DING & WANG
[2017] FCCA 2172
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DING & WANG | [2017] FCCA 2172 |
| Catchwords: FAMILY LAW – Interim parenting – time with father. |
| Legislation: Family Law Act 1975, ss.60CC, 61C, 61DA, 65DAA |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 |
| Applicant: | MS DING |
| Respondent: | MR WANG |
| File Number: | SYC 6278 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 25 July 2017 |
| Date of Last Submission: | 25 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sproston |
| Solicitors for the Applicant: | Go To Court Lawyers |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Family Law Matters |
PENDING FURTHER ORDER
That the children X born (omitted) 2013 and Y born (omitted) 2010 live with the mother.
That the children spend time with the father as follows:
(a)Commencing on Wednesday, 11 October 2017 and each alternate week thereafter, from after school or 3pm on Wednesday to before school or 9am on Thursday;
(b)Commencing on Friday, 20 October 2017 and each alternate week thereafter, from after school or 3pm on Friday to before school or 9am on Monday;
(c)From 3pm on 24 December 2017 to 3pm on 25 December 2017;
(d)From 3pm on the Chinese Lunar New Year’s Eve in 2018 to 3pm on Chinese Lunar New Year’s Day in 2018;
(e)On each of the children’s birthdays from 3pm to 7pm; and.
(f)During the school holidays at the conclusion of Term 4 in 2017, for two weeks as agreed between the parties, but failing agreement from 9am on 8 January 2018 to 6pm on 21 January 2018 inclusive.
The time provided for in paragraphs 2(a) and 2(b) is suspended during the period 20 December 2017 to 28 January 2018.
For the purposes of changeover, unless changeover can occur at the children’s school or pre-school as applicable, the mother will deliver the children to a public venue nominated by her at the commencement of the children’s time with the father and collect the children from a public venue nominated by her at the conclusion of the children’s time with the father.
Each of Ms Ding and Mr Wang and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2013 and Y born (omitted) 2010 from the Commonwealth of Australia.
X born (omitted) 2013 and Y born (omitted) 2010 be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 7 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
THE COURT FURTHER ORDERS THAT
Pursuant to Section 13C (1) b of the Family Law Act1975 the parties shall between 10 January 2018 and 1 March 2018 attend mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties or failing agreement on the application of either party as nominated by the President or other office bearer of one of the following:
§LEADR;
§Australian Mediation Association;
§Australian Institute of Arbitrators and Mediators; and
§Law Society of NSW Mediation Unit.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Family Dispute Resolution Practitioner not less than 7 days prior to the mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or nominated then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)Pay one half of all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
The matter is listed for directions at 9.30am on 1 March 2018.
IT IS NOTED that publication of this judgment under the pseudonym Ding & Wang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 6278 of 2014
| MS DING |
Applicant
And
| MR WANG |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings concerning two children Y born (omitted) 2010 and X born (omitted) 2013.
The parties to the proceedings are the Applicant mother and the Respondent father.
The proceedings were commenced by the filing of an Initiating Application by the mother on 28 April 2017 together with an Affidavit of the mother and a Notice of Risk. The interim orders sought by the mother in the Initiating Application were that the children live with the mother and spend time with the father as agreed and that the children be placed on the Airport Watch List. That application was given a return date of 13 June 2017.
The father filed a Response to the mother’s Initiating Application on 8 June 2017 together with an Affidavit and Notice of Risk.
The matter came before the Court on 13 June 2017 for the first time. On that date the Court made orders by consent and on a without admissions and without prejudice basis that:
a)the children live with the mother;
b)the children spend reasonable time with the father as agreed and failing agreement for a period of not less than three hours per week supervised by Phoenix Rising;
c)the parties to enrol in a parenting course;
d)the children to be placed on the Airport Watch List; and
e)the father to hold the passport of the child Y and the mother to hold the passport of the child X.
The Court further ordered on that date that the matter be set down for an urgent interim hearing on 25 July 2017, these are the Reasons in relation to that hearing.
Competing proposals
At the time of the interim hearing on 25 July 2017 the orders made by consent for the children to spend supervised time with the father through Phoenix Rising had just commenced. It is the mother’s position that these orders remain in place.
The father proposes that the parties have equal shared parental responsibility for the children, that the children spend time with each of the parents on a fortnightly rotation as follows:
a)In week one:
i)with the mother from after school Monday or 3pm until before school Wednesday or 9am;
ii)with the father from after school Wednesday or 3pm until after (hobby omitted) on Saturday during the (hobby omitted) season or otherwise 2pm;
iii)with the mother from after (hobby omitted) on Saturday or 2pm until before school on Monday or 9am of the second week.
b)In week two:
i)With the mother from after school Monday or 3pm to before school on Friday or 9am; and
ii)With the father from after school on Friday or 3pm until before school on the following Monday or 9am.
The father also seeks time with the children for half of the school holidays and time with the children for special occasions including Father’s Day and time over Chinese New Year.
Documents relied on
The mother relied on the following documents at the interim hearing:
a)Initiating Application filed on 28 April 2017;
b)Notice of Risk filed on 28 April 2017;
c)Affidavit of the Ms Ding affirmed and filed on 28 April 2017; and
d)Affidavit of Ms Ding affirmed 11 June 2017 and filed 13 June 2017.
The father relied on the following documents at the interim hearing:
a)Response filed 8 June 2017;
b)Notice of Risk filed 8 June 2017; and
c)Affidavit of Mr Wang sworn and filed on 8 June 2017.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Contact Report dated 23 July 2017 from Phoenix Rising;
b)Exhibit 2 – Provisional Apprehended Domestic Violence Order dated 15 July 2014;
c)Exhibit 3 – material produced under Subpoena from (omitted) Bank in Sleeve 1 being tabs ‘W1’ and ‘W2’;
d)Exhibit 4 – material produced under Subpoena from (omitted) Bank in Sleeve 1 being tabs ‘H1’, ‘H2’, ‘H3’ and ‘H4’; and
e)Exhibit 5 – (omitted) bank statements with tabs ‘H15’, ‘H16’ and ‘H17’.
The Law
The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings. The primary issue is whether the children are at an unacceptable risk of harm in the mother’s care and if so what, if any time, they should be spending with the mother. If the answer is that they are not, the issue then becomes a competing interim live with application, based on the determination of the relevant best interest considerations.[1]
[1] see for example Lang & Partington [2017] FamCAFC 40 at [53]
The Full Court in Goode v Goode[2] mandated that the legislative pathway must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, such as this one. The Full Court in Goode & Goode also said:
… the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[2] (2007) 36 Fam LR 422, (2006) FLC 93-286 at [81]
Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[3] the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….
[3] [2010] FamCAFC 101 at [120]
In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[4]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[4] [2016] FamCAFC 156 at [9]
A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.
Uncontested relevant facts
The father was born on (omitted) 1983 and is currently 34 years of age.
The mother was born on (omitted) 1984 and is currently 33 years of age.
The parties commenced a relationship during high school in China in 2001.
The father arrived in Australia in 2006 on a student visa.
The mother arrived in Australia in 2008 on a student visa.
The parties married on (omitted) 2009 in Sydney.
On (omitted) 2010 the first child of the parties, Y was born and is currently seven years of age.
The father obtained Australia Citizenship in 2013.
On (omitted) 2013 the second child of the parties, X was born and is currently four years of age.
The parties separated on 12 May 2016 and the children continued to live with the mother and spend some overnight time with the father.
Between May 2016 and April 2017 X spent two nights per week with the father and Y spent three nights per week with the father.
The child Y holds a Chinese Passport as at the time of his birth neither of the parents were Australian citizens and the child X holds an Australian Passport.
Other relevant evidence
In the mother’s case
The mother says that there is a history of violent and controlling behaviour by the father and his family towards her which “included verbal, mental and physical violence”.
The mother says that the father was first violent and abusive towards her when the parties discovered the mother was pregnant with their first child and that the father requested that she have an abortion having then gone ahead and making two appointments for the procedure despite the mother’s protests against it.
The mother says that the father’s family gave the parties $10,000 towards the child however, upon the mother informing the father of this he became angry towards the mother throwing pillows at her and demanded that she give him the money because he had spent “lots of money on the wedding”. The mother gave the father the money and is unaware what he did with it.
Following the child Y’s birth the mother says that the father and his family were critical of her level of contribution around the home and that this also continued following the birth of the parties’ second child X.
Between 2011 and 2014 the mother says that the father’s outbursts became increasingly violent with the father choking her and pushing her often whilst she was holding the child Y.
The mother did not call the police as she was fearful of the father and believed that she “should tolerate this abuse and be a good wife”.
The mother describes an incident during the Christmas holidays in 2012 when the father lost his patience with the child Y and “hit” him in the nose which caused the child to have a bleeding nose. The mother says that the father later that night told her “I feel guilty for hitting Y”.
The mother eventually did call the police on 6 July 2014 following another violent incident where the father had thrown a plate at the mother’s feet after she had asked the father to do the dishes. The mother ran upstairs and locked herself in the bathroom where the father had eventually “managed to break into the bathroom” and continued to verbally abuse the mother.
The police attended the parties’ home that evening and applied for an Apprehended Domestic Violence Order for the protection of the mother from the father. The mother says that she felt pressured by the father and each of their extended families to withdraw the Apprehended Domestic Violence Order which was done on 19 August 2014. The night before the mother describes an incident where the father had pushed the mother’s head into her notebook computer and said words to the effect of “I don’t care about the AVO, call the police now to get me in jail, I don’t care”.
The mother is very critical of the father’s time playing computer games throughout their relationship and is a recurring complaint of the mother throughout her Affidavits.
The mother left the father in September 2014 and attended upon a women’s refuge in (omitted), however had returned to the father in May 2015 saying that she felt pressured by the families to do so. The mother says that upon her return the father’s abuse towards the mother continued. She says that he would blame the mother for things that had gone wrong in the father’s life, he would complain that she was lazy, crazy and insane and “you have shit in your brain”.
The mother says that the child Y began picking up on the father’s behaviours towards the mother and their daughter X.
The mother subsequently fell pregnant in (omitted) 2016 and was again directed by the father to have an abortion, which she did. The mother subsequently sought the assistance of a psychologist to help her deal with the depression she was suffering following the tumultuous relationship and the ultimate abortion of the parties’ child in 2016.
Upon the parties separation on 12 May 2016 the father had suggested to the mother that they each keep a child, with the father to keep Y and the mother to keep X. The mother says the father wanted to keep their son because he is the heir to his family name.
Following separation the child Y would spend three nights per week with the father and the child X would spend two nights per week with the father. However, the mother again began to notice the behaviour of Y was becoming concerning as he would make remarks such as “Mr Wang is the boss of mummy” and “X you have to listen to me or I will hit you”. The mother subsequently engaged the assistance of a child psychologist and attaches a brief report of the psychologist to her Affidavit filed 13 June 2017.
Upon the parties separation the father began attending the children’s school uninvited and would text the mother saying that he was picking the children up. The mother kept Y home from school as she was fearful of the father attending and removing him, she subsequently changed Y’s school without notice to the father. The mother commenced proceedings shortly thereafter.
The mother remains concerned that the father will remove the child Y from the Commonwealth of Australia to take him to China on the basis that his family is wealthy and reside in China and that Y is their only grandson.
The mother also says that the father has left her financially deprived as he controlled the family’s money and that she does not know where it is. The mother is currently residing in a women’s refuge shelter. The mother says that the father transferred the parties’ property to members of his family on 14 March 2016 which the mother was unaware of until August 2016.
In the father’s case
The father denies any history of family violence.
The father says that prior to separation whilst he was working full time during the week he would take the children to school on average three times per week and primarily undertook the children’s nightly routines including assisting with homework, bathing the children and reading to them before bed. The father says that he also took the children to their extra-curricular activities such as (hobby omitted) and (hobby omitted) lessons.
The father agrees that 4 July 2014 the parties had an argument and that he threw a plate at the floor and that it broke. He denies that he intentionally threw the plate at the mother.
Following the mother’s move with the children from the family home the father says that he would visit the mother and the children in the afternoons and would sometimes stay the night.
The father says that he paid the mother $150 each week to assist with the care of the children and that the mother had the access to a secondary credit card which she used to meet the expenses of the children.
The father and the child X travelled to China in 2016 for the Chinese Spring New Year whilst the mother and the child Y remained in Australia. This was by agreement between the parties.
The father says that following the final separation of the parties in 2016 he sought to have each of the children stay with him for the same amount of time, however the mother refused this and the parties came to an agreement that the child Y would spend three nights per week with the father and the child X would spend two nights per week with the father. The father remained involved with Y’s (hobby omitted) during this time taking him to games on Saturdays.
The father would speak to the children whilst they were in the care of the mother approximately two nights per week.
The father says that the parties communicated well with respect to the children following their separation and that each of the parties attended school or social events on many occasions without an issue.
The father says that he did not want the children to spend time apart and that he did not like them being treated separately, he says that it was the mother who disagreed with the child X spending extra time with him.
The father describes a strong relationship with both of the children where they play games, do puzzles, read books, sing, play (hobby omitted) and attend the park.
The father says that the children are very close to one another and have a strong bond and that he is concerned about the effect separating the children is having on them.
The father’s current employment allows him to work from home and is able to collect the children from school/preschool on most days and he is available on the weekends to care for the children.
The father is unaware of the where the mother and the children are currently residing and is concerned that they are living in a refuge.
The father says that he attended upon Y’s school on 7 April 2017 and was informed that he was not in attendance. The father could not get in touch with the mother and as a result the father reports the mother and children as missing persons on 9 April 2017.
Similarly, on 19 April 2017 the father attended upon X’s preschool and was informed that she was not in attendance.
The father subsequently receives notification that Y has been enrolled at (omitted) School on 11 May 2017.
The father currently pays $271.80 in child support to the mother and that in the past he would pay preschool and school fees and fees for extra-curricular activities, however these additional fees have ceased since the mother has changed the children’s schools and has stopped communication with the father about the children.
Contact Report
On 13 June 2017, and pending the interim hearing, orders were made by consent for the children to spend supervised time with the father. The first and only time that the children saw the father from the making of those orders and before the interim hearing, was on 23 July 2017. They had not seen him for approximately three months prior to that.
When they arrived at the father’s home and saw the father, both children appeared excited to see the father and they ran to him to hug him. The father interacted with the children in an appropriate manner, and they appeared to enjoy the time they spent with him. There were quite a few activities the children and the father involved themselves in during the three hours they spent together. The father was able to look after the children’s physical and emotional needs on the day.
It was said from the Bar table that one of the children was unsettled following the time between father and children, however, there was no evidence about these matters, no doubt due to the proximity of the interim hearing.
Relevant Considerations
The mother submits to the Court that there is an unacceptable risk of harm to the children on the basis that they would be exposed to psychological abuse and the risk of the parties coming into contact with one another.
The mother’s case is that Y was starting to imitate the behaviours of the father and as such the mother engaged the services of a psychologist to assist Y with these behaviours. The only evidence of such treatment is a letter dated 8 June 2017 from Ms S Psychologist which indicates as follows:
Y presented to our service on the 21st March 2017 for the purpose of receiving help in the management of his anxiety and behavioural challenges… the mother… was particularly concerned with Y’s disruptive behaviours and poor concentration at school and in the home environment…
Regular EEG Neurofeedback treatment was administered to assist Y in managing his anxieties… also … in improving Y’s concentration levels… general play therapy and psychoeducation were included to increase Y’s emotional awareness.
Significant behavioural improvements first occurred on the 28th March 2017… Consistent improvements were then observed from that point onwards.
As noted earlier, post separation and until April 2017 the children were spending time with the father on a regular basis. The children stopped spending time with the father on or about 6 April 2017. They did not see him again until 23 July 2017.
On the mother’s case, the father became angry when he learnt that the mother had taken Y to therapy and the nature of the treatment which was administered, being neurofeedback treatment, without his consent. After April 2017 the mother changed the children’s pre-school and primary school enrolment without notification or input from the father. She says she was concerned the father would take the children to China and not return them. The mother also moved herself and the children out of the apartment where they had been living into a refuge at this point in time. The mother then commenced these proceedings seeking orders for the children’s names to be placed on the Airport Watch List.
The allegations of family violence are yet to be tested. The Court was urged by mother’s Counsel to act cautiously.
The children had been spending time with the father post separation for a period of almost 12 months on an unsupervised basis, where such time was significant and substantial. The mother’s Affidavit reads as follows:
However, I believe that Y began to imitate inappropriate behaviour displayed by Mr Wang including saying that Mr Wang is “the boss of mummy”, “X you have to listen to me, otherwise I will hit you.” I was so concerned I engaged him with a child psychologist…
The Court does not find that there is an unacceptable risk of harm to the children if they were to spend time with the father on an unsupervised basis. The onus has not been met by the mother. While the Court accepts that there may be risks to the children and to the mother as articulated by the mother, they are not unacceptable and there are safeguards in the orders to ensure that the risks are minimised, such as limiting the children’s time with the father and the parties’ contact with one another.
The Contact Report of 23 July 2017 as noted earlier, is positive in relation to the interactions of the children and the father.
There is a benefit to the children in having a meaningful relationship with the father. This is conceded in the mother’s case by virtue of the orders which she seeks – that is, that there be an order as to time. In circumstances where there is no finding of unacceptable risk of harm, an order for the children to spend time with the father is to be made.
The risk of family violence to the mother is minimised through the parties’ separation and through there being no changeovers where they parties come into contact with one another.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[5] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order and s65DAA applies in circumstances where a parenting order provides for the parents to have equal shared parental responsibility.
[5] See note 1 s61C
It was submitted on behalf of the mother that the presumption of equal shared parental responsibility has been rebutted, but she however, did not seek any orders for parental responsibility at the interim stage.
The father sought an order for equal shared parental responsibility. The making of such an order would trigger the operation of s65DAA.
At this very early stage in the proceedings, the court does not consider that any order for parental responsibility ought to be made, and as such it is the position under the Family Law Act that will prevail.
Conclusion
The absence of discussion of any particular s.60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed[6].
[6] Banks & Banks (2015) FLC 93-637 at [52]
In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 14 September 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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Abuse of Process
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