DING & DING
[2014] FCCA 1688
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DING & DING | [2014] FCCA 1688 |
| Catchwords: FAMILY LAW – Interim proceedings concerning relationship between children aged 11 & 9 with their mother – children concerned live predominantly with their father – children reluctant to spend time with their mother – mother asserts father intent on alienating children from her – father asserts children have reached their own conclusions regarding the mother as a consequence of their own experience of her – children independently represented – family report writer recommended therapeutic intervention – next step to be considered – nature of interim hearing – best interests – cultural considerations – parties also involved in contentious property proceedings centring on allegations of dishonesty – proceedings likely to be protracted – should proceedings be transferred to Family Court. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Goode & Goode (2006) FLC 93-286 Mazorski v Albright (2008) 37 Fam LR 518 Baranski & Baranski [2010] FMCAfam 918 |
| Applicant: | MS DING |
| Respondent: | MR DING |
| File Number: | ADC 4389 of 2012 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 July 2014 |
| Date of Last Submission: | 17 July 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 31 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Harry Alevizos |
| Counsel for the Respondent: | Ms Pyke QC |
| Solicitors for the Respondent: | Jaak Oks Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Fuda |
| Solicitors for the Independent Children's Lawyer: | Georgina Parker Lawyers |
UNTIL FURTHER OR OTHER ORDERS
The children X born (omitted) 2003 and Y born (omitted) 2005 spend time with the mother as follows:
(a)Each Wednesday from 4.00pm until 6.00pm; and
(b)Each Sunday from 10.00am until 4.30pm.
An injunction be granted restraining the parties from discussing the proceedings in the presence of the children or permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
Handovers occur at the mother’s home noting that the father is to withdraw from the vicinity of the mother’s premises during the periods that the mother is spending with the children.
All applications be transferred to the Family Court of Australia at Adelaide on a date and time to be advised to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Ding & Ding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4389 of 2012
| MS DING |
Applicant
And
| MR DING |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Ding “the mother” and Mr Ding “the father”. They are the parents of X born (omitted) 2003 and Y born (omitted) 2005.
These proceedings relate to the time X and Y should spend with their mother on a provisional or interim basis, pending final hearing of the case.
From the father’s perspective, the children are unwilling to spend any more than token amounts of time with their mother because of their previous experience of her, particularly her disinterest in them.
From the mother’s perspective, the father and members of his family are intent are alienating the children from her and subverting a previously close and loving relationship she had with X and Y.
Due to the complexity of issues arising in the case, on 19 December 2012, it was ordered that X and Y be independently represented in the proceedings.
The independent children’s lawyer is Ms Parker, an experienced Adelaide family lawyer. She is to be regarded as a party to the proceedings of equal importance to the parents themselves.
Although the parents share a Vietnamese cultural inheritance, they have quite different backgrounds. The mother was born in Vietnam on (omitted) 1977. She migrated to Australia in August of 2002. She does not speak English with any degree of fluency. The father was also born in Vietnam on (omitted) 1969. He came to Australia, as a refugee, in 1980, when he was eleven years of age.
The father speaks English fluently. After completing High School, he was able to attend university. He graduated with a (qualifications omitted) on (omitted) 1995 and has been employed as a (omitted) ever since.
The parties met, in Vietnam, in 1999. They were introduced by relatives. The mother comes from a rural background in Vietnam. In 2001, it was decided that the parties would marry. The marriage between them was celebrated, in Vietnam, in 2002. Thereafter, the father sponsored the mother to come to Australia. She arrived in Australia on (omitted) 2002.
On her arrival, in this country, the mother moved in with the father and members of his family, at an address in (omitted). The father works at a (business omitted) owned by members of his family located at (omitted). There is considerable controversy between the parties regarding the extent of the father’s interest in the business.
The parties separated in mid-June of 2012. It is common ground that the children have lived exclusively with their father since that date. On 19 November 2012, the mother commenced proceedings, in this court, seeking orders in respect of both parenting arrangements for X and Y and the settlement of matrimonial property.
Issues about which the parties disagree
It is the mother’s position that, during the parties' marriage, she would prepare meals and assist in the cleaning and washing up for up to ten people each night. These persons were the paternal grandparents and the father’s siblings, as well as X and Y.
It is the mother’s case that she rarely left the extended family home and was discouraged from learning English or attempting to obtain employment. She asserts that she did a great deal of housework for the extended family group and was excluded from any financial role.
The mother further asserts that following the respective births of both X and Y she breastfed each child for an extended period of time and thereafter was the main provider of care for both X and Y.
The mother’s case is that the paternal grandparents were extremely controlling and domineering towards her. In these circumstances, she requested the father to move with her and the children out of the paternal grandparents’ home to alternative premises close by, where she, the father and children could have a more autonomous life.
However, this arrangement did not work out and led to the breakdown of the marriage. When the parties separated, the father moved back into the extended family home, taking X and Y with him. The mother’s case is that she did not agree to this arrangement, as she believed the children’s interests would be better served by living with her.
The father has many criticisms of the mother’s parenting abilities. He refutes her suggestion that she exclusively cared for the children prior to the parties’ separation. It is his case that both he and the paternal grandmother were extensively involved in caring for the two children. He asserts that, from time to time, the mother failed to supervise the children appropriately and “hit and kicked them for no proper reason.”
In addition, the father refutes any suggestion that the mother was disempowered or isolated, whilst living with his family. To the contrary, he asserts that she was accorded love and affection and provided with extensive financial support.
The father’s parents came to Australia in extremely difficult circumstances with virtually nothing. They worked very hard to ensure that the father and his siblings were able to advance themselves in the new country. Mr Ding wishes X and Y to have equal, if not better, opportunities to succeed than he did. The children have each attended (omitted) College, a prestigious private school in Adelaide, since they began their formal education.
Between June 2012 and December 2012, it is agreed that the mother did not spend time with the two boys, who were normally delivered to and collected from school by their paternal grandparents. However, the parties disagree about why the mother did not interact with the children during this period.
It is the father’s case that the mother did not attempt to contact either him or the children, although he made overtures to her to come and spend time with X and Y. It is his case that he wishes the children to have a meaningful relationship with their mother. However, he further deposes that neither child currently has any particular affection for their mother, because “she was rarely home and when she was she rarely interacted with them.”[1]
[1] See father’s affidavit filed 12 December 2012 at paragraph 78
The basis of this assertion is that he has been the children’s primary carer since birth notwithstanding the fact that he concedes that each child was breastfed. Essentially, it is Mr Ding’s case that, at separation and in the period since, the children have not had a warm and affectionate relationship with their mother, notwithstanding his support of such a relationship.
In her application filed on 19 November 2012, the mother sought orders that would see the children living predominantly with her. It was her case that, as a consequence of issues arising from the parties’ separation, the father was intent on alienating X and Y’s natural affection for her, arising from her pre-eminent role as their carer. At this stage, it was her position that the father worked long hours and she was better placed to be the children’s primary carer, the role she had discharged prior to June of 2012.
In her affidavit filed in support of her initiating application, the mother deposed as follows:
“I have been denied a relationship with my children since separation, which is now almost five (5) months ago. I miss them desperately and have no doubt that they miss me too. I can no longer allow the husband and the paternal grandparents to dictate to me and ostracise me from my children (sic) lives. Their conduct in this regard cannot be condoned at any level. It is clear that they are using the children to punish me for separating from the husband. I am a responsible, caring mother and have no personality or lifestyle characteristics which would detract from my capacity to care for my children in the best way possible.”[2]
[2] See mother’s affidavit 19 November 2012 at paragraph 37
On the other hand, the father’s position is that, notwithstanding his best efforts, X and Y have expressed a marked reluctance to spend any time whatsoever with their mother. In addition, they have been embarrassed by her appearance at their school and have sought to avoid coming into contact with her.
The mother’s application was first listed before the court on 10 December 2012. The father had not, at that stage, had an opportunity to formally respond. It was agreed that the parties should urgently commission an independent expert to provide a family assessment report, which would examine the relationship of the children with each of their parents and, if appropriate, attempt to canvas X and Y’s views.
Given the time which had elapsed since the children had last interacted with their mother and given that Mr Ding, ostensibly at least, was supportive of the children spending time with their mother, I was anxious that there be an opportunity for X and Y to spend some brief time with their mother, prior to the matter returning to court. In this context it was agreed that the children would spend from 9:00am until midday on 12 December 2012 with their mother.
In an earlier judgment, delivered on 19 December 2012, I described this intervention as “an unmitigated failure”. The father arranged for a (religion omitted) priest, who was also a member of the Vietnamese community to be present at the handover of the children as an independent witness. Thereafter, it is his case that both children resolutely refused to attend with their mother.
On the other hand, it is the mother’s position that the priest concerned, on the instigation of the father, assumed a responsibility for the handover, to which he was not entitled. The mother alleges that he indicated to the children that they had a choice as to whether they went with their mother or not, which they exercised against her, in order either to placate their father or as a consequence of his direction.
In these extremely difficult circumstances, on 19 December 2012, for reasons already published, I ordered that the two children should spend time with their mother, every few days or so, during the Christmas period, for periods of time beginning with two hours and increasing to four hours. The aim being to cautiously and incrementally re-introduce the children to their mother.
This regime was formalised on 17 January 2013, when it was ordered that the children should spend time with their mother each Wednesday from 4:00pm until 6:00pm and on each Sunday from 10:00am until 2:00pm. The children were to be delivered and collected, by their father, from the mother’s home located in (omitted).
At this stage, it was also agreed that Ms A, an experienced social worker should prepare an urgent family assessment report. At this stage, issues pertaining to the children were pre-eminent in the court’s considerations. However, it was also ordered that the parties exchange informal discovery of relevant financial documents and attend a financial mediation conference later in the year.
The first family assessment report
In her first family assessment report, Ms A identified issues relating to the alleged alienation of the children from their mother; the children’s attachment needs; and what were the views of X and Y themselves; as being the focus of her report.
Ms A noted the children had very many extra-curricular activities, including additional mathematics and English classes and swimming lessons, in addition to their regular schooling. These extra-curricular activities occupied six days per week.
Ms A described the mother as being quietly spoken, emotionally vulnerable and appearing to be a socially isolated woman. The father was described as not presenting indicating he was malicious or self-motivated.
In her observations of the children, Ms A described both X and Y as polite, compliant, shy, quiet, and serious-minded young children who were familiar with adult type discussion that child-like play. Both children identified to Ms A that they saw their father as being their main provider of care.
The children described time spent with their mother as being boring. In this context, the children both indicated that they would prefer to spend less rather than more time with their mother. X opted for once a month, whilst Y, the younger child indicated one minute each week.
Ms A was impressed with Mr Ding, describing him as being a caring father, who was attuned to the emotional needs of the two children concerned. Her description of her observation of X and Y’s interaction with their mother is upsetting. The children turned their backs to their mother, claiming that they did not understand her Vietnamese and she did not understand their English.
Overall, the children were described as showing no response to their mother’s attendance, being avoidant of her. In particular, the children pulled away from their mother’s attempt to hug them and were non-responsive to Ms Ding’s attempts to engage or communicate with them.
In her evaluation of the family, Ms A reported as follows:
“Whilst the children did not present with any obvious signs of being manipulated by one parent against the other it was likely that their exposure to the parties’ conflict over the years and strong attachment to their large extended paternal family had played a role in influencing their negative views on their mother. It is not uncommon for children of their age who have been exposed to family conflict to become polarised in their views of each parent and see one parent as the ‘goodie’ and one as the ‘baddie’, and form a strong alliance to one parent over the other.”[3]
[3] See family report at paragraph 52
In this context, Ms A was not in favour of there being any change of the children’s place of residence or of there being any significant increase in the time X and Y spent with their mother. Ms A considered that it was likely to be counter-productive to compel the children to spend more time with the mother.
However, notwithstanding this recommendation, Ms A also sounded a note of warning, indicating that if the children spent any less time than currently with the mother would risk them “growing either further apart from their mother and weakening the foundation even more.”
The current situation
The court, with the support of the independent children’s lawyer, adopted Ms A’s recommendations. At the stage of the release of her first report, in February 2013, it was the father’s position that the children were at the upper limit of what time they could spend with their mother.
It remained Mr Ding’s position that he was supportive and encouraging of the children having a more extensive relationship with their mother, but was powerless to compel X and Y to do anything against their wishes. It remained his position that the mother lacked both motivation and the capacity to engage with the children on their own level and in activities in which they are interested.
On the other hand, it was the mother’s position that the father and his family were both actively and passively involved in ensuring that whatever relationship the children had with her was severed. It was her position that the father unduly monitored her time with the children, with a view to discouraging X and Y from enjoying their time with her.
This essentially remains the position approximately eighteen months later, in mid-2014. Since early 2013, the children have been spending two four hourly periods with their mother on Wednesday and Sunday each week.
From Ms Ding’s perspective, this is inadequate to repair her relationship with the children or ensure that X and Y’s relationship with her has any level of intimacy, warmth or meaning. She wishes to progress to having overnight time with the children.
On the other hand, it remains the father’s perspective that he and his family have done the best they can to encourage X and Y to spend time with their mother, but the children remain hostile to her and highly resistant to spending even the briefest periods of time with her. It is the father’s position that the mother’s behaviour is, at times, bizarre and she has no insight into the needs of X and Y.
As a consequence, he asserts that he is at a loss to know what to suggest to the court other than he fears the children will respond poorly to any increase in their time with the mother and that therefore the current regime should be maintained as the only viable means by which the children can have at least some level of relationship with their mother.
The independent children’s lawyer is perplexed by the situation. She submits that it is likely to be counter-productive to proceed with undue haste in extending the children’s time with their mother, as this is likely to exacerbate their sense of alienation from her. However, Ms Parker, through her counsel Ms Fuda, has also submitted that the court needs to give earnest consideration to a modest increase in the time the children spend with their mother each week.
Ms Fuda therefore proposes that one of the periods be extended by approximately two hours and some thought be given to involving the mother and children in some activity, perhaps attendance at the children’s regular school assembly.
Over eighteen months has passed since the mother commenced these proceedings, which are a significant way from any final resolution. During this period, Ms A was asked to re-visit the family and update her report. She proposed a course of therapeutic intervention, which occupied some of this eighteen month period.
However, in the intervening period, significant facts have come to light, which provide some explanation for the significant rift between the maternal and paternal aspects of X and Y’s family. Both parties have been reticent to raise these issues, which are sensitive and complicated.
The second family assessment report
Ms A up-dated her family assessment in mid-2013. It was her view that there had been no advance in the quality of the children’s relationship with their mother. Rather, the impression she gained was that the relationship had deteriorated. Certainly this was Mr Ding’s view.
In interview with Ms A, Mr Ding indicated that things between him and his former wife were about to “get nasty” as a consequence of his sister commencing some form of court proceedings against the mother. The impression Ms A gained was that the police were in some way involved in the court proceedings.
Neither party has alluded directly to these proceedings in their material filed in this case. However, I have now been informed that there are proceedings on foot in the District Court of South Australia against Ms Ding, in which it is asserted that she has embezzled a significant sum of money from the (business omitted) owned and operated by the father and members of his family. The proceedings are being defended and are expected to be heard by the District Court in the middle of 2015.
As I understand matters, Ms Ding has not been charged with any species of criminal offence. However, the police executed a search warrant in respect of her home. From this circumstance, I gather that some form of complaint has been made to police but no formal action taken in respect of it. However, for obvious reasons, this state of affairs can only lead to an exacerbation of the tension between the parties.
Neither party has elaborated on these issues in affidavit material more recently filed. I am however advised by counsel for the father, Ms Pyke QC that the sum alleged to be involved is $600,000.00. On any view, this is a significant sum of money. It is alleged by the father and members of his family that the mother expropriated this sum whilst she was employed in the family’s (omitted) business.
In these difficult circumstances, it is hardly surprising that a court based conciliation conference failed to assist the parties to resolve the financial matters outstanding between them. It would appear to be the case that these issues will remain outstanding until the resolution of the proceedings in the District Court. I anticipate that these proceedings, from the father’s perspective, will be directed towards establishing a liquidated amount for the sum said to have been expropriated and establishing what has happened to the sum in question and ascertaining whether it is recoverable.
The father has filed a statement of his financial circumstances. This indicates that his employer is the (omitted) Pty Ltd. Mr Ding asserts that he owns a 1% interest in this business and in these circumstances he owes significantly more to his various creditors than the value of property, which he owns.
The mother does not appear to accept the truth of this assertion. She has filed an application in a case, in which she seeks to join various members of the father’s family as parties to the proceedings. Thereafter, pursuant to the provisions of section 106B of the Family Law Act, she seeks to set aside a number of real property transfers between the father and his siblings, which relate to properties in the Adelaide metropolitan area.
The father has not as yet formally responded to this application. It is his position that the application in a case is misconceived and the mother should file an amended application. An order has been made to this effect but has not, as yet, been complied with. No evidence has been provided in support of the mother’s contentions. However, it would appear probable that these further issues have worsened the already poor relationship between the parties.
In all these circumstances, it seems to me to be more likely than not that there is a schism between the maternal and paternal aspects of X and Y’s family. This rift is likely to heighten the pressures on the children, when they transition between their father and mother. This difficult situation provides the background to the current proceedings, as well as Ms A’s updated family assessment.
To Ms A, the father alleged that the mother had exerted pressure on X if he indicated to Ms A that he did not wish to visit her (the mother) any more. Mr Ding supported his claim by what he asserted was an entry in X’s journal. Ms Ding denied these claims.
In addition, as previously indicated, the parties had diametrically opposing views as to the success or otherwise of the court ordered regime for the children to spend time with their mother. To Ms A, the father indicated that the children were bored by their mother’s company and felt scared of her at times.
On the other hand, the mother reported that the children appeared to be coming happier and more emotionally engaged, whilst in her care. She believed that X and Y remained subject to their father’s covert direction not to express any positive emotion for their mother, during the periods they spent in her care.
In this context, the mother indicated to Ms A that she had sought assistance from a psychologist, with a Vietnamese background, to help her understand the children’s position and why they had so, in her perception, changed their attitude towards her. Ms Ding reiterated her position that she wished the children to come into her primary care and certainly for them to spend more time with her than currently.
In interview with Ms A, X indicated that he did not really like going to his mother’s home because it interfered with his interactions with his friends and the performance of his homework. He indicated that he wanted to spend thirty minutes a month with his mother.
Y expressed similar views to his older brother, indicating that there was nothing fun about spending time with his mother and during these periods, he and X sat on the couch playing with their IPad.
In the process of observed interaction, X and Y were found to be happy, relaxed and comfortable in their father and uncle’s care. On the other hand, whilst with their mother, the children avoided her attempts to hug them and declined to engage with her in any way, causing the mother to burst into tears.
Ms A found the family situation to be perplexing. In particular, she was not in a position to determine with clarity whether the children’s disclosures to her were as a consequence of exposure to family conflict and their loyalty to their father or were a product of their own personal experiences of their mother’s care and therefore an accurate reflection of their inferior attachment to her.
Ms A found the mother to be an isolated and emotionally vulnerable person, with limited familial and social support. In these circumstances, it was considered to be a positive development that she had elected to engage with a psychologist.
However, it is also important to note that Ms A assessed Ms Ding to have a sound insight into why the children were behaving in the way in which they were as a consequence of exposure to ongoing family conflict. In these circumstances, Ms A reported as follows:
“It was possible that the children’s observed behaviour towards their mother at the Assessment was not indicative of their general demeanour in her care, but more negative as a result of their father’s presence nearby and their primary loyalty to their father, their primary carer. This being said, it may have been an accurate portrayal of their time with their mother. Either way, at the very least, serious concern remained that the children continued to struggle with transitioning into their mother’s care and concerns remained at the possibility that the children felt pressured not to show their father their true level of love and care for their mother for fear of disrespecting him and causing their loyalty to him to be in question.”[4]
[4] See Ms A’s second report dated 25 June 2013 at paragraph 47
It remained Ms A’s view that given X and Y’s obvious attachment to their father and the negative reports made by them of their mother, it was not appropriate to significantly change the current arrangements for the children’s care. Rather, Ms A recommended that:
“… it was in the children’s best interests to continue to spend short but frequent periods of time with their mother in an attempt to re-build their attachment and form a more safe and secure bond between mother and son.”[5]
[5] Ibid at paragraph 50
However, Ms A conceded that much work needed to be done to achieve any outcome which resulted in X and Y spending significantly greater periods of time, in their mother’s care, in the future. In these circumstances, Ms A recommended the parties seek the involvement of a family therapist, to work with Ms Ding and the children, to assist X and Y to feel safe and secure in her care.
The parties, with the support of the independent children’s lawyer, agreed to adopt Ms A’s recommendations. In this context, orders were made by the court on 24 July 2013, which required the parties to attend upon Mr D, a family therapist, to undertake the process of counselling recommended by Ms A. In addition, Ms Ding was directed to file a report from her treating psychologist detailing the nature of her sessions with the psychologist. This latter direction has not as yet been complied with.
More recent developments
As previously indicated, the involvement of Mr D with the family has delayed the passage of the case through the court’s processes. This delay has been exacerbated by the outstanding and complex controversies regarding issues relating to division of the parties’ marital property, particularly the issues arising from the alleged expropriation of funds.
In these circumstances, Ms Ding is frustrated by the lack of progress in the case, particularly given that arrangements for her to spend time with X and Y remain on the same footing as they were in January of 2013, now over eighteen months ago.
In October of 2013, the independent children’s lawyer filed a copy of a report from Mr D, setting out his involvement with the family. He summarised the children’s reaction to their mother as being one of resistance to engage with her. However, of some note, Y appeared to soften his stance, in respect of his mother, in response to some encouragement from her.
Mr D was aware, in general terms, of the allegations regarding the mother’s financial expropriation from members of the father’s family. In this context, Mr Ding reported to Mr D that his family no longer trusted the mother.From this statement, Mr D gathered that loyalty to family was a central tenet of Mr Ding’s family. By necessary implication, the father was of the view that Ms Ding, through her actions, had forfeited membership of his family and this was likely to have some implications for the nature of her relationship with the children, from Mr Ding’s perspective.
In this context, Mr D noted that a significant aspect of the father’s family was that: “[t]here are very strong culturally based attachments, which bond the family together at an emotional, physical and possibly spiritual level which X and Y are very much integrated into.”[6] At present, it seems to be Mr D’s opinion that the mother is outside these paternal familial attachments.
[6] See Mr D’s report dated 28 October 2013 at paragraph 30
Given this finding and the rift between the paternal and maternal aspects of the children’s family, arising from the alleged criminal behaviour of the mother, Mr D found the children’s apparent loyalty to their father and members of his family to be readily understandable.
However, Mr D also considered it important for the children’s overall emotional wellbeing to have a meaningful level of relationship with their mother and for their emotional connection with her to be acknowledged and supported.
Mr D was concerned that the longer the children’s relationship with their mother remained conflicted, the greater was the risk of X and Y developing emotional difficulties in the longer term. In particular, he was concerned that they may develop poor self-esteem or even depression.
In his report, Mr D expressed some concern that Mr Ding was not properly supporting the relationship between the children and their mother. Mr D noted the father’s animosity towards Ms Ding, arising from the issue of the alleged expropriation of money from the (omitted) business.
Mr D reported as follows in respect of his observation of the father and his impressions of his interactions with the children:
“Notwithstanding the issues involved in this situation, his behaviour in not acknowledging or speaking to Ms Ding in front of the boy’s, does not demonstrate appropriate or respectful modelling, and is likely to act as a discouragement, reinforcing the difficulties between the boys and their mother. This would particularly be the case if this is a consistent behaviour on his part. There may well be no intention on his part to deliberately alienate the children from their mother; however his attitude and behaviour would not be assisting the situation.”[7]
[7] Ibid at paragraph 28
Given the importance Mr D placed on X and Y having a viable form of relationship with their mother, he recommended that all concerned undergo a process of attachment based therapy aimed at improving the [children’s] maternal relationship.
In such a process, Mr Ding and his extended family were critical players and, as such, needed to be involved more actively in some of the discussion around how best to support X and Y in improving their relationship with their mother.[8]
[8] Ibid at paragraph 32
I have not been provided with any up to date evidence regarding how successfully or otherwise Mr Ding and his family have engaged in the process envisaged by Mr D or indeed whether they actively support it.
However, given the present impasse in the case, it is difficult to be sanguine about the situation, which remains both factually and culturally fraught with difficulty. Not the least of these difficulties is Ms Ding’s lack of fluency in English, when compared to both the children and father.
However, on 19 March 2014, Mr D wrote to the independent children’s lawyer and confirmed that Ms Ding had had a number of sessions with X and Y, which in his perception appeared to have had some “positive impact”. On this basis, it had apparently been agreed that it was not currently necessary for the children and their mother to have any further sessions with Mr D.
In his letter to the independent children’s lawyer, Mr D noted that Ms Ding would welcome more time with the children. In this context he noted that there was a regular school assembly, held at 2:30pm each alternate Wednesday which theoretically would enable Ms Ding to be more regularly involved in school/student/parent activities.[9]
[9] See annexure GRP2 to the affidavit of Ms Parker filed 21 March 2014
As indicated during the course of the interim hearing, I regard Mr D’s letter as being somewhat sphinx-like. He does not specify explicitly what are the positive aspects of the interactions between the children and their mother which he has observed are. On any view, he does not provide any clear indication as to what is the next step to be taken in the matter, which in my view remains an extremely difficult one.
The legal principles applicable
It is difficult, if not impossible, for the court to resolve issues of fact at the interim stage. Affidavits cannot be cross-examined. Necessarily, due to constraints of time, the interim hearing takes place in a truncated form.
In this case, as I am pains to point out to the parties concerned, there are many significant evidentiary controversies arising. The most significant of which is why the children concerned are so resistant to spending time with their mother. It is not possible to resolve this seminal issue in the context of the present proceedings.
Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage.
Part VII is the part of the Family Law Act 1975 applying to children. In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in s.60CC. These matters are to be considered in the light of the principles and objects underpinning Part VII contained in section 60B.
In the context of the current case the following object is likely to be germane:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; [section 60B(1)(a)
As well as the following objects, are set out in section 60B(2):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
In part, in pursuit of these objectives section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[10]
[10] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[11] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[12]
[11] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[12] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In the case of Goode & Goode[13], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[13] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·if the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·if the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·if the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·if neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
This is not a case, in my view, which is centred on issues of abuse, neglect and family violence. However, given the current strained parental relationship between the parties, it is, I think, largely self-apparent that it would not be helpful to either X or Y for their parents to share parental responsibility for them in any equal sense and so for the provisions contained in section 65DAA to become engaged.
Accordingly, in my view, the next step, so far as arrangements for the children to spend time with their mother are concerned, must be considered in the light of the provisions contained in section 6OCC of the Act.
Section 60CC factors
(a) Primary Considerations
The father has made general complaints of neglect in respect of the mother’s parenting of X and Y. These complaints are potentially serious but, in my view, are not of such moment to disqualify Ms Ding from spending time with the children. In my assessment, this is not a case centred on protective issues arising from the children potentially coming to harm, in a physical sense, whilst in their mother’s care.
Although relations between the parties are extremely poor, it is also not a case to do with family violence. It is however a case to do with the potential for the children to suffer some form of emotional harm, within the context of either spending or not spending time with one of their parents, namely, of course, their mother.
Accordingly the case is about the benefits likely to accrue to X and Y of having a meaningful level of relationship with their mother, who is currently only spending a modest or token amount of time with them. In this context, the following comments of Brown J in Mazorski v Albright [14] are helpful:
“I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility…”
[14] Mazorski v Albright (2008) 37 Fam LR 518 at 526 -7
At present X and Y are spending only six hours per week in the care of their mother. It is Ms Ding’s position that this is inadequate to maintain the required level of relationship between mother and children and in order to secure X and Y’s best interests, in the longer term, it is necessary to increase this time in order to improve the quality of that relationship.
It is the mother’s case, supported by Mr D, that it will psychologically detrimental for X and Y not to have a more intimate and so meaningful relationship with their mother. It is her position that the current arrangement does not provide sufficient quantity of time to allow her and the children to have a relationship which is calculated to be important, significant and valuable to X and Y
On the other hand, it is the father’s case that it is likely to be psychologically harmful for the children to compel them, contrary to their unequivocal views, to spend time with a person with whom they apparently now have little in common.
Essentially, it is Mr Ding’s case that X and Y do not currently have a meaningful level of relationship with their mother – he asserts as a consequence of Ms Ding’s behaviour – and for the court to attempt to change this situation is likely to be counter-productive and detrimental to X and Y.
In general terms, I agree with Mr D’s assessment that it is potentially deleterious, for both X and Y, not to share some form of meaningful relationship with their mother. Regardless of the validity or otherwise of the criticisms made by Mr Ding of Ms Ding, the fact remains that the children have shared a household with their mother for a significant proportion of their lives to date. Accordingly X and Y know their mother very well indeed and must have shared very many experiences with her.
Given this state of affairs and the central fact of the biological relationship between Ms Ding and the children, she has the potential to be a very important figure in the children’s lives. In addition, Ms Ding shares a Vietnamese heritage with the children – as indeed does Mr Ding – this factor is also important.
In Baranski & Baranski[15] I said as follows in respect of a situation where the court was required to give earnest consideration to severing a parental relationship between a father and his two young children due to very serious incidents of family violence. These considerations remain germane to this case, where the court is compelled by circumstance to consider the maintenance of a parental relationship at a very modest or even token level.
The principles underlying Part VII of the Family Law Act place parents in a position of primacy towards their children. Children have a right to know and be cared for by both their parents and to spend regular periods of time with them [section 60B(2)(a) & (b)].
Children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances. As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first-hand.
A child’s parents are also likely to be a source of unconditional love and approval for the child concerned. Parents provide children with knowledge and information about their wider family and forebears. Parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents. For these central and self-apparent reasons, children benefit from having a “meaningful” relationship with both their parents.
The parental bond, involving nurture and support, is central to a child’s ongoing development. Children need both paternal and maternal role models to assist them to move appropriately towards maturity and become competent and insightful parents in their own turn. For these reasons, it is a very significant thing indeed, for a court to order that a child spend no time whatsoever with a parent and, in effect, sever a parental relationship for a child.
[15] See Baranski & Baranski [2010] FMCAfam 918 at paragraphs 322 - 325
Ms Ding has persisted with these proceedings in the face of considerable obstacles. In these circumstances, I accept that she loves both X and Y. Certainly, this was the assessment of both Ms A and Mr D, which at this stage I have no reason to discount.
Accordingly, in the longer term, it seems probable that the children will benefit from knowing their mother loves them and cares about them. In these circumstances, it seems incumbent upon the court, particularly given the legislative structure of Part VII of the Act, to persist in its attempts to support the relationship between Ms Ding on the one hand and X and Y on the other hand.
In my view, the present arrangement for the children to spend approximately six hours per week with their mother is not likely to provide a sufficient temporal framework in order to either imbue the children’s relationship with their mother with the pre-requisite level of meaning or indeed to facilitate the repair of that relationship. At best, this arrangement will maintain a form of stilted and difficult relationship between mother and children.
However, I also acknowledge that it is likely to be counter-productive, for the court, to embark upon an ambitious regime to fast track the children’s relationship with their mother, which given the children’s current attitudes, is likely to be destined to fail. In this context, the case presents a dilemma. It is likely to be contrary to the children’s best interests to leave things as they are but equally disadvantageous to unduly change them.
It appears clear that the rift between mother and children has coincided with the difficulties arising from the breakdown of the marriage between the parties, which seem irretrievably entwined with issues related to the alleged misappropriation of funds from the (omitted) business.
This adds a complex layer of relationship and financial politics to the case, which is not likely to be helpful in assisting each of the parties, but particularly Mr Ding, to focus on the children’s long term best interests, an essential component of which is likely to be that they have a viable level of relationship with their mother.
The involvement of Mr D in the family was, ostensibly at least, supported by both the mother and the father. Mr D was concerned that Mr Ding was prone to tacitly or inadvertently subvert the children’s attitude towards their mother. At this stage, I am not in a position, on the basis of tested evidence, to establish whether this is so or indeed whether the family therapy undertaken by Mr D has had any effect in this regard.
However, it remains a significant issue in the case. In my assessment, on the basis of the evidence available to me, I have reason to consider that Mr Ding is not likely to be particularly receptive to the children repairing their relationship with their mother, a person whose behaviour he believes have placed her beyond the pale of his family, including quite possibly, X and Y.
Certainly the evidence does not indicate that there has been any great break through arising from the process of family therapy overseen by Mr D, which is likely to be reliant for success on the unequivocal commitment of all concerned to it.
Given the acrimonious circumstances arising as a consequence of the allegations of theft by the mother, it seems improbable that Mr Ding is likely to commit to any continuation of it and his attitude is likely to influence the children. On any view, the current circumstances cannot be regarded as being propitious for any significant improvement in the relationship between the children and their mother.
In these circumstances, it is my view that the court must focus on maintaining the current level of relationship between X and Y and their mother. In my view, it is essential that some conduit be maintained between mother and children. I also agree, with the independent children’s lawyer, that this connection needs to be extended, albeit extremely cautiously.
At this stage, it is unrealistic for the children to spend overnight time with their mother. Neither they nor Mr Ding are likely to support such a significant increase in the regime of time the children spend with their mother. However, in my assessment, the court needs to adopt an approach, which will give more time and so more opportunity for the repair of relationship between X, Y and Ms Ding.
b) Additional considerations
The evidence currently indicates that neither child is in favour of spending any significant periods of time with their mother. Obviously this is an important factor in the case. However, the court must also look at the likely factors, which have influenced the children’s views and the level of insight and maturity which can be ascribed to X and Y in professing such an attitude towards their mother.
It appears very likely that both children are significantly influenced by their father and members of their extended family, who are strongly antipathetic towards Ms Ding. In addition, although the children share a Vietnamese background, with their mother, there is likely to be a significant cultural and experiential gulf between X and Y, on the one hand and Ms Ding, on the other.
X and Y attend an elite school and engage with the cultural mainstream in this country. They are well educated children, adept at the use of modern technology. They speak English with native fluency. Ms Ding does not share these attributes. In these circumstances, it is readily explicable why the children’s views have crystallised in the form in which they have.
The children’s views are undoubtedly significant. However, at the ages of eleven and nine respectively, it is inappropriate that X and Y’s views alone should be the primary determinative factor, in this case, particularly at an interim stage. In the longer term, for the reasons provided by Mr D, it is likely to be beneficial for the children to have a natural and comfortable relationship, with their mother, regardless of the differences of experience between them.
At present, it seems more likely than not that Mr Ding, in association with members of his family, has become the main focus for providing care for X and Y, who are largely estranged from their mother, notwithstanding the fact that she provided a significant level of their care, whilst they were infants.
Although the children appear to be acting out their rejection of their mother, in the presence of both Ms A and Mr D, it seems to me, to be improbable that there have been previously no positive aspects whatsoever in regards to the relationship between Ms Ding and the children.
For obvious reasons, there are likely to remain significant barriers in respect of Mr Ding’s capacity to support X and Y in improving their currently compromised relationship with their mother. This is as a consequence of the powerful financial controversies between the parties, which have come into the open following their separation.
What will be the outcome of either the District Court proceedings or the property proceedings in this court is uncertain. It is also likely that each of these proceedings will take some time to play out. This level of uncertainty is not likely to assist Mr Ding to have a more positive attitude towards Ms Ding and her involvement with X and Y.
At this stage, the District Court proceedings will not proceed to trial until mid-2015. When judgment will be delivered and what it will be are, of course, factors unknown to me. It seems probable that the property proceedings, in this court, will have to follow the District Court proceedings, with the potential for the schism between the children’s parents to widen in that period. Although I cannot predict the outcome of these proceedings, it is hard to anticipate one which will be satisfactory to all concerned.
In my view, the very real possibility that this acrimonious dispute, between the parties, will remain endemic, is the most significant factor in the case, so far as arrangements for the parenting of X and Y is concerned. It represents a very real threat to the children’s long term well-being.
However, so far as I know, X and Y remain high achievers in their school environment. In these circumstances, in my view, the court must be very cautious about abruptly changing arrangements for their care.
I agree that it is likely to be counter-productive, if the court attempts an unduly ambitious or experimental approach in respect of any attempts it makes to improve the children’s relationship with their mother. The court’s efforts, in this regard, must be gradual and incremental.
The parties live reasonably close to one another in suburban Adelaide. The difficulties relating to the children spending time with their mother rest on emotional impediments rather than logistical difficulties. This is relevant, as the legislation in question speak of a child’s right to maintain personal relations with both parents. In this case, there are no practical impediments to Y and X spending regular periods of time with their mother.
Mr Ding has many criticisms of the mother’s parenting capacity and level of insight. These criticisms have not as yet been examined by the court. In my view, this situation militates in favour of the court adopting a cautious approach to the case, particularly given the currently entrenched views of the children.
Conclusions
This is a difficult case, which is likely to remain unresolved, in respect of both children’s and property issues, for a significant period of time. In this context, the court must consider the best means of managing the case, particularly to ensure that X and Y remain in as stable a situation as is possible.
In this context, in my view, it is imperative that both children continue to have some form of relationship with their mother. However, if this is unduly forced, it may be counter-productive, resulting in the possible complete severance of the relationship, rather than a productive extension.
In these circumstances, I have decided to accede to the independent children’s lawyer’s position and modestly increase the time the children currently spend with their mother by around two and a half hours per week. In this regard, I propose extending the Sunday period from 2:00pm until 4:30pm.
The rationale of this increase is that it will give the mother more time to, I hope, engage in some activity with the children, which they are likely to find appealing. I do not know what such an activity will be, although I asked each of the parties to try and think of something, when the matter was last before the court. At that stage, neither was able to assist me.
I anticipate that this increase will be met by a chorus of disapproval from the children. It is my impression that both X and Y are polite children who are accustomed to doing what their elders and teachers direct them to do. It is Mr Ding’s responsibility to ensure that the children go to spend time with their mother, as directed.
It is also his responsibility to support the children in the decision which the court has reached. In my view, it is a modest increase in the time the children spend with their mother and, as such, should be readily achievable by all concerned, including X and Y.
In my view, the longer term management of the case is more problematic, given the uncertainty about how the complex financial issues arising between the parties are likely to play out and the comparatively extended period before this court (or indeed the Family Court) is likely to be able to resolve them.
I acknowledge that as a matter of general principle it is not usually the case that the court bifurcates proceedings into portions dealing with children and portions dealing with property. Such a course risks adding to legal expenditure for the parties concerned.
However, the reality is that, until the District Court proceedings are concluded, the property aspect of this case cannot be finalised. In addition, for the reasons outlined, the property proceedings, centring as they do on serious allegations of dishonesty, are likely to constitute an impediment to any speedy advance in respect of the children’s aspects of the case.
The property proceedings also have the potential to have many additional parties, if Ms Ding’s application to join the father’s siblings to the case is successful. In my view, these proceedings cannot be described as being at the lower end of the range of complexity, so far as Family Law matters generally, are concerned.
In my view, these are the type of proceedings which require intensive case management. As I understand matters, given that the Family Court of Australia has the resources to deal with the more complicated examples of litigation arising under the Family Law Act, it is appropriate that this matter be transferred to that court.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 31 July 2014
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