandparents caring for X during day when he was not at child care.
On 10 June 2019 the father moved out of the matrimonial home in Suburb E and advised the mother that he wanted a divorce. The maternal grandparents then moved into the property with the mother and X.
On 26 June 2019 the mother attended her GP and was referred to psychologist, Ms H.
Shortly after separation, the father commenced spending short periods of time with X in the presence of the mother. On 6 July 2019 the father spent two hours of unsupervised time with X. This is the last time X spent time with the father.
On 16 July 2019 the mother sent the father a text message threatening to disclose his conduct at a former workplace to his current and future employers.
In July 2019 the mother commenced counselling with her psychologist. She attended approximately 10 sessions. The mother made disclosures about incidents of family violence allegedly perpetrated by the father.
On 26 July 2019 the mother met with a social worker from Centrelink who referred her to the Women’s Domestic Violence Service at Suburb J. The mother disclosed to a woman named Ms K that the father forced her to have sex with him in front of X. The mother claims that Ms K then made a notification to the Department of Communities and Justice (DCJ).
On 31 July 2019 the police attended the mother’s home and obtained a statement from her in relation to the burn sustained in January 2017 from the hot cupping therapy.
On 1 August 2019 the father was charged with assault occasioning actual bodily harm. On 19 September 2019 an interim Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother and X.
The father defended the criminal charges. On 26 August 2020 the criminal charges and the ADVO were dismissed in Suburb J Local Court.
The father commenced proceedings in the Federal Circuit Court on 23 September 2019.
A divorce order was granted on 28 August 2020.
The matter was set down for a three day final hearing on 27, 28 and 29 January 2021 but did not conclude in the time allocated. The matter continued for a fourth and fifth day on 19 February and 31 March 2021. All parties made written submissions.
At the time of the hearing, the father was residing in Brisbane, Queensland where he works as a professional. The mother remains living in Sydney with her parents and X.
Both parents are permanent residents of Australia and hold Chinese passports.
PROPOSALS AND THE EVIDENCE
Both parties were legally represented and the Court was assisted by an ICL who was appointed to represent X’s best interests.
The father’s case, in summary, is that the mother has fabricated allegations that he was a perpetrator of abuse in order to gain advantage in these legal proceedings. He asserts that there is no risk to X in his care and, accordingly he seeks orders to commence spending time with him as soon as possible.
His proposal is annexed to his written submissions. His proposal for X’s future parenting and care can be summarised as follows:
(a)That the parties have equal shared parental responsibly for X, or in the alternative, that the mother have sole parental responsibility for medical and health issues and that the parties share parental responsibility for the remaining major long-term issues.
(b)That X live with the mother.
(c)That the parties commence family therapy to facilitate the reintroduction of time between X and the father.
(d)That X spend time with him on two occasions within two months of these Orders, progressing to unsupervised time (the days and hours depending on whether the father is living in Sydney).
(e)That X spend half of each school holiday period and a range of special days with the father.
(f)He seeks orders about the engagement of both parties in courses and counselling.
(g)That X be able to travel overseas with both of his parents and that the father retain X’s passport.
(h)He agrees to contribute towards the costs of the ICL.
The father relied upon the following documents:
(i)Amended Initiating Application filed 9 April 2020
(j)Affidavit of Mr Chau filed 21 December 2020
The father was cross-examined.
The mother set out her case in her written submissions as follows:
(a)That the father perpetrated family violence and abuse towards her and X.
(b)That X would be at an unacceptable risk of harm if he were to spend unsupervised time with the father.
(c)That the only way to mitigate the risk is by supervision.
(d)That unless the father undertakes therapy as recommended by the Single Expert, the issues giving rise to unacceptable risk will not be addressed.
(e)That therapy is unlikely to be effective as the father denies any risk and therefore the only options available to the Court are orders for indefinite supervised time or no time.[7]
[7] Mother’s written submissions filed 14 April 2021, paragraph 17 (“Mother’s written submissions”).
The mother’s proposal is annexed to her written submissions and headed “Mother’s Amended Proposed Minute of Order”. Her proposals for X’s future parenting and care can be summarised as follows:
(a)That X continue to live with her.
(b)That she exercise sole parental responsibility for X.
(c)That X spend no time with the father, or in the alternative, two hours of supervised time each month conditional upon his enrolment in parenting programs and commencing individual therapy.
(d)That she apply for an Australian passport for X and be permitted to take X out of Australia.
(e)That the father be restrained from assaulting, harassing or molesting X and the mother, approaching the mother, her home or X’s school.
The mother relied upon the following documents:
(a)Response filed 28 November 2019
(b)Notice of Risk filed 28 November 2019
(c)Affidavit of Ms Geng filed 22 December 2020
(d)Affidavit of Mr L filed 21 December 2020
(e)Affidavit of Ms M filed 21 December 2020
(f)Affidavit of Ms N filed 21 December 2020
For the mother the following witnesses were cross-examined:
(a)The mother
(b)The maternal grandfather, Mr L
(c)The maternal grandmother, Ms M
(d)Ms N, mental health social worker
The mother and the maternal grandparents gave evidence with the assistance of Mandarin interpreters.
The ICL’s proposal is annexed to their written submissions. The Orders sought by the ICL can be summarised as follows:
(a)That X continue to live with the mother.
(b)That the mother have sole parental responsibility for X.
(c)That the parties commence family therapy to facilitate a reintroduction of time between X and the father.
(d)That X spend time with the father on two occasions within two months of these Orders, progressing ultimately to unsupervised overnight time (the days and hours depending on whether the father is living in Sydney).
(e)That X spend half of each school holiday period and a range of special days with the father.
(f)That information orders be made to guide communication between the parties about X.
(g)That both parties engage in courses and counselling in the future.
(h)That X be allowed to travel overseas with both parents with the father to retain his passport.
(i)That the parties contribute equally towards the costs of the ICL.
The ICL relied upon the report of the Single Expert, Ms D dated 24 October 2020 (“Single Expert Report”) which made the following recommendations at paragraph 162:
(a)If the Court finds that the mother’s allegations of family violence are accurate:
(i)The mother have sole parental responsibility for X.
(ii)That X live with the mother.
(iii)That the father complete a course for perpetrators of family violence and attend upon a psychologist to address sexual boundaries, child protection risks and the impact of family violence on children.
(iv)That the father complete multiple courses in child protection and parenting.
(v)If the father completes the above, consideration should be given to supervised time for six months with the possibility of moving to unsupervised time if an updated assessment is completed and such a recommendation is made.
(vi)That the mother complete a Keeping Kids Safe course and address child protection issues with Brighter Futures.
(vii)That X be monitored by a speech therapist.
(viii)That consideration be given to X being exposed to English in the home and pre-school to improve his capacity to communicate and therefore his safety, and also to improve his social skills and capacity to develop friends.
(b)If the Court finds that the mother’s allegations of family violence are inaccurate:
(i)That the parties have equal shared parental responsibility.
(ii)That X spend unsupervised time with the father immediately, starting with two hour blocks each day and moving quickly to overnight time. Then one extra night per week every four to six weeks progressing to an equal shared care arrangement.
(iii)That X be re-introduced to his father in a therapeutic environment with the clinician to monitor X’s coping as the time increases.
(iv)The mother cease counselling with Ms N as it is based on a victims’ model.
(v)The mother seek supportive counselling through another psychologist, recommended by her GP.
(vi)Brighter Futures to be made aware of the Court’s findings and address the families’ needs accordingly.
(vii)The father seek supportive counselling to ensure confidence in his parenting skills.
(viii)Both parties to complete a parenting after separation course within three months.
(ix)In the event the mother does not engage in counselling, withholds X and/or undermines the father’s role in X’s life, then it may be necessary for the Court to consider a change of residence.
The Single Expert did not interview X due to his young age, nor were observations conducted of X with the father. She determined that given the length of time since X had seen his father, any reintroduction should occur in a therapeutic environment and be repeated over time.
The Single Expert gave evidence and was cross-examined.
The following documents were tendered and marked as exhibits:
(a)Exhibit M1 - pp 4-6 of RM supplementary tender bundle
(b)Exhibit M2 - pp 7-8 of RM supplementary tender bundle – Notice to Produce
(c)Exhibit M3 - pp 18-19 of RM supplementary tender bundle – Orders sought by AF
(d)Exhibit M4 - P305 of agreed tender bundle – AF letter of resignation
(e)Exhibit M5 - pp 21-44 of RM supplementary tender bundle – “WeChat” messages
(f)Exhibit M6 - pp 186, 190 & 192 of agreed tender bundle
(g)Exhibit M7 - pp 258-259 of agreed tender bundle
(h)Exhibit M8 - pp 263 & 265 of agreed tender bundle
(i)Exhibit M9 - pp 312-313 of agreed tender bundle – Exhibit 8 of AF local court file
(j)Exhibit M10 - pp 325-327 of agreed tender bundle – messages between AF and Maternal Grandfather
(k)Exhibit M11 - Colour photograph of cupping mark on RM’s back
(l)Exhibit M12 - pp 158-165 of agreed tender bundle
(m)Exhibit M13 - 8 pages produced from Department of Communities and Justice (DCJ)
(n)Exhibit M14 - Supervision fees
(o)Exhibit M15 - pp 314-320 of agreed tender bundle
(p)Exhibit M16 - Itinerary of Ms M (MGM) - issue date 12/04/2019
(q)Exhibit M17 - pp139-149 agreed tender bundle
(r)Exhibit F1 - pp 5-6 of AF’s supplementary tender bundle
(s)Exhibit F2 - pp 15-20 of AF’s supplementary tender bundle
(t)Exhibit F3 - pp307-311 agreed tender bundle
(u)Exhibit F4 - Family activity timeline, 2 pages
(v)Exhibit F5 - AF’s supplementary tender bundle
(w)Exhibit F6 - p273 of agreed tender bundle
(x)Exhibit ICL1 - Pages 1-11 of handwritten notes between DCJ and the mother (from subpoena material produced by DCJ on 27/01/2021)
(y)Exhibit ICL2 - pp 244-249 of agreed tender bundle – 6 pages of Ms H’s psychological consultation report
(z)Exhibit ICL3 - pp 89-98 of agreed tender bundle, DCJ helpline assessment dated 8/08/2019
(aa)Exhibit ICL4 - pp- 276-304 of agreed tender bundle, Brighter Futures Community Referral Form
(bb)Exhibit ICL5 - ICL’s proposed minute of order
X
X is now four. He lives with his mother and maternal grandparents in an apartment in Suburb O.
The mother describes X as a “smart, lovely, stubborn and persistent” child.[8]
[8] Single Expert Report, paragraph 49.
The mother attended a residential program at a F Centre with X for six days and five nights in December 2018 for assistance with settling and routine.
X has suffered from ear infections since he was a baby and is receiving ongoing medical treatment for this.
In 2019 he attended speech pathology and reports indicate that he presented with mildly delayed speech and social skills deficiency, possibly associated with his limited English proficiency.[9]
[9] Mother’s Affidavit, Annexure R, page 137.
He was further assessed by a speech pathologist in November 2020 as presenting with “mild speech sound difficulties” and further individual therapy was recommended.[10]
[10] Mother’s Affidavit, Annexure S, page 142.
X currently attends child care at P Child Care on Mondays to Wednesdays and at the Q Children’s Centre on Thursdays and Fridays.
His team at Q Children’s Centre describe X as an energetic and active child with a strong sense of identity. In December 2020 they observed that X had increased his English dramatically and is communicating confidently. This year they would like to see X “developing more socio emotional relationships” with peers.[11]
[11] Mother’s Affidavit, Annexure T, page 145.
CREDIBILITY OF THE WITNESSES
Generally the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings.[12] However, it has been necessary to do so in this matter. I cannot discharge my statutory obligation to make orders that are in X’s the best interests unless I assess the parties competing allegations and accounts of their behaviour during the relationship.
[12] Adamson & Adamson (2014) FLC 93-622.
Counsel for the mother submitted that the Court should take a cautious approach to the father’s evidence. The circumstances surrounding the father’s relocation to Queensland prompted this submission.
(a)On Saturday 24 October 2020 the father met with the Single Expert for the purposes of preparing the Single Expert Report. During the meeting, he discussed his desire to have a shared care arrangement for X.
(b)On Tuesday 27 October 2020 the father resigned from his position of employment in Sydney saying “I have decided to relocate to Brisbane on a permanent basis”. He also gave evidence at the hearing that he accepted a job offer on the same day.
(c)On 3 November 2020 an interim hearing took place to determine the outcome of the father’s interim application to spend time with X on a fortnightly basis. The father did not disclose to the mother or the Court his intended relocation on this date. It is possible that the withholding of this information was directly relevant to the Court’s determination of the interim application.
(d)On 11 November 2020 the legal representative for the father sought the opportunity for the father to attend the final hearing by Microsoft Teams because “he has recently become unemployed and there is a possibility that he will soon commence work in other states, which might impose difficulty of his physical attendance.” This prompted the legal representative for the mother to write on 14 December 2020 seeking particulars of the father’s residential details and employment contract information.
(e)The father disclosed his relocation for the first time in his trial affidavit filed on 21 December 2020.
(f)The father’s legal representative argued that this information was not deliberately withheld, but rather reflected that the father had not made up his mind because he was engaged in other employment processes. Further, he said he did not disclose this to the Court because he was always intending to return from interstate on a fortnightly basis to spend time with X.
Counsel for the father argued that there were very few attacks on the father’s veracity except this, and some other minor matters, so I should accept that the father was for the best part a truthful witness.
The father’s case consisted, for the most part, of blanket denials of the mother’s allegations. While she gave evidence as to the timing, location and context of each incident of family violence and abuse his case was simply that “it did not happen”. It was difficult therefore for his veracity to be attacked. For example, it was the mother’s case that the father used excessive force when disciplining X. She identified occasions where she said this occurred and her evidence was corroborated by the maternal grandparents. The father offered no explanation, context or introspection but simply a denial of each allegation.
In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 (“Kuhl v Zurich Financial”), the plurality said at [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 on occasions fell short of this expectation. Whilst I cannot find that the father failed to comply with the duty to tell the whole truth to the Court, I still view the evidence he gave with some caution.
The mother was questioned, appropriately, at length on matters that were intensely private and clearly upsetting to her. She answered questions directly and sought clarification when she did not understand the question. On some issues, I found that the mother was an honest witness.
There were many aspects of the mother’s evidence that were inconsistent with other accounts. For example, she gave many different versions of the cupping incident to several different professionals who interviewed her.
Counsel for the mother argued that there was a “core consistency” in the mother’s evidence. Whilst there were clearly different accounts on some incidences, they argued that it should not mean that I find her evidence unreliable in its entirety. I agree with this assessment.
There is a difference between a witness giving different versions of events or exaggerating their account of events on the one hand and deliberately fabricating evidence on the other.
Ultimately, I fell short of being satisfied that the mother deliberately fabricated evidence. However, I am satisfied that she was prone to exaggeration and embellishment when it came to her recollection of events that took place during the marriage. For example, the mother’s reporting of the incidence and frequency of violence during the marriage. When the mother’s psychologist made a report to Helpline on 8 August 2019 she references the mother reporting having been “hit 50 times” by the father and that X was hit “over 30 times”. While the mother provided a different and more conservative account in her affidavit, it provides an example of where the mother may have embellished her version of events to further her case.
As will be discussed further on, I cannot make a finding on whether this occurred as a deliberate ploy to strengthen her case, or whether this arose because of extensive and lengthy counselling and the intervention of many professionals. Ultimately the mother adopted an image or version of the father that was suspicious, negative, fearful and distrustful. The view she formed about the father after separation was not the same as her construction of him during the course of the marriage. This complicates findings of credibility. I also treat her recollection of events with caution as a result.
I find the maternal grandmother, Ms M, gave evidence in a frank and considered manner. I was impressed by her dedication and commitment to X’s welfare.
I find the maternal grandfather, Mr L, was an intelligent man who gave evidence cautiously. At times his evidence was evasive. I approach the evidence he gave with caution.
The mother’s mental health social worker, Ms N gave thoughtful evidence and was particular helpful in assisting the Court to understand the mother’s behaviour and traditional Chinese cultural issues.
The Single Expert was a credible witnesses. I give significant weight to her Single Expert Report and oral evidence.
THE LAW
The principles governing the determination of competing parenting applications are set out in Part VII, Family Law Act 1975 (Cth) (“the Act”).
In essence, when making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA, but, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:
“Best interests” is not the application of a theoretical construct, but rather the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.
As discussed by the Full Court in Moose & Moose (2008) FLC 93-375 at [66], the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interest having regard to:
the matters set out in s 60CC(2) and (3) guided in consideration of the provisions by the object set out in section 60B(1) and the principles underpinning it contained in section 60B(2).
As for the primary considerations, in the leading authority of Mazorski & Albright (2007) 37 Fam LR 518 (“Mazorski & Albright”), Brown J refers to such considerations at [3] as the “twin pillars” where the first pillar:
is the importance to children of having a meaningful relationship with both parents; [and] the second is the need to protect children from physical and psychological harm.
Usually, in arriving at a final determination, the primary considerations under section 60CC(2) of the Act are analysed before moving on to consider the relevant secondary additional considerations under section 60CC(3) of the Act. In this matter an analysis of the secondary considerations provides useful context, but ultimately this case rests on the findings I make on risk, and how to protect X from being subjected or exposed to abuse, neglect or family violence. The relevant secondary additional considerations will be discussed first for the sake of context, prior to drawing them together with the primary considerations in a final analysis as to what orders the Court should make in the best interests of X.
Additional considerations
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The mother has been X’s primary carer and attachment figure since birth.
X does not have a relationship with his father but seems to have enjoyed a close relationship with him during the marriage.
X has lived with or close to the maternal grandparents for most of his life. The Single Expert concluded that his secondary attachment figure is likely to be the maternal grandmother.
Section 60CC(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has made appropriate major long term decisions about X’s care.
Until separation, the father was actively involved in X’s day-to-day care. As the parties separated when X was only 24 months old, there were few long-term decisions that the father could participate in.
However, during the marriage the father was observed to be a hands-on father who took the opportunity to participate in X’s care. This conclusion is supported by documents produced under subpoena, but also by evidence that:
(g)the father attended antenatal classes, the birth of X and took paternity leave after his birth; and
(h)the Single Expert cited photos and videos of X with the father and observed that X seemed happy in the father’s care and presents with a sense of security.
Section 60CC(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Post separation there were disputes between the parties about a fair amount of child support to be paid. The father has paid child support for X since separation.
Section 60CC(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother does not propose any changes to X’s current circumstances. Whilst there are no apparent short-term impacts that flow from this, there may be some in the long term. The Single Expert observed that in the long-term “X will likely miss and yearn for a father figure. He may experienced [sic] a range of emotions as a result, including confusion, guilt, sense of abandonment, counter-rejection, and problems with self-identity.” [13]
[13] Single Expert Report, paragraph 161C.
The father’s proposal would have a significant impact on both X, and likely the mother. The father, supported by the ICL, propose reintroducing the father into X’s life and thereafter affecting a regime of graduated time. The ICL says this change will be a positive one for X because it will enable him to develop a meaningful relationship with the father, something that he currently does not enjoy.
The mother argues that the Court must have regard for the anxiety that she may experience if orders were made for X to spend time with the father.
The mother deposes at paragraph 208 of her affidavit that she has experienced high levels of stress, sadness and distress as result of what occurred in her relationship with the father and the subsequent court proceedings. She states:
I feel worried and stress about court and the prospect of seeing Mr Chau to the point where I am unable to get to sleep… I feel physically sick when I think about Mr Chau forcing me to have anal sex and X being exposed to our sexual relationship. I often have nightmares about Mr Chau including dreams in which he is violent towards me.
Further at paragraph 209 she states:
I feel worried about the prospect of orders being made for X to spend unsupervised time with Mr Chau, including overnight time. I am concerned Mr Chau is not able to contain his anger and will continue to subject X to physical and verbal abuse and expose X to sexual practices.
On this issue, the Single Expert concluded that “if the allegations of family violence are accurate, then Ms Geng would likely suffer severe anxiety if she had to communicate with Mr Chau, see him at changeover, and/or send X to spend time with his father.”[14]
[14] Single Expert Report, paragraph 161I.
Under cross-examination the Single Expert agreed that such stress and anxiety could negatively impact the mother’s parenting of X.[15]
[15] Transcript 31 March 2021, p.71 lines 24-25.
Ms N commented at page 9 of her report that if the Court were to make orders for X to spend unsupervised time with the father:
it would be most likely Ms Geng would have difficulty coping and impact on her trauma experience recovery including constantly fears [sic] of X’s safety; the negative modelling from Mr Chau and the constant parenting conflicts that would rise [sic] between her and Mr Chau would most likely result in Ms Geng suffering from insomnia and difficulty to concentrate [sic] as well as may be unable to move on wither [sic] life to find a job to support X and her parents.
This consideration will be explored when determining whether there is an unacceptable risk of harm should X spend time with his father.
Section 60CC(e)The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father now resides in Queensland. He did not travel to New South Wales to instruct his legal team during the hearing because he wanted to avoid any need to quarantine on his return. Since this time, Queensland has again closed its borders to New South Wales. Future public health orders may impose other restrictions on travel that will affect the father’s ability to have face-to-face time with X. Whilst this is perhaps a short-term interruption in the context of X’s age, it still means it could be some months before the father can travel to New South Wales. This imposes a significant practical difficulty associated with any reintroduction of his time and his spending time with X.
There is also an associated expense. The father gave evidence that he was prepared to travel to Sydney regularly in order to progress his relationship with X. The father said that he will fund regular travel to Sydney. In addition, there is an expense associated with arranging accommodation and potentially arranging supervision services. The father gave evidence in cross-examination that he could afford a fortnightly return airfare between Queensland and Sydney.
He did not discount returning to New South Wales to live either but for the purposes of making these orders it can only be assumed that he will remain in Queensland, at least in the short to medium term.
Section 60CC(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The cultural backgrounds of the parties is a relevant consideration in this case and how the Court should consider them created a controversy between the parties.
The father was born in China and immigrated to Australia in around 2008 when he was 17 years old. His parents still reside in China.
The mother was born in China and arrived in Australia in around 2006. The mother accepted that she had traditional Chinese values and that these values informed her responses and behaviours.
Significant evidence was led about the impact of the mother’s family background and culture on her attitudes towards the marriage, her relationship with the father and her response to his behaviour. The maternal grandparents also gave evidence that assisted the Court in understanding the cultural background of the parties.
Ms N gave evidence about the importance of the mother’s culture and family background in terms of her response to the incidents of family violence alleged by the mother. In her psychological consultation report prepared for the Court she gives evidence that:
7.…Chinese society does not necessarily consider verbal, psychological and sexual abuse in the context of ‘family violence’.
8. It took a number of psychoeducation sessions to help Ms Geng to understand violent behaviours, such as slapping a child and forcing one into unwanted sex as not acceptable in Australia, even though those behaviours may be seen as acceptable in some parts of Chinese society as part and parcel of being a ‘wife’.
14.…In the Chinese tradition and Ms Geng’s family culture, the father is the master of the house and the mother must always follow the father to keep the family together.
17.One of the traditional concepts of [the] Chinese is ‘Family ugliness is never shown’.[16]
[16] Affidavit of Ms N filed 21 December 2020, paragraphs 7, 8, 14 & 17.
The mother argued that because of her cultural values and beliefs, she did not identify that she was a victim of family violence until she began engaging in therapy with her psychologist Ms H.
The ICL argued that the evidence of Ms N should not influence the Court because her work with the mother came from the starting position of acceptance of the mother’s claims of family violence. The ICL therefore argued that her report and evidence had to be viewed through that lens. Further, the ICL argued that even adopting a “Chinese cultural value lens”, if the mother’s allegations were accurate, such behaviours were not acceptable by the Chinese cultural standards anyway.
The father (and to a lesser extent the mother) gave inconsistent evidence about their sexual experience and practices. The father, for example, was not honest with the Single Expert about his sexual practices when he travelled overseas without the mother. The ICL submitted that I should treat his non-disclosures as reflective of the Chinese cultural view that sex and sexuality is a private matter.
The Single Expert said in her evidence “I didn’t put a large amount of weight on those cultural issues…”[17] She said that certain culturally fundamental beliefs could be contributing factors to the mother’s behaviour but ultimately (and correctly said); “Capacity to protect trumps any cultural issues.”[18]
[17] Transcript dated 31 March 2021, p.46, lines 10-11.
[18] Transcript dated 31 March 2021, p.49 lines 34-35.
Clearly the cultural background of the parties is important in this case, but they do not replace evidence and do not alone provide a basis to make findings.
Section 60CC(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has demonstrated her capacity to provide for X’s day-to-day needs and a responsible approach to his parenting. In all of the material produced under subpoena and tendered there has been no criticism made of the level of care X receives in the care of the mother.
While the mother has made allegations that the father did not feed X, change his nappy and used excessive discipline,[19] there was no evidence that would allow me to reach this conclusion. The available evidence suggested that during the relationship the father demonstrated a capacity to provide for X’s day-to-day needs during the limited time that he was in his care. Indeed, the Single Expert observed that both parents claimed to be “dedicated, devoted and doting parents who want what is best for X.”[20]
[19] Exhibit ICL 3, p.91.
[20] Single Expert Report, paragraph 161G.
The Single Expert observed that:
…[N]either parent have any obvious barriers to providing for X’s needs. That is, neither had any serious issues/trauma in their childhood history, they do not have any mental health problems or drug problems, they have stable accommodation and a suitable living environment for the child, express empathy for X, and have demonstrated a commitment to their relationship with their child.[21]
[21] Single Expert Report, paragraph 161E.
She did however raise real concerns about the personality functioning of the parties depending on the findings ultimately made by this Court.
As already outlined, there is a potential negative impact on the mother’s psychological health should the Court make orders for the father to have unsupervised time with X. This will be explored in further detail under the assessment of unacceptable risk.
It should however be noted that the Single Expert’s report was prepared prior to the father’s departure for Queensland, an event which had not been disclosed to her even though she spoke with him on 24 October 2020. This took the Single Expert by surprise. It led the ICL to submit that “the orders proposed by the father and his decision to move interstate show some limits to his insight into the child’s needs.”[22]
[22] ICL’s written submissions filed 14 April 2021, paragraph 154 (“ICL’s written submissions”).
Under cross-examination the father showed little understanding of the challenges that arose from his relocation. He was confident that he could travel to Sydney on a regular basis and work from home in Sydney whilst having X in his care. His proposal to commence unsupervised time for a duration of eight hours demonstrated a lack of understanding of X’s need to be gradually reintroduced to him in frequent, short periods under supervision.
Whilst I accept the reasons cited by the father for his move to Queensland, his departure on the eve of the hearing perhaps demonstrates a lack of insight on his part.
Despite these criticisms, the father’s commencement and continuance of these proceedings validates a commitment to his relationship with X.
The ICL and the father argue that the Court should be critical of the mother for seeking to exclude the father from X’s life. This will be considered after findings have been made on the issue of whether X is at risk of harm.
Section 60CC(j) Any family violence involving the child or a member of the child's family
There is no current family violence order involving X or a member of X’s family. The issue of family violence involving the parties and X is explored under the primary considerations.
Section 60CC(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In circumstances where the father is spending no time with X, it is difficult to foresee any circumstance that would give rise to the institution of further proceedings.
Primary considerations
The Court must balance the benefit to X of having a meaningful relationship with the father with the primacy consideration of protecting him from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
Meaningful relationship
The concept of “a meaningful relationship” has been discussed in many authorities, most significantly in the decision of Brown J in Mazorski & Albright. Those authorities establish that “a meaningful relationship” is a qualitative concept. The relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent. This will be an important consideration because X has not spent any time with his father since 2019.
McCall & Clark [2009] FLC 93-405 at [120] is authority for the proposition that a court must not assume there is a benefit to all children in having a meaningful relationship with both parents. I am required to focus on whether there is a positive benefit to X in the particular circumstances of this case.
X has no relationship with the father and the Single Expert gave evidence that he would likely have no memory of him.[23]
[23] Single Expert Report, paragraph 161C.
Counsel for the mother argued that there was no evidence led about the benefits of X restoring a relationship with his father and that the only benefits are theoretical ones.
The Single Expert gave evidence that there would be benefit to X having a meaningful relationship with the father if the Court does not find that family violence and abuse occurred in accordance with the mother’s allegations. She said “well I think there are benefits in an ideal situation if these allegations are false”.[24]
[24] Typescript dated 31 March 2021, p.36 lines 19-20.
Protection issues for X loom large in this matter. It is therefore critical that the risk of X being subjected or exposed to abuse, neglect or family violence is analysed in detail.
The risk of X being subjected or exposed to abuse, neglect or family violence
In the case of Dieter & Dieter [2007] FamCA 608, the Full Court indicated that in assessing risk I have to look at two elements. The first requires a prediction of whether it is likely that some harmful event will occur, and the second requires consideration of the severity of the impact caused by those events.
In making a prediction of whether risk is likely to occur, I need to be reasonably satisfied of it. As observed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
More correctly, the approach is now contained in s 140(2) of the Evidence Act 1995 (Cth) which is generally to the same effect and states:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
In Newman & Tate [2020] FamCA 1114 McClelland DCJ at [92] provides a useful summary of the full range of principles to be applied when determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists.
•Per Mand M (1988) FLC 91-979 (“M and M”) at 77,081:
In devising these tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from…abuse and the possibility of benefit to the child from parental access.
See also B and B (1993) FLC 92-357 at 79,778.
•It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M and M at 77,081.
•Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[149].
•Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
•The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 (“Johnson & Page”) at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
•While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
•Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83] referring to R & C [1993] FamCA 62.
Discussion of risk
The mother alleges that the father:
(a)physically assaulted her;
(b)sexually assaulted her;
(c)verbally and emotionally abused her;
(d)used excessive physical discipline on X; and
(e)involved X in sexual activity between her and the father.
Given that the parties gave conflicting evidence of the history of their relationship, the outcome for X turns on the findings that are made on the allegations.
As the ICL accurately observed, the evidence in support of the claims of family violence is, almost exclusively, the account of the mother. Issues of credit therefore are critical to the ultimate determination of this matter.
I now turn to the issues of risk and whether factual findings can be made.
Inappropriate disciplining of X by the father
The mother alleges that the father slapped X with the open palm of his hand, on X’s face and body, on a number of occasions. The mother included details of these allegations in her statement to police on 6 September 2019.
The mother deposes conversations with the father and his parents about the use of physical discipline. She alleges that the father physically disciplined X because this was consistent with the way he was raised.
Examples of the physical discipline alleged include:
(a)that the father slapped X’s hand, if he did something wrong;
(b)that the father threatened X with force to manage his behaviour; and
(c)that the father slapped X’s face when he spat out food.
The maternal grandparents also depose circumstances where they observed the father physically disciplining X.
The father denies that he used excessive physical discipline on X and says that the mother lied and fabricated the evidence she gave about this. He further says that the mother’s evidence could not be accepted as being truthful because:
(a)considerable evidence was led of WeChat messages between the parties that were loving and complimentary of the father; and
(b)the mother continued to leave X in the care of the father sometimes for extended periods such as in April 2019 when she travelled to Melbourne for one week and then in May 2019 when she travelled to Country G for 10 days.
The maternal grandparents corroborated the mother’s evidence about some incidents. For example:
(a)When X was approximately six months old the maternal grandmother observed the father slapping X on the forehead after he spat out food.
(b)In or around October/November 2018 the maternal grandmother observed the father smack X on the side of his face with an open palm when he did not go to the father when called.
I find that the maternal grandparents gave credible evidence on the issue.
The father’s evidence on the issue was at times evasive. For example:[25]
[25] Transcript dated 28 January 2021, p.131 lines 11-25.
[COUNSEL FOR THE MOTHER]: I suggest to you that you raised your voice and said to X, “I will start counting”?
[THE FATHER]: No, I don’t recall I said that.
[COUNSEL FOR THE MOTHER]: And then you counted, one, two, three in a loud – in a raised voice. Do you agree with that?
[THE FATHER]: No, I don’t recall I said that.
[COUNSEL FOR THE MOTHER]: Well, did you ever use the technique of counting, one, two, three, when X was young?
[THE FATHER]: No, I don’t recall that either.
[COUNSEL FOR THE MOTHER]: Never? Never used the counting technique?
[THE FATHER]: I taught him, yes counting, one, two, three, just in the sequence, yes.
[COUNSEL FOR THE MOTHER]: All right. Well, you know that’s not what I’m talking about, Mr Chau. You know I’m talking about discipline here. Did you ever use a countdown technique of one, two, three with X?
[THE FATHER]: No, I don’t recall I have done that.
Under cross-examination, he was asked about some statements about his childhood that he made to the Joint Child Protection Response (JCPR) caseworker on 6 January 2020. On the topic of his parent’s use of physical discipline, the record of notes attributed to the father the words: “Scold me and in China, physical punishment, open hand on the bum”. The following exchange took place:[26]
[COUNSEL FOR THE MOTHER]: Do you accept that it’s likely you said that or words to that effect?
[THE FATHER]: My parents did scold me, but they never…no, no… punishment.
[COUNSEL FOR THE MOTHER]: Just – sure. Just – well, just answer my question… Given that it’s in her notes of her interview with you, do you accept that if she has written that down, it’s probably because you said that to her or words to that effect?
[THE FATHER]: No, I don’t think that’s – that’s correct.
[COUNSEL FOR THE MOTHER]: All right. Well, she wouldn’t have made it up, would she, sir?
[THE FATHER]: Again, I don’t – I don’t think I – I don’t see it – I don’t give – when I recall the conversation, I think she – when we’re having the conversation, I think she has a biased attitude towards me. So I’m – she never showed these notes to me, so, again I don’t think I – I don’t – my parents have scolded me, like I said, but they never physically punished me.
[COUNSEL FOR THE MOTHER]: Sir, you find it very difficult to make any concession that you think doesn’t assist your case, don’t you?
[THE FATHER]: No, that’s not true. I’ve been telling the truth.
[26] Transcript dated 28 January 2021 pp. 127-128, lines 41- 12.
I find on the balance of probabilities that it is likely that the father did use physical discipline to manage X’s behaviour.
The paternal grandparents gave evidence that they observed marks on X’s face after the father had used physical discipline. No medical treatment was ever sought for X. Nor did the mother, grandparents or other person raise it. X’s day care centre did not observe any difficulty in the relationship between X and his father, nor concerns for X beyond developmentally appropriate matters. Therefore, I am not satisfied on the evidence that the force the father used was ever excessive.
Financial abuse
The mother alleges that the father monitored her expenditure from the joint account during the marriage. She made a similar complaint to the Department of Communities and Justice (DCJ) caseworkers, police and the Single Expert.
The mother did not seriously pursue the argument that this amounted to coercive and controlling conduct by the father, and for good reason. There is no evidence upon which I could rely upon to make such a finding.
Cupping incident
In January 2017 the mother was experiencing severe muscle pain in her shoulder and back. The pain worsened during the night and the mother was reluctant to take painkillers due to her pregnancy. At around 12.00 am the mother asked the father to massage her. When the massage therapy did not work, the father suggested that they try the traditional Chinese practice of hot cupping therapy, a treatment where hot glass cups are placed on the skin creating suction. It is intended to facilitate healing with blood flow. [27]
[27] Father’s Affidavit, paragraph 66.
The father claims he overheated the second jar causing the mother to scream in pain and a burn mark resulted. He describes the injury sustained as accidental.
The mother claims that she never agreed to the father performing a hot cupping treatment on her. She alleges it was performed without her consent and that the father intended to cause her injury. She claims the father said “this is for you to remember you don’t tell me what to do”.[28]
[28] Mother’s Affidavit, paragraph 58.
After the incident the mother consulted with a GP who gave her cream to apply. The mother later saw a beauty therapist to treat the scar. Then in 2018 she obtain a referral to see a dermatologist. During all treatments she referred to the burn as being an “accident”.
On 31 July 2019 the mother made a statement to the police that the father assaulted her by burning her. A Provisional Apprehended Domestic Violence Order (ADVO) was issued and on 1 August 2019 the father was charged with assault occasioning actual bodily harm.
The criminal proceedings in Suburb J Local Court proceeded on 24 February 2020 and on 26 August 2020. The father was found not guilty of the assault charge and the application for an ADVO was dismissed. In handing down the decision Magistrate R said:
[a]t the end, based on the state of the evidence before me, I cannot find the offence proved beyond a reasonable doubt. The complainant was an unreliable witness, inconsistent at times and there are elements of her evidence that are simply implausible. The late reporting is also problematic for the prosecution case in circumstances where it is made some two and a half years later after....[29]
[29] Exhibit F3, p.311.
In support of the argument that the father deliberately inflicted the injuries on the mother, she argues that:
(a)The parties slept in separate bedrooms at the request of the father who wanted an undisturbed sleep. The father had just returned from a holiday in Country S and Country T between 17 December 2016 and 7 January 2017 and the incident happened shortly after his return. He was angry at the mother for disturbing his sleep and keeping him awake.[30]
(b)It was implausible that the father offered to perform hot cupping because he had no training in it, and had only ever received the treatment from professionally trained people.
(c)The injuries (and existence of two burn marks) to the mother’s shoulder were inconsistent with the father’s assertion that the first time he applied the cup there was insufficient suction and no marking was left.
(d)This is corroborated by the maternal grandmother who said her daughter told her about the incident shortly after it occurred and she saw the wound.
[30] Mother’s Affidavit, paragraph 70.
The father argued that the mother’s version of events is not credible and that her version of the incident should not be accepted. In support of this the father argues that:
(a)The mother was a willing participant in the procedure and removed her top for the purposes of applying the hot cups.
(b)During the gap between the two cupping applications, the mother had ample opportunity to move away rather than remaining seated.
(c)When the mother did seek medical attention 18 months later from Dr U she referred to the incident as an accident.
(d)The mother gave inconsistent versions of the event.
(e)The mother did not report the incident until two and a half years after the burning.
(f)The Local Court has heard and determined the matter on a stricter standard of proof and has dismissed the charges laid against the father.
The ICL argued that the mother’s evidence about the incident should not be accepted. The ICL prefers the father’s evidence that he performed the cupping to alleviate the mother’s pain and the injuries sustained were unintentional and entirely accidental. Indeed the ICL describes the mother’s version of the events as “defying belief”.
Conclusion on the cupping incident
While the Local Court acquitted the father of the charges arising from the cupping incident, I am not bound by that court’s finding and accept that a different test will be applied here. I also note that the court in these proceedings had the benefit of additional evidence.
Having regard to the evidence in its totality, I prefer the father’s evidence that the injury caused to the mother by the cupping incident was an accident. I base this conclusion on the following:
(a)The location of the burn on the mother’s back indicates that her shirt would have had to have been removed for the purposes of the treatment. This suggests a level of knowledge if not consent to the treatment on her part.
(b)The parties gave evidence that the father heated the jars in the presence of the mother who was sitting in the lounge area which adjoins the kitchen. The mother says she was on her phone and not looking in his direction and therefore unaware of what he was doing. I find this implausible.
(c)Had the mother been concerned for her safety or about the unpredictability of the father, she most likely would have placed herself in a position where she could have moved away.
(d)The father gave evidence that he had applied cream to the injury and that he had taken a photograph of the wound for the mother. This seems inconsistent with the mother’s allegation that he deliberately caused the injury.
(e)The parties agreed that the mother had on later occasions requested that the father perform cupping on X. The mother was at pains to draw a distinction between the use of silicon cups and glass cups. I appreciate the distinction drawn and the much greater risk of harm arising from the use of glass cups by untrained people. However, her allegation that the father used the glass cups to cause deliberate harm to her, causes me to question why she would entrust the father to any cupping process in the future, especially on X notwithstanding that silicon cupping may be of less risk.
(f)The mother provided inconsistent versions of the cupping incident:
(i)to her GP Dr U on 17 May 2018 when she described the burn as an “accident”;
(ii)to her psychologist Ms H;
(iii)in her written statement to police;
(iv)when she was interviewed by DCJ caseworkers on 29 November 2019;
(v)in evidence before the Local Court; and
(vi)in her evidence in these proceedings.
I prefer the first account given by the mother, that it was an accident. I also accept that other versions of the incident were prone to some inconsistencies given the use of interpreters (or absence of them) and that some were unable to be tested.
I am not satisfied that the mother deliberately fabricated her version of the event. I have formed the view that the mother reconsidered the incident after engaging in counselling and formed a reasonable belief that the injury was caused by the father out of malice.
I make the general observation that the incident displayed a lack of caution on the part of the father. To apply a treatment without training is not without risks, as was demonstrated by the outcome.
Sexual and physical assault of the mother and X by the father
The mother alleges that the father sexually abused her by:
(a)forcing her to have sex in the presence of X and involving X in the sexual activity; and
(b)sexually assaulting her by forcing her to engage in violent sex acts and anal sex.
The mother alleges that the father exposed X to sexual acts by:
(a)suggesting the mother breast feed X while engaging in sexual intercourse or involve X in a “three-some”;
(b)having X present when engaging in sexual intercourse; and
(c)encouraging X to touch the father’s erect penis.
The mother alleges that the father perpetrated family violence against her by making repeated derogatory taunts towards her.
The mother alleges that the father perpetrated physical violence against her by:
(a)slapping her on the face;
(b)kicking her legs; and
(c)hitting her in the head and face with his fist and pushing her with his foot.
The mother argues that a positive finding should be made because:
(a)her affidavit provides detailed evidence of each incident of family violence;
(b)her affidavit also outlines the occasions on which she says that the father inappropriately involved X in sexual activity;
(c)her affidavit provides detailed evidence of the occasions the father was physically violent towards her and made repeated derogatory taunts towards her;
(d)her evidence under cross-examination was consistent with her affidavit evidence; and
(e)the JCPR investigation of the allegations involving X substantiated “sexual act/exploitation” and “risk of significant psychological harm” arising from domestic violence.[31]
[31] Exhibit M17.
The father denies the allegations in their entirety saying they are “scandalous fabrications without any truth”.[32]
[32] Father’s Affidavit, paragraph 52.
The ICL raises discrepancies that exist in the versions of events given by the mother.
Conclusions on sexual and physical abuse
During cross-examination about her sexual experiences before the marriage, and the sexual practices of the parties during the marriage, the mother was visibly upset. The Court adjourned at several points to allow her time to compose herself.
The father gave evidence under cross-examination that he engaged in unprotected sexual activities overseas in December 2016 and April 2018. He also conceded that he had watched anal sex pornography.
The Single Expert asked the father directly about his sexual history during the interviews. Neither of these matters were disclosed to her.
At the start of the relationship, I am satisfied that the father brought with him sexual experience, which the mother lacked. The evidence also leads the Court to conclude that the father had a curiosity around sexual practices, which he explored on occasions by viewing pornography and through his sexual liaisons. Whether the father was exploring his own sexual gratification with the mother or he held expectations of the mother being an “obedient wife", it seems she was a consensual participant accepting that she later found them hurtful, demeaning and embarrassing.
I cannot conclude on the balance of probabilities that any one single event, or that all of the family violence as described by the mother took place for the following reasons:
(a)The mother’s behaviour and actions towards the father after those incidents and indeed during the marriage, gave no indication that she and X were subjected to sexual abuse. For example, the mother complained that the father on many occasions refused her requests of intimacy. She says “I remember trying to get into his bed for a cuddle and he would push or kick me away”.[33] She made a similar complaint in her statement to the police and during her interviews with the Single Expert. On 9 June 2017 the mother wrote to the father saying “I feel that I have not received enough care from you. When I want to get close to you, you sometimes avoid me. It makes me feel very aggrieved, and I vent the dissatisfaction through my temper. If you can hug me and kiss me before I break out next time, I might calm down.”[34] Under cross-examination, the Single Expert agreed that it was uncommon for a victim of sexual violence to complain about insufficient physical contact with the perpetrator. She says that:
[33] Mother’s Affidavit, paragraph 70.
[34] Father’s Affidavit, Exhibit -1, page 36.
you would expect them to have some trauma associated with that relationship and to be recoiling…from physical intimacy if there was severe violence. Having said that…every person is different, and some people would seek that intimacy as a way of connecting emotionally with another person…but the more common experience would be if there was abuse to try and avoid that intimacy.[35]
[35] Transcript dated 31 March 2021, p.30 lines 30-36.
(b)There were discrepancies in the various accounts she gave of the abuse. The mother says that she first disclosed the abuse she had suffered to the Women’s Domestic Violence Service at Suburb J on 26 July 2019. However, there are some discrepancies in terms of details, dates and times in their records when compared to the mother’s statements – a discrepancy not explained by the mother under cross-examination.[36] In the mother’s written statement to the police she claimed to have seen a chiropractor and physiotherapist “constantly” for treatment of her lower back and legs, she later removed this from her trial affidavit and did not adduce evidence of this nature.
[36] Accepting however that the conversation with the service took place without an interpreter.
(c)The mother complained about the father’s use of derogatory language directed towards her and his criticism of her contributions around the home. This was corroborated by the maternal grandparents. The ICL on the other hand, submitted that the only threatening messages between the parties emanated from the mother. Annexed to the father’s affidavit and contained in tender bundles were lengthy transcripts of the parties’ communication via the WeChat app. These included encouraging messages to the father from the mother, such as “my husband is so awesome under this critical circumstance” and “thank you for your hard work, Hubby! You must be tired today, take an early rest. You are the No.1 father in the world. Kiss Kiss.”[37] It was the mother’s evidence that the messages were reflective of her wanting to improve the marriage, encourage the father, and placate him in the context of a violent relationship. I accept it would be both simplistic and erroneous to conclude that polite and respectful written communications support the father’s assertion that the mother’s evidence is fabricated. It does however leave some doubt in my mind about the accuracy of her recollections of the abuse during the marriage.
[37] Father’s Affidavit, Exhibit Ly-1, pp 29 & 58.
(d)The mother admitted to being devastated and surprised by the father’s unexpected departure from the home and their separation. While the reasons for his decision to end the relationship and the sudden manner in which he went about it was unexplained and therefore understandably shocking to the mother, her grief and surprise appear at odds with her descriptions of her fear of the father and the violence she alleges she experienced at his hands.
(e)The mother’s behaviour and actions towards the father after those incidents, gave no indication that she was concerned about the risks he might pose and she took no protective actions. This includes:
(i)leaving the father alone with X on many occasions including when she travelled to Melbourne and Country G in April and May 2019; and
(ii)allowing the father to spend unsupervised time with X after separation.
(f)The mother argues that she did take protective steps such as booking X into extra days at child care, arranging for a friend to take him out for the day and ensuring her parents were in Sydney to assist with his care. The Single Expert observed that should the mother’s account be proven to be accurate, X is at risk of harm from his father. But her failure to protect “must also be considered a serious parenting deficit and an ongoing risk to X’s safety and wellbeing”.[38]
(g)While X is only young, there was no evidence to suggest that he was not secure in the father’s care. The father showed the Single Expert photographs and videos of him spending time with X. Her observations were that:
151. The photos and videos depict him spending time with X, and X seeking proximity and attention from Mr Chau. In contrast to Ms Geng’s assertions, the videos do not suggest that X is cowering out of fear, or that he will not stay with his father. In fact, X appears secure and trusting in Mr Chau’s care…Furthermore it is a curiosity that Ms Geng would leave X in Mr Chau’s care during the relationship and after the separation, if he had been sexually, physically and verbally abusive towards X.
152. Additionally, Mr Chau presented as a very calm and rational individual. The assessment found no evidence of mental illness, personality disorders, substance use, problems with occupational functioning or a criminal history. In fact he appears to be a psychologically resilient and resourceful parent. As such, there are no obvious barriers to his parenting capacity.
153. Thus, the only concerns about Mr Chau’s parenting skills and/or the risk he may pose to X are based on Ms Geng’s allegations of physical and sexual violence, and neglect.[39]
[38] Single Expert Report, paragraphs 156 & 157.
[39] Single Expert Report, paragraphs 151, 152 & 153.
Findings on risk
Whilst finding on the balance of probabilities that the father did use physical discipline to manage X’s behaviour, I have found no evidence that the discipline he used was excessive. I find that he engaged with the mother in sexual practices that she found uncomfortable and demeaning. However, I cannot conclude that they were non-consensual or that X was exposed to any harm.
The mother argues that even if I cannot make positive findings about the other allegations of violence and abuse, I cannot exclude the possibility they occurred. There is no doubt that an unacceptable risk of harm can be found to arise from an accumulation of factors. I must therefore determine whether on the evidence before the Court, there is a risk of abuse occurring and if so, whether any of that risk can be mitigated.[40]
[40] As Per Johnson & Page (2007) FLC 93-344 at [68].
The mother argues that upon doing so, the “inescapable conclusion would then be that the father poses an unacceptable risk of physical and psychological harm to X.”[41] She relies on the following matters to ground this assertion:
[41] Mother’s written submissions, paragraph 103.
(a)The mother’s account of the violence is highly detailed and specific and she has been able to give evidence as to the timing, location and context of each incident of family violence and abuse.
(b)There is a core consistency in the mother’s evidence when one considers the range of agencies and professionals who she has reported her concerns to. While she may not have given identical accounts on each occasion, it does not make the accounts that she has given entirely unreliable.
(c)The mother’s behaviour, decisions and responses to the father and his conduct needs to be seen in the context of her personal and cultural values and beliefs which ultimately led her to:
(i)remain in a relationship with the father despite his behaviour;
(ii)send encouraging and affirming messages of praise to the father despite his conduct;
(iii)not to report the violence and abuse to anyone outside of the family until after separation, including family members;
(iv)give misleading accounts of the father and his conduct whilst the marriage was on foot;
(v)leave X alone in the father’s care; and
(vi)feel devastated upon the cessation of the marriage.
The ICL (with the support of the father) says that there are a combination of factors that should lead the court to conclude that the mother’s claims are unreliable and therefore there is no unacceptable risk of harm for X in the father’s care. The combination of factors listed were:
(a)inconsistent contradictory or implausible versions given by the mother;
(b)the mother’s conduct being inconsistent with her depiction of family violence;
(c)the availability of contemporaneous records that are consistent with the father’s version and that contradicted the mothers; and
(d)the timing of the allegations.[42]
[42] ICL’s written submissions, paragraph 16.
The father was critical that there was no corroborative evidence to support the allegations made by the mother. The father further contended that little weight should be given to the mother’s evidence regarding the father having perpetrated family violence because she had not raised the allegations until after separation, and even then, they evolved.
The ICL and the father asserted that the mother was fabricating her evidence to punish the father for the following reasons:
(a)The mother was deeply hurt and “felt shocked and ashamed that [the] marriage had ended” and that the father was “abandoning his duties as a husband and father.”[43] She was unemployed and concerned about how she would afford to pay the rent.
(b)The mother was angry with the father for refusing to deposit money into the joint account to cover her rent and living expenses.
(c)The mother was frightened at the prospect of losing “custody” of X after the father suggested that he raise X if she cannot provide a stable home environment.
(d)The mother first disclosed allegations of abuse and family violence to her psychologist on the same day that the father suggested he raise X.
(e)It took the mother two months to prepare a document containing her allegations of sexual abuse. The father submits this “would have given the mother ample time to be creative, to fabricate and exaggerate”, and “undermines the credibility of the allegations within it.”[44]
[43] Mother’s Affidavit, paragraph 138.
[44] Father’s written submissions, paragraph 39.
The Full Court in the case of Amador & Amador (2009) Fam LR 268 at [79] found that the absence of objective evidence to corroborate allegations is not sufficient to reject the credibility of the claims of a party. As observed in Keating & Keating (2019) FLC 93-894 at [42];
It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. A decade ago the Full Court said in Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 at [79]:
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.
The delay in the mother reporting her allegations does not trouble me. Indeed it is a common feature in family violence cases. Ms N and the Single Expert both gave evidence that the mother’s failure to act on her concerns during the relationship arose out of her desire to keep the marriage in place, a desire to “save face” with her family and community. Counsel for the mother directed me to the authority of Hendy & Pennigh [2018] FamCAFC 257.
In that case, at trial the mother was criticised for her failure to take steps to report the father’s mistreatment of the child. On appeal, the Full Court at [13] said:
This binary view of family violence is outmoded and has no place in modern family law. In our view her evidence that she sought to preserve the family unit and to protect Z without the involvement of these agencies was neither incredible nor inconsistent with her evidence of her history of family violence.
Later in that case the Full Court also observed at [76]:
… Inconsistency having thus been established, the totality of the evidence as to family violence was then evaluated as unreliable. No attempt was made to identify a core consistency in what she said. Amongst other things, this approach fails to recognise how hard it is for victims of violence inflicted by a family member, who is often someone they love or on whom they rely for sustenance, to speak about what has happened. The subject matter is distressing and giving voice to what has occurred can be traumatic in itself. We cannot say strongly enough that those involved in cases such as this must bear in mind that in this setting, disclosure is a process that often requires time before a complete picture emerges.
The Single Expert, whilst credible also tended to take a binary view of family violence. Her position was:
(a)Should the mother’s account be accurate, then X is “at an appreciable risk of harm” from his father, [45] but also in that scenario, the mother’s failure to protect X “must also be considered a serious parenting deficit and an ongoing risk to X’s safety and well-being.”[46]
(b)Should the mother’s allegations have been exaggerated or fabricated to gain an advantage in legal proceedings, and to justify withholding X from his father then “the greatest risk to X is psychological abuse in the care of his mother”, and “my view would be that X should start spending time with Mr Chau immediately, quickly moving from day time to overnight time to an equal shared care arrangement.” [47]
[45] Single Expert Report, paragraph 156.
[46] Single Expert Report, paragraph 157.
[47] Single Expert Report, paragraph 158.
Whilst the Single Expert was an important, useful and credible witness, her view suggests that either the mother’s allegations of violence and abuse are either true or untrue. As the legal representative for the mother noted, “[i]t ignores the complexities associated with family violence, particularly in circumstances where cultural issues are involved. It is a view that ought to be rejected by the Court.”[48]
[48] Mother’s written submissions, page 17.
As I have previously outlined, the father disputes the allegations made as “scandalous fabrications without any truth”,[49] raised in an attempt to gain advantage in the legal proceedings.[50] Apart from the cupping incident, he gave almost no alternate perspective.
[49] Father’s Affidavit, paragraph 52.
[50] Single Expert Report, paragraph 155.
Whilst I am unable to make a positive finding that the events as described by the mother occurred, I am not convinced that they were entirely fabricated by the mother either. She did not deviate from her allegations and whilst I have concluded that they were exaggerated on occasions, I am satisfied that she holds a genuine belief that X is at risk of harm in the father’s care.
In light of the findings, I find that the father does pose a risk to X. While I am unable to make positive findings that the violence and abuse occurred as alleged by the mother I am not prepared to exclude the possibility on the balance of probabilities either.
The mother argues that there is a risk of harm arising from the stress and anxiety triggered by X being in the care of the father. This was supported by the Single Expert who said that if the allegations of family violence are accurate then the mother “would likely suffer severe anxiety if she had to communicate with Mr Chau, see him at changeovers, and/or send X to spend time with his father”.[51]
[51] Single Expert Report, paragraph 161(I).
The mother’s treating mental health social worker, Ms N made a similar recommendation although it was based on the court making orders for the father to have unsupervised overnight time with X. She said; “it would be most likely Ms Geng would have difficulty coping and impact on her trauma experience recovery including constantly fears [sic] of X’s safety.”[52] This was put to the Single Expert who agreed that it was a relevant consideration because it has the potential to destabilise the mother, and as X’s primary carer this would not be in his best interests.[53]
[52] Affidavit of Ms N filed 21 December 2021, page 16.
[53] Transcript dated 31 March 2021 p.72 lines 47-48.
Assessment of risk
I am satisfied on the evidence given in these proceedings that there are some risks to X in the father’s care. They are:
(a)a risk of psychological harm from the father using derogatory language towards him or the mother;
(b)a risk of physical harm if the father were to lose control of his temper and lash out at X; and
(c)a risk of psychological harm should the father engage in sexually abusive behaviour towards X or in X’s presence.
I am also satisfied that there is a risk of psychological harm arising from the mother’s stress and anxiety if X is left in the unsupervised care of the father.
It now remains to assess whether these risks are unacceptable risks.
The mother argues that the risks to X and herself are unacceptable and cannot be mitigated. She asks me to make a no time order.
The mother’s behaviour and actions towards the father during the marriage gave no indication that she was overly concerned about the risks he might pose to X. This was supported by the F Centre records. The father’s communications with the mother as evidenced by the WeChat messages is appropriate, co-operative, polite and measured. While the father may at times lack control over his temper and behaviour, for the most part, he operates in a calm, polite and respectful way.
The Single Expert applied a risk assessment to the father to identify if he had engaged in sexually abusive behaviour and whether he is at risk of re-offending. The aim of this risk assessment was to assist in the development of effective risk management strategies. While noting that there were risks to this approach, the dynamic risk factors she considered led her to observe that he was assessed as having only 2 out of 22 possible risk factors. She concluded that:
In sum, given the predominance of protective factors to dynamic risk factors, it is suggested that Mr Chau is at low risk of re-offending (i.e lower than the average sex offender), if it is assumed that he sexually abused Ms Geng and X. If the Court finds that Mr Chau did not engage in sexual abusive behaviour, then this risk assessment cannot be used.[54]
[54] Single Expert Report, paragraph 125.
While the risk assessment regarding propensity to engage in sexually abusive behaviour is not intended for use if no such finding is made, I have included her observations because the Court is open to the potential for a finding of unacceptable risk of harm to arise from an accumulation of factors.
The Single Expert also administered a Spousal Assault Risk Assessment to explore the father’s risk of intimate partner violence.[55] She accepted the mother’s allegations for the purposes of the assessment. Her assessment concluded that the father is “at low risk of perpetrating interpersonal violence in future relationships.”[56] That risk, she found, could be reduced by the father engaging in psycho-educational counselling regarding interpersonal violence.
[55] Single Expert Report, paragraph 126.
[56] Single Expert Report, paragraph 133.
Finally, the Single Expert also undertook an assessment of the father’s parenting strengths and a parenting needs assessment for X.[57] Neither tool is particularly helpful to this case as the conclusions drawn are heavily based on whether the allegations of family violence are found to be accurate. As I have indicated, no such finding can be made as to the individual allegations. Of note though, the father was assessed as having “obvious parenting strengths”,[58] and “numerous protective factors”.[59]
[57] Applying the Family Risk of Abuse and Neglect (FRAAN) and The Family Strengths and Needs Assessment (FSNA).
[58] Single Expert Report, p.46.
[59] Single Expert Report, paragraph 128.
As observed by the Single Expert, a risk assessment process is undertaken to guide intervention. In this case the intervention might include undertaking courses in “family violence and to better understand child protection, appropriate sexual boundaries, and appropriate discipline.”[60]
[60] Single Expert Report, paragraph 149.
In assessing risk the Court cannot overlook some of the other risks posed by the father as they emerged from the evidence. These included:
(a)using glass cupping on the mother with no training or experience;
(b)travelling internationally during the marriage and having unprotected sexual intercourse with other women;
(c)his lack of insight into how his decisions and behaviour impacted on the mother and X (for example his decision to leave the marriage without any communication and to leave Sydney and relocate to Brisbane in the midst of court proceedings); and
(d)his reluctance to concede any deficits in his approach to parenting X. This is supported by the Single Expert who observed that the father “did not think he needed any courses in parenting.”[61] Further, his evidence was such that he did not acknowledge any risk, nor did he accept that there would be any utility in therapy.
[61] Single Expert Report, paragraph 102.
Can the risks to X be mitigated?
The Single Expert recommended a range of options to mitigate the risks that have been identified. These included:
(a)that the father complete a course for perpetrators of family violence and attend upon a psychologist to address sexual boundaries, child protection risks and the impact of family violence on children or alternatively, the father seek supportive counselling to ensure confidence in his parenting skills; and
(b)that the father complete multiple courses in child protection and parenting.
The ICL proposed orders that require the father to attend counselling as recommended by the Single Expert. However, this is opposed by the father who says that the recommendations are predicated on a finding that the mother’s allegations of family violence are accurate.
The ICL was of the view that there was no risk to X being in the father’s care but because he is unknown to X, a sensitive introduction of the father was required before moving to unsupervised time. The ICL’s orders are essentially focussed on the psychological risk associated with to swift an introduction of the father to X once the parties have participated in family therapy to facilitate a reintroduction of time between X and the father.
The mother argued that there would be no positive benefit to X in the Court crafting orders to re-introduce a relationship because any such orders would expose X to unacceptable risk. While she accepted that supervised time would be an appropriate method of mitigating the risks, she argued that it should be subject to the father engaging in therapy as recommended by the Single Expert.
Conclusions as to best interests
Evaluating the considerations discussed above, I have concluded that this is not a matter where the risk to X is so great that it leads to an order for no time. I have reached this conclusion on the following basis.
I have decided that it will be in the best interests of X to make orders for the father to re-establish his relationship with X subject to the following protections:
(a)the father undertaking some programs and counselling to enhance his parenting skills and educate him further on child protection issues;
(b)therapy between the parties to reintroduce the father to X;
(c)an initial period of supervised time; and
(d)increasing the father’s time with X in a measured way.
The father should now complete a range of courses in child protection and parenting including Keeping Kids In Mind, Triple P and Circle of Security. The ICL can recommend to the father suitable agencies and I note it is possible to do most of these programs online.
The mother will also be required to complete a Parenting After Separation program within three months.
Consistent with the recommendations of the Single Expert, to support the father’s parenting skills and understanding of the risks identified in this matter, he will be required to attend upon a child psychologist/counsellor. He will be permitted to provide a copy of the Single Expert Report and these reasons for judgment to guide the counsellor.
I note that Single Expert recommended that the mother cease counselling with Ms N as it was based on a victim model. As I understand it, that counselling had come to an end. In any event, I am not prepared to make such an order if the mother feels that it supports her trauma recovery. However, as the Single Expert recommended, the mother might be better seeking the support of a counsellor recommended through her GP. An order along these lines is not necessary.
The issue of reintroducing X’s time with the father is made difficult by both his distance and impact of COVID-19 on his ability to travel to Sydney.
The Single Expert gave evidence that X would have no recollection of his father and recommended an introduction of him in a therapeutic setting. She recommended the father spending a block period of time in Sydney to build attachment over that time.[62] After a reintroduction of the father, she recommended a build-up of time over a six month period.
[62] Transcript dated 31 March 2021, p.27 lines 40-43.
The parties agreed that Ms B of C Families or another similar service (“the Service”) would be an appropriate therapist to engage to assist them in reintroducing time with X. The service will be provided with a copy of these reasons for judgment and the Single Expert Report to assist them with the family therapy process.
The family therapy process may need to commence using electronic mediums but ultimately it needs to provide for the father and X to connect face to face. This will depend upon on the father’s ability to travel to NSW.
I will make an order that the parties commence the intake process with the Service after 1 February 2022. This will allow them each to undertake the courses referred to and for the father to commence his counselling. It is also a more realistic timeframe for the father to contemplate travel to NSW. Finally, X will most likely have settled into school by the time the father is reintroduced to him.
I will also require the father to nominate to the mother in consultation with the Service, a two week period spanning over three weekends when he proposes to be in Sydney for the purpose of the reintroduction of time. This is consistent with the recommendations of the Single Expert on the issue. During that two week period, the father will spend at least four periods of two hours duration with X supervised and one period of unsupervised time of two hours duration with changeovers taking place at the Service.
According to the Single Expert, once the reintroduction has taken place, establishing a regular and consistent arrangement for time between X and the father, is critical. The father gave no assurances as to what time he could commit to. The ICL proposed alternate fortnightly time once the father had spent eight periods with X. The mother argues that irregular and unpredictable time will not be in X’s best interests. The Single Expert did consider this and was of the view that if the time periods were irregular, it would be hard for X to establish a secure attachment with the father.[63]
[63] Transcript dated 31 March 2021, p.71 lines 13- 14.
I have concluded that after the reintroduction period, it is in X’s bests interests to spend unsupervised time with the father. Failing agreement between the parties, it will take place on one weekend each month 2 x 2 hour blocks for 8 weekends.
The changeover location will be as recommended and agreed during family therapy and failing agreement, at a location nominated by the mother. Should the mother wish to arrange for her parents to attend changeovers, she should advise the father of this in advance.
After 8 weekends, X will commence spending overnight time with the father between 12 noon Saturday and 12 noon Sunday. In the event that the father relocates to Sydney, the frequency of his time will increase to fortnightly.
The ICL and father propose a range of orders for school holidays and other occasions. While the orders that I make should avoid the need for further proceedings, I am not prepared to make orders for any extended period of time in circumstances where the Court cannot be satisfied of:
(a)the father’s living arrangements;
(b)the father’s circumstances including location;
(c)X’s engagements and level of comfort with the father;
(d)the father’s level of supervision and care; and
(e)the mother’s response to the father’s commencement of time with X.
Of course, the orders for time are made on the basis that the parties can also reach agreement on additional time and the Court’s hope is that with the benefit of family therapy and/or mediation in the future, this might be something they can do without resorting to further litigation. Therefore, I will order that the parties attempt to resolve any future disputes about the father’s time with X through family therapy or mediation before returning to Court.
The mother sought a range of injunctions for the protection of herself and X. I am not satisfied on the evidence before me that those injunctions are necessary.
PARENTAL RESPONSIBILITY
The father seeks an order for equal shared parental responsibility. The mother argues that the presumption of equal shared parental responsibility should not apply because there are reasonable grounds to believe that the father has engaged in child abuse and family violence. Even if I were to make this finding, the presumption could be rebutted if I am satisfied that it is not in X’s best interests for the parties to have equal shared parental responsibility.
The father argues that prior to separation the parties enjoyed polite and good communications. I accept this at face value but given the high level of mistrust and animosity between the parties now, I cannot be satisfied that they would be able to communicate and cooperate in X’s best interests in relation to major decisions, especially while the father resides in another state. The presumption is therefore displaced.
Practically the father resides in Queensland and he conceded in the course of the hearing that he had no concerns about the decisions that the mother was making in relation to X.
The mother has made all of the major decisions in relation to X and I have no concerns about her judgment on issues relating to his welfare.
For those reasons, an order giving the mother sole parental responsibility will be made.
ANCILLARY ORDERS
The mother seeks orders for X’s name to be removed from the Family Law Watchlist and that she be permitted to take X outside of Australia for the purposes of travel.
The father initially sought for these restraints to continue but then submitted that mutual orders be made to allow both parties to travel outside of Australia with X.
Both the mother and father travelled extensively internationally both prior to the marriage and after X was born. No evidence was led to suggest that either is a flight risk.
The ICL proposed that the father hold X’s passport in his possession and release it to the mother upon notice of her intention to travel. Given the father lives in another state and the parties do not communicate, I find it difficult to see how the orders proposed can be workable.
The father asks that I make an order restricting the mother’s travel with X to a maximum 21 days and to include a requirement for notice to be given. This is a reasonable request and has been incorporated into the orders that I have made.
I am also concerned that the father has no relationship with X and the orders that I make for X to establish a relationship with the father dependent on the father’s engagement with a range of courses and therapies as set out in the orders, is also dependent on things outside of his control such as COVID-19.
Nothing prevents the parties reaching agreement about the father’s international travel with X in the future without the need for a court order. The Orders have been crafted to permit the father to do so with the mother’s consent.
An order discharging the ICL is generally made upon the making of final orders. In this matter, there are steps for the parties to take which would be best supported and assisted by the ICL. For this reason, I extend the appointment of the ICL until the parties have commenced therapy with the Service as provided for in these Orders, but not for longer than six months.
The ICL seeks an order for each of the parties to pay their costs in equal shares. At the conclusion of the matter, the mother and the father each agreed to an order for costs as proposed by the ICL.
The assistance of the ICL in this matter has, and indeed continues to be invaluable. Having regard to s 117(2) of the Act and the factors set out in s 117(2A), it is appropriate that I make the cost orders sought by the ICL.
CONCLUSION
I thank the legal representatives for their assistance through the trial.
X is fortunate to have two parents in his life who support him, love him and wish to maintain a relationship with him. I wish X the very best for the future and thank you all for taking the time to ensure that the orders made by this Court best support him and your relationships with him.
I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 17 December 2021
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