Doan and Lock

[2020] FamCA 768

FAMILY COURT OF AUSTRALIA

DOAN & LOCK [2020] FamCA 768

FAMILY LAW – CHILDREN – INTERIM – where the trial could not proceed due to unavailability of face-to-face interpreters and because the mother had not filed any material – where the Independent Children’s Lawyer proposed an interim change of residence, supported by the father – where the mother opposed an interim change of residence – orders made for more time with the father.

Evidence Act 1977 (Qld) s 93A
Family Law Act 1975 (Cth) s 60CC, 102NA

Banks & Banks [2015] FamCAFC 36
Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Doan

RESPONDENT: Ms Lock

FILE NUMBER: BRC 10239 of 2012

DATE DELIVERED: 31 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 31 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C Hurley

SOLICITOR FOR THE APPLICANT: Richard Zande & Associates

COUNSEL FOR THE RESPONDENT: Ms A Frizelle

SOLICITOR FOR THE RESPONDENT: HCM Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A Bertone

INDEPENDENT CHILDREN’S LAWYER: Ms T-L Geysen
TLG Law

Orders

1. That the child, X born … 2011 (“the child”) live with the mother.

2. That the child spend time and communicate with the father as follows:

   (a)Every second week from after school Friday (unless Friday is a pupil free day, then from the Thursday prior to that Friday) until return to school Tuesday as follows:

   (i)From after school Thursday, 3 September 2020 until Tuesday, 8 September 2020;

   (ii)Friday, 18 September 2020 until Tuesday, 22 September 2020 (see September/October 2020 holidays below);

   (iii)Friday, 9 October 2020 until Tuesday, 13 October 2020;

   (iv)Friday, 23 October 2020 until Tuesday, 27 October 2020;

   (v)Friday, 6 November 2020 until Tuesday, 10 November 2020;

   (vi)Friday, 20 November 2020 until Tuesday, 24 November 2020; and

   (vii)Friday, 4 December 2020 until Tuesday, 8 December 2020.

   (b)Every second week from Sunday at 4.00pm until return to school Tuesday as follows:

   (i)Sunday, 13 September 2020 until Tuesday, 15 September 2020;

   (ii)Sunday, 18 October 2020 until Tuesday, 20 October 2020;

   (iii)Sunday, 1 November 2020 until Tuesday, 3 November 2020;

   (iv)Sunday, 15 November 2020 until Tuesday, 17 November 2020; and

   (v)Sunday, 29 November 2020 until Tuesday, 1 December 2020.

   (c)For the first half of the September/October 2020 school holidays from Saturday, 19 September 2020 at 10.00am until Saturday, 26 September 2020 at 4.00pm.

   (d)Every second week during the Christmas school holidays in 2020/2021 as follows:

   (i)From Saturday, 19 December 2020 at 10.00am until Christmas Day, 25 December 2020, at 4.00pm;

   (ii)From Saturday, 2 January 2021 at 10.00am until Saturday, 9 January 2021 at 4.00pm; and

   (iii)From Saturday, 16 January 2021 at 10.00am until Saturday, 23 January 2021 at 4.00pm.

   (e)       By telephone with both parents as follows:

   Father

   (i)Between the child and the father each Thursday between 6.00pm and 6.30pm, with the father to make the call to the child and the mother to ensure the child is available to take the call;

   (ii)During the school holidays when the child is not with the father, each Thursday between 6.00pm and 6.30pm, with the father to make the call to the child and the mother to ensure the child is available to take the call;

   Mother

   (i)Between the child and the mother every second Sunday when the child is not with the mother between 6.00pm and 6.30pm, with the mother to make the call to the child and the father to ensure the child is available to take the call;

   (ii)During the school holidays when the child is not with the mother, each Thursday between 6.00pm and 6.30pm with the mother to make the call to the child and the father to ensure the child is available to take the call;

   (f)Anytime the child expresses a wish to speak to either parent then that parent will facilitate the call.

3. That changeover, when not at the child’s school, shall take place at McDonald’s Suburb C (D Street, Suburb C).

4. That both parents are restrained and an injunction issue prohibiting both parents from taking the child to the Police or Department of Child Safety, Youth and Women without first notifying the Independent Children’s Lawyer in writing.

5. That the Independent Children’s Lawyer has liberty to apply.

6. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 27 January 2021 in the Family Court of Australia at Brisbane.

7. That the mother file and serve by no later than 4.00pm on 6 November 2020 her Affidavit material.

8. That the father file and serve by no later than 4.00pm on 27 November 2020 any Affidavit in response.

9. That these proceedings be adjourned for Case Management Hearing at 9.30am on 16 December 2020 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doan & Lock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10239 of 2012

Mr Doan

Applicant

And

Ms Lock

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. Contested parenting proceedings in respect of a little boy called X (also known as Y) born in … 2011 in Australia of his overseas-born parents, the applicant father and the respondent mother have been percolating through the system for some years. Although the parties had final Orders made by consent by Judge Purdon-Sully in the Federal Circuit Court of Australia on 13 July 2016 which provided for X, who then, of course, was five years of age, living with the mother and spending unsupervised time with the father, such Orders having been made in the shadow of allegations that were initially made by the mother in October 2014 of the child being at risk of sexual abuse in the care of the father.  Those earlier final Orders did not prove to be long lasting. 

2. At least within 18 months from on or about 7 January 2017, the mother ceased all time with the father and the father ultimately commenced proceedings in August 2018 in the Federal Circuit Court of Australia.  The matter was transferred to this Court in November 2018.  When the matter first came before Senior Registrar Spink on 17 February 2019 the Senior Registrar ordered a family report and that the parties register with a contact centre as a preliminary step to a likely order for supervised time.  It seems clear that those Orders were made because at that time the mother, who has initially appeared without legal representation, back then had reflected by the Response and her Affidavit and Notice of Risk filed on 14 December 2018 raised very serious concerns about the father and his wife. 

3. During the course of submissions today I drew to Counsel’s attention the nature of the concerns of at least sexual abuse raised by the mother which are significant and which, as I will soon identify, have not been substantiated by any investigation by either the police, the department, nor relevantly, in my view, confirmed by any disclosure of the child to anyone other than what the mother says was her. 

4. Consistent with the cautious approach in such circumstances, the first family report interviews engaged by the hardworking and competent Independent Children’s Lawyer, Ms Geysen, who has been in this matter since then, became somewhat of a non-event because the mother failed to attend for interviews with Ms E.  She also, of course, failed to bring the child to the interviews.  It is a theme of this case, and a troubling one, in my view, that the mother has often failed to comply with Orders and directions.  It is often said that the mother’s inability to do so is shaped by her lack of proficient use of the language of English. 

5. I note, however, as her Counsel confirmed, that the mother has resided in Australia since she was approximately 17 years of age in 1990; that she has undertaken some TAFE training in English; that she has now satisfied the requirements of citizenship in this country and, as such, sponsored the father to come to Australia before they ultimately married in late 2009.  In fact, I think they married before he entered Australia in 2010 and X was born in early 2011. 

6. When the matter came before me previously after there had been a failure by the mother to attend the first reported interviews, as the records will reveal, I was very concerned that time had not commenced.  In fact, the first supervised time as ordered by me did not occur until 29 June 2019, meaning there had been a significant period of time of nearly 18 months where the father had not spent any time with X.  It is, in my view, a tribute to the father’s persistence and love of his son that, even though that he also did not have the benefit of legal advice, he continued to strive to persuade the Court that it was in the child’s best interests that the child spend time with him. 

7. Thankfully Ms E had the benefit of attendance by the mother and X at her report interviews on 19 August 2019 and although then, again, there were difficulties that had occurred, I made Orders on 20 November 2019 advancing the time, but not including overnight time.  Sadly, it seems, that as soon as the Court has - and maybe this is coincidental, only a trial will confirm - advanced the child’s time with the father, there seems to be a further disclosure being made to the mother of abuse. 

8. On 29 February 2020 the mother attended the Suburb G police station late in the evening.  She asserted that the child had been assaulted by the father.  She had also at that time and in remarks to the Department from time to time continued, in a sense, to assert there were unresolved sexual abuse allegations hanging over the father and his wife’s head. 

9. In March 2020 the mother did not attend the B Group changeover.  On 31 March 2020 the child undertook an interview under s 93A, and although he did make some disclosures in those interviews about the father hitting him, the police records which have been tendered in part by the Independent Children’s Lawyer today make it clear that the evidence and assessment of the police was that the offences did not occur and that it was quite highly probable, given the lack of any injury and the fact that certain details of the child’s version appear to be made up, that the mother in some way had influenced the child’s disclosures. 

10. Another factor which has arisen in this case, is that as a result of the father’s decision to re-marry, again, a woman who he met in November 2012, some 18 months post separation from the mother in this case, they have a child, Y, born … 2017.  The child and the child’s mother, that being the father’s wife, form a household which Y has been a part of for these three years and which as a result of Orders I made on 21 May 2020, resulted in overnight unsupervised time for X. 

11. It is a sad fact, that X suggests that he is not feeling entitled to pursue his relationship with Y as his brother because Y is not his brother in some way.  This is inconsistent with earlier remarks he had made at his school.  The father says - and I am not the able to make any finding on an interim basis today - that the unnatural attitude of X to Y stems from X’s mother’s inability to accept the father having re-partnered and having a child by a new lady.  Whilst she may have had every right from her perspective to be upset that the father and her separation when X was four months, and she says after she had supported the father by bringing him to Australia, transferring her emotions, if that is what she has done, onto X so that he cannot enjoy having a brother in this country is very troubling indeed. 

12. The first trial in this matter which I had listed to take place in March had to be adjourned because of COVID-19 restrictions.  Orders I had made in November 2019 for the parties to be funded under the s 102NA scheme have caused the father to be consistently represented by a firm of solicitors in his area.  For reasons I do not know and may never know, the original solicitors retained by the mother who appeared before me for the interim hearing resulting in the Orders of 21 May 2020 did not continue as the solicitors for the mother and approximately 14 days ago, a new solicitor for the mother who is on the record had been retained, and to her credit, has been prepared to continue to represent the mother. 

13. However, therein lies the problem which became apparent this morning.  The Court is inhibited to some degree by the failure of the system to be able to provide to the Court, as I had directed, for this face-to-face hearing today, listed for four days, two separate interpreters in place.  As late as 26 August my chambers was informed that difficulties in securing face-to-face interpreters had been encountered and the best they could do was provide me with an interpreter by phone or video from Victoria. 

14. For this trial with these difficulties, that was not particularly helpful or satisfactory.  Nonetheless, the interpreter was engaged for most of the day, listened to the proceedings and assisted Counsel and solicitor for the mother in communicating with the mother for about an hour and a half earlier today so they could get instructions. 

15. The other impediment to a trial proceeding today was that the mother had filed no material of any substance and certainly not any material which assisted the Court in:

    a)understanding how her family network operates (noting there was no corroborative evidence from either her mother and her sister who apparently resides in the home as well as other persons); and

    b)in a way which is still very confusing to the Court and, as identified by the Independent Children’s Lawyer, seems to continue to assert the father is a risk of sexual abuse to the child, yet made a submission that if there was not a change of residence on an interim basis (as the Independent Children’s Lawyer and the father proposed today) that she would be “happy” in the child spending from after school Friday to before school Tuesday with the father unsupervised each alternate weekend.

    It is very difficult to reconcile the position taken by the mother.

16. For the reasons which I have given, I could not be satisfied that I could conduct the trial on such an important issue as a change of residence without the mother having the opportunity to properly put evidence before the Court. The mother deserves some criticism, in my view (and the Independent Children’s Lawyer goes as far as to say it may amount to a designed “thwarting” of the case) and ultimately these decisions about what is in the best interests of the child, and after some contemplation exchanged with Counsel, Ms Hurley for the father, Ms Frizelle for the mother and Ms Bertone for the Independent Children’s Lawyer, I have formed the view that I cannot proceed with the trial, but that I should consider a variation to the Order made on 21 May 2020 on an interim basis until the matter can be heard. 

17. In respect of the trial, I have so organised by calendar at the start of the 2021 legal year so as to be able to accommodate this trial for three days commencing 27 January 2021.  It will be listed for those days.  Hopefully that will be more than sufficient time for somebody to get me the interpreters I have previously required. 

18. Before passing from that topic, it is a matter of some confusion and concern that the Court is not particularly certain as to what is the mother’s preferred language.  In some material she has talked about a particular language being her preferred language.  However, her two affidavits filed in this Court have been interpreted for her benefit by interpreters.  It may well be that the mother is comfortable in both dialects, but she certainly claims to be uncomfortable in speaking and understanding English to the required standard that I would need to be satisfied that she can understand. 

19. The transcript today will show that the competing proposals in respect of the interim arrangements has been a bit fluid.  The Independent Children’s Lawyer identifies the ongoing concerns of the mother’s behaviour in complying with orders and the mother failing to facilitate the father’s relationship;  making allegations which have not been substantiated to date;  non-compliance with Court orders and failure to prepare properly by giving her retained lawyers a fair opportunity to represent her, that in this regard I pay tribute to Ms Frizelle and her instructing solicitor to be able to get on top of this somewhat difficult matter so quickly, bearing in mind, I am told, their first conference was only last Friday. 

20. The father supported the Independent Children’s Lawyer’s proposal that there should be an interim change of residence today.  Ms Hurley of Counsel adopted, in essence, the submissions made by the more experienced Counsel for the Independent Children’s Lawyer, Ms Bertone.  Ms Hurley herself has only come into the matter recently.  Ms Frizelle’s position on behalf of the mother was that there ought not be a change of residence and, in essence, that the issues of concern are real triable issues and could only be determined the trial, but that the mother was prepared to agree to unsupervised time continuing as the current Orders provide. 

21. I have in this discussion, I think, adequately dealt with what are the agreed and not agreed facts, what are the criteria identified by the Full Court in Goode & Goode [2006] FamCA 1346.  I am also required, of course, being an interim hearing, to take guidance from the Full Court’s decision in Banks & Banks [2015] FamCAFC 36 which clearly identifies that, on an interim hearing, the Court is not required to laboriously go through the s 60CC(2) and s 60CC(3) factors, but to concentrate on what are the significant factors on an interim determination. It is also relevant to say, in my view, that any decision today is to be within the context of the, again, early trial dates I have given this matter, which is as much as I can offer in my docket at the time of the start of the next school year.

22. The best interests of X are the paramount consideration but not the only consideration.  There are number of triable issues which, now that the mother has had the benefit of her Counsel and solicitor hearing some of my concerns, will, no doubt, reflect somehow in the Affidavit material she relies upon.  Hopefully she will support the lawyers appointed under the scheme and provide them with the information they require to put her best case forward.  It is unlikely I will be able to be as understanding again of the mother’s lack of preparedness for a trial if she does not do so, and there would be no guarantee that the mother would get further funding under s 102NA if this lawyer, prepared to take on her case under the scheme, was no longer to be appearing for her. 

23. There are a number of competing concerns that I have had to weigh up today.  Clearly it is a benefit, in my view, to X that he have a meaningful relationship with his father.  He is primarily attached to his mother who has been a dedicated parent, although, as Ms E in her report indicates, that perhaps in the somewhat enmeshed relationship, a possessory parent.  The mother’s household does not provide the child with many opportunities for socialisation outside of the household.  The father offers, he says, great opportunities in that regard, including sport and other activities. 

1. There are risks in the mother’s household that have been identified in the material that will need to be the subject of determination unless there is some resolution satisfactory to the Court.  Whether these are shaped by the mother’s disappointment or anger as the material of the father suggests she has demonstrated in the father taking up with the new relationship quickly after the separation I do not know.  However, one of the concerns that has been raised in the material previously, and brought to my attention by the Independent Children’s Lawyer, is the lack of attendance by the child at school which has had multiple effects, including impeding his education development and preventing him from having the normal social and peer relationships which school offer children like this at this age. 

2. The school reports and attendance records, which the Independent Children’s Lawyer has tendered via Exhibit 2 today, identify an improved attendance at school (certainly not perfect but improved) and although he may not be getting A grades in his subjects, there is pleasing recognition of his effort in the school reports and apparent improvement in some of his areas.  It seems at least one of the issues the Court will need to consider at the trial is about which household is better able to support his education. 

3. As we know, the mother has been in this country for 30 years; does not speak English fluently, and it is uncertain whether other members of her household do.  This will continue to be a challenge for this mother in the household as the child’s education and development continues.  The father’s first language is different to that of the mother, but his English appears to be better.  The Independent Children’s Lawyer raises as a significant risk the emotional and psychological harm to the child with the mother continuing to make the allegation she does against the father, restricting time, taking the child to police late at night and other occasions, and sometimes associated with Court events. 

4. I share, without evidence from the mother yet having been provided, those concerns, and I expect them to be dealt with in her material.  They are, however, the concerns which encourage me to support, as I already indicated, a proposal of the Independent Children’s Lawyer that an injunction issue and the parties be retrained from taking the child to Queensland Police or the Department of Child Safety, Youth and Women offices without prior notice to the Independent Children’s Lawyer.  The Independent Children’s Lawyer will have liberty to apply.  Either party should be very cautious about engaging with the Department or police without appropriate evidence. 

5. It became apparent during my exchange with Counsel that a change of residence to the father, even with some uncertainties in his household relating to transport and the like, would have provided some challenges to his household in being able to continue to support the child attending the Suburb H State School.  Whilst I accept, as the Independent Children’s Lawyer submits, that I should not place concerns about schooling higher than the child’s emotional and physical well-being, they are, for this child, a very real issue.  In circumstances where the mother doesn’t say that the father’s care of the child requires to be supervised, one really wonders, as a triable issue, what are the risks in the father’s household. 

6. For this boy who has spent much of his school life, remembering he is only in grade 4 this year, often not attending regularly or late; struggling to meet age-appropriate levels in both literacy and numeracy; not having any outside socialisation activities such that he has to rely, it would seem, almost entirely on his school to offer it, in the conflict that has engulfed his parents, school offers, in my view, a sanctuary and stability for this little boy. 

7. If there was to be a change of residence, ideally it would not occur midway through a school year and certainly before the joys which most young children seem to be engaged in in the final school term, including celebrations of end of year activities and the like.  It is reasonable to infer that, to the extent he has made peer friendships, as is likely to be the case, they are all at school and they would not wish to withdraw him from school for that reason unless a change of residence was ordered.  As a result, I put to the parties the alternate proposals to those identified by the parties to me.  The intent of the proposal was:

   a)to maximise the opportunity for the child to spend time with the father; and

   b)to take into account of the father’s work situation which, although claimed to be “flexible”, seemed to be less flexible than the word “flexible” might have suggested. 

8. He currently works Tuesday, Wednesday, Thursday and Friday.  He says he is able to drop the child to school at Suburb H State School if he continues to go there.  Collecting him from school will be a real issue because: 

   a)he is not available most afternoons to do so except Monday;

   b)his wife would be able to collect the child but she only has a learner’s permit to drive a car and would not be able to be accompanied by anyone to collect that child, which is apparently an approximate 20-minute journey by car from where he lives to Suburb H; and

   c)that leaves open that the only opportunity to get back after school, perhaps after a long school day for this little boy, is by public transport, a combination perhaps of trains and buses and walking. 

9. The person that will be accompanying him from school, even if after school care is available - and I have no difficulty with working parents having to take advantage of after school care - would involve the father’s wife, in the company of three year old Y (collected at 2.45pm in the afternoon from his day care); walking from Y’s day care to Suburb J station; catching some form of public transport, which might be a combination of train and buses, to Suburb H station; walking from Suburb H to Suburb H State School, collecting the child, walking back and doing the reverse journey. 

10. This seems a very arduous journey and one which I can understand the father says should be avoided, effectively, and that can be done by changing X’s school.  I would not want to put the child through that journey unless I had to, and I think the risks of him losing momentum in his school and his social relationships balance, in my view, in favour of retaining the mother as the primary carer, but with the father having significantly more time than he currently enjoys. 

11. In this regard, if there is to be a growing development of the child relationship with the father’s chosen wife and their little boy Y, then the avenue to that relationship is through X having renewed confidence in and more time with his father.  There seems to be no reason why the father on his work schedule would not be able to achieve the majority, if not perhaps even all of the required journeys, from Suburb H to Suburb J.  He would only need to get off work earlier every second Friday because he can do the mornings. 

12. So, for these reasons, I propose in a finely balanced case and one in which the Independent Children’s Lawyer and the father’s lawyer make some very considered and appropriate submissions, that on an interim basis that the child will continue to live with the mother.  The father’s time will be after school Friday to before school Tuesday one week and 4.00pm Sunday to before school Tuesday.

13. For these reasons I find that the interim orders which appear at the commencement of these reasons are in the child’s best interests.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 31 August 2020.

Associate: 

Date:  14 September 2020