Doan & Lock (No. 3)
[2021] FamCA 190
•14 April 2021
FAMILY COURT OF AUSTRALIA
Doan & Lock (No. 3) [2021] FamCA 190
File number(s): BRC 10239 of 2012 Judgment of: BAUMANN J Date of judgment: 14 April 2021 Catchwords: FAMILY LAW – CHILDREN – Contested residence – Orders made for the child to live with the father and spend time with the mother after a moratorium of time Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 102NA Cases cited: Doan & Lock [2020] FamCA 768
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Number of paragraphs: 73 Date of last submissions: 12 February 2021 Date of hearing: 27-28 January 2021 Place: Brisbane Counsel for the Applicant: Ms C Hurley Solicitor for the Applicant: Richard Zande & Associates Respondent: Self-represented Counsel for the Independent Children's Lawyer: Ms A Bertone Solicitor for the Independent Children's Lawyer: TLG Law ORDERS
BRC 10239 of 2012 BETWEEN: MR DOAN
Applicant
AND: MS LOCK
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
14 APRIL 2021
THE COURT ORDERS:
1.That all previous Orders and parenting plans are discharged.
Parental responsibility
2.That the father have sole parental responsibility in respect of all major long term issues of the child, X “Y” DOAN born … 2011 (“the child”) and shall inform the mother of decisions made relating to major long term issues.
Lives with
3.That the child shall live with the father from this day.
Spends time with
4.That the child shall spend time with the mother as agreed between the parents but at least as follows:
(a)for a period of three (3) months, no time:
(b)thereafter for a period of six (6) months for two (2) hours each fortnight at B Group with the mother to meet the costs of the contact centre; and
(c)thereafter every second Saturday or Sunday from 10.00am until 4.00pm with changeover to take place at B Group with the mother to meet the costs of the changeover.
5.That when supervised contact commences the child shall spend time and communicate with the mother by telephone weekly on a Wednesday between 6.00pm and 7.00pm.
Therapeutic support
6.That the father shall engage the child in a form of therapeutic support, whether funded through a mental health plan or otherwise, to support the child through the transition in residence.
7.That the father has leave to provide a copy of the family report of Ms E dated 22 June 2020 and a copy of the Reasons for Judgment dated 14 April 2021 to any counsellor who the father chooses to provide therapeutic support to the child.
Exchange of information
8.That each party will keep the other informed of their mailing address, email address and mobile telephone number and advise the other of any change seven (7) days prior to the change.
9.That this Order is authority for the mother to obtain information about the child’s education including copies of the child’s school reports and photographs at her cost.
Other
10.That the father shall refer to the child as “Y” rather than “X”.
11.That pursuant to s 68B of the Family Law Act 1975 the mother is restrained and an injunction issues restraining the mother from approaching the child at school or removing the child from school or from the father’s primary care.
12.That neither party shall physically discipline the child nor permit any other person to do so.
13.That neither party is permitted to take the child to Police or the Department of Children, Youth Justice and Multicultural Affairs or to any other organisation without the prior written consent of the other party or Order of the Court.
14.That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
15.That the Independent Children’s Lawyer be discharged after sixty (60) days from the date of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
These parenting proceedings involving a boy, now aged 10, who is registered under the Christian name of X, but who I will call for these Reasons Y, have been ongoing for most of his life where his parents separated in May 2011. As the Reasons set out, the matter has been made more difficult by the inability of the mother to consistently engage, not only with publicly-funded lawyers provided to her but also in the process generally. At the conclusion of the hearing of evidence in this matter on 28 January 2021, and after oral submissions had been made by Counsel for the Independent Children’s Lawyer (“ICL”) Ms Bertone, supported entirely by Counsel for the father Ms Hurley, the Court was concerned about how the unrepresented mother would be given the opportunity to provide submissions. This issue came into sharp focus in the context of the mother’s reluctance to engage in the proceedings generally.
As a result, the following directions were made on 28 January 2021:
1.That the Independent Children’s Lawyer shall file and serve written submissions by no later than 4.00pm on 5 February 2021.
2.That the father shall file and serve written submissions by no later than 4.00pm on 12 February 2021.
3.That the parties advise the Associate to the Honourable Justice Baumann (…@familycourt.gov.au) the time it will take for Legal Aid Queensland to translate the submissions on the basis that both sets of submissions will be available by 12 February 2021.
4.That the mother has two (2) weeks from the date of production to the mother of the translation to either produce a written reply or, at her election, seek to provide an oral response and if the mother chooses to give an oral response, an interpreter will be made available on a date to be fixed.
On 1 March 2021, a translation of written submissions were posted to the mother for her response. Under the directions she was given 14 days to respond or seek to make oral submissions (with the assistance of an interpreter). She has, as at 9 April 2021, done neither.
Accordingly, the Reasons now published are based on the evidence offered to the Court, where the central dispute is whether Y should live with the mother, as he has since separation, or would live with the father.
DIFFICULTY IN CASE MANAGEMENT AND HEARING
It is worth recording the difficulties faced by the Court in seeking to have this matter dealt with. The parents had the benefit of an Order made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) that provided them with a lawyer for the purpose of cross-examination. The mother previously had a lawyer funded by Legal Aid, who was experienced in family law, who withdrew on the record in April 2020. The lawyer appointed under the scheme, Ms Marunda, came onto the record on 31 July 2020, and her affidavit filed, at the direction of the Court, on 16 December 2020, identified the difficulties she was having in obtaining instructions from the mother.
As this matter required determination and had been listed already on one occasion previously, the matter proceeded to trial on 27 January 2021. The mother did not comply with directions to produce further trial material, however, the Court had read and has considered not only her affidavits filed on 14 December 2018 and 20 May 2020 but gave the mother the opportunity to, effectively, make a statement under oath on the second day of the hearing. When the trial was called on to commence at 10.00am on 27 January 2021, the mother was represented by the retained solicitor and Counsel, Ms Frizelle. After making some observations about the lack of material from the mother, the lack of a case outline and, really, any indication of what the mother’s current position was, the matter was stood down.
After a period, Ms Frizelle sought leave of the Court to withdraw. It was clear that she could not get instructions from the mother. In that respect, interpreters had been ordered by the Court. Unfortunately, the only interpreters fluent in the language available, one for the mother and one for the father, were coming by video from interstate. Surprisingly, there was no interpreter available in Brisbane for the trial despite having been ordered many weeks earlier. The interpreter who had been arranged for the mother was used by the mother’s solicitors to try to communicate with the mother and to obtain instructions, but, as the record indicates, they were unable to do so. It was, in the view of the Court and in the best interests of the child, Y, that the trial proceed as best it could.
It was not ideal, but as the history reveals, the mother has, on more than one occasion, failed to engage, which has caused enormous delays in the matter and difficulties in the ongoing relationship between the father and the child. Having case managed the matter for some time now, it was in my view, in the best interests of the child, for the case to proceed but to give the mother every reasonable opportunity to put her case. I believe that was achieved, although the mother, both to this Court and to police officers, has complained about being disengaged from the system; feeling oppressed by the system and being the subject of collusion and conspiracy by lawyers for the father, the Independent Children’s Lawyer (“ICL”) and, as I understand it, the attitude of the Court. Her criticisms have also been directed to interpreters.
COMPETING PROPOSALS
As a result of directions made, the ICL was required to provide written submissions (which have been translated) and a minute of final order. The ICL’s minute of final order is Appendix One to these Reasons. It provides, essentially, for the father to have sole parental responsibility for the child; for the child to live with him and for the time the child spends with the mother to be limited, after a period of four months, to two hours each fortnight supervised. The ICL proposes that after 16 such visits, the child spend time with the mother every second Saturday or Sunday from 10.00am until 4.00pm. It is clear that this proposal is a significant change from the current arrangements.
The father, by a submission filed on 12 February 2021, merely says that he adopts and concurs with the outline of submissions filed by the ICL and adopts the recommendations. The submission filed on behalf of the Applicant father says: “As a result of the proceedings, the Applicant Father undertakes to refer to the child as “Y” rather than “X””.
As indicated in the commencement of these Reasons, the mother has chosen not to make any written submissions at all.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Act and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
… when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
CHRONOLOGY
Statements of fact hereafter should be construed as findings of fact.
Although no specific submission as to credit was made, I do acknowledge that in this case, where both the mother and father gave evidence with the benefit of an interpreter, who was appearing by Microsoft Teams from another state, there is the risk that some of their words could have been misconstrued, however, with the benefit of the family reports that have been produced, there has been some consistent attitudes to these parenting proceedings which permeate this matter. I would not harshly criticise the words the mother used where English was not her first language and where the mother felt quite uncomfortable in the process.
I should record that for the whole of the Court hearing she was joined by her sister who lives with her. Her sister did not address the Court directly, but on many occasions, even when, for example, there seemed to be some frustration expressed by the interpreter for the mother to get the mother to focus on the question so that an answer could be relayed and translated to the Court, her sister sought her to calm down and to keep her answers brief. The mother found it difficult to do so. On balance, I felt both the mother and father (who were the only witnesses cross-examined save for the father’s current wife and the report writer, Ms E) did their best to be honest and to tell the Court what they thought was true.
The mother is 48 years of age and moved to Australia in 1990 at the age of 18 years. It is an issue that the mother feels unable to explain, adequately, in my view, that her English has not improved despite being in this country for 30 years. The father was born in a south-east Asian country, as was the mother, and he is two years younger than the mother. The parties were married in 2009 in the south-east Asian country. It is clear, on the evidence, that the mother sponsored the father to come into Australia. The fact that she sponsored him and the marriage broke down so quickly thereafter has caused the mother to express the father’s actions as he “abandoning her”. She clearly feels that he did the wrong thing.
When the mother arrived in Australia, she attended TAFE on and off for two years to speak English but has taken no other steps since then. The child was born in 2011, and the parties separated, sadly, some four months later in May 2011. The father had only been in Australia for two years by the time of separation. The father expressed some difficulty in seeing his son post separation other than on the mother’s terms, and so in July 2013, the father commenced proceedings in the Federal Circuit Court of Australia. In October 2014, an allegation was made that the father had sexually abused the child, who at that stage was three years of age.
When the matter came before a judge of the Federal Circuit Court of Australia in July 2016, she ordered that the child live with the mother and the father, by that stage, have unsupervised time, the issue of sexual allegations not being satisfactorily resolved in a way to the mother’s mind, but resolved enough for the Federal Circuit Court of Australia Judge to not regard the father as an unacceptable risk and to make final orders in these terms:
Parental responsibility
1.That the parents have equal shared parental responsibility for the child X born in 2011 (“the child”).
Lives with
2.That the child shall live with the mother.
Spends time with
3.That the child shall spend time with the father at all times agreed between the parties and at least as follows:
a.Weekends and week days:
i.Commencing term 2 in 2016 every second weekend from Saturday 9am until Sunday 5pm commencing 16/7/2016;
ii.Commencing term 2 in 2016 every second Wednesday from 5.30pm to 8pm commencing 20/7/2016; and
iii.Commencing term 1 in 2017 every second Wednesday from 5pm to Thursday 7.30am.
b.Holidays:
i.Until the child commences year 1 in 2017, for four (4) nights between Monday and Friday for the Autumn, Winter and Spring gazetted holidays and for three periods of five (5) days during the Christmas 2016/2017 and 2017/2018 gazetted holidays, provided they not occur in consecutive weeks;
ii.Upon the child commencing year 1 in 2017, for the first half of all Autumn, June/July and September/October school holidays in even numbered years;
iii.Upon the child commencing year 1 in 2017, for the second half of all Autumn, June/July and September/October school holidays in odd numbered years;
iv.For the purpose of the Autumn, June/July and September/October holidays, the first half shall commence on the first Saturday of the holidays at 10.00am until the second Saturday of the holidays at 10.00am and the second half shall commence on the second Saturday at 10.00am until the last Saturday of the holidays at 10.00am;
v.That weekends after the holidays shall recommence as if the holidays did not take place;
vi.The first half of the Christmas school holidays commencing 2019 in even numbered years and for the purpose of the Christmas holidays the first half commences the first Saturday at 10.00am until the fourth (4th) Saturday at 10.00am and the second half commences the fourth (4th) Saturday at 10.00am and concludes the last Saturday at 10.00am; and
vii.For periods of five (5) nights or more, the father must provide a signed letter from his employer he has approved leave for his scheduled time with the child.
c.Special occasions:
i.From 2.00pm on Christmas Eve Day 2.00pm until 2pm Christmas Day in even numbered years and from 2.00pm Christmas Day until 2.00pm on Boxing Day in odd numbered years;
ii.If Father’s Day or Mother’s Day falls on a weekend when the child is not already spending time with the relevant parent, then the child will spend time with that parent from 5:00 p.m. on the Saturday before the day until 5:00 p.m. on that day; and
iii.On the child's birthday the child will spend time with the parent that they are not then living with for a minimum of three (3) hours if the birthday falls on a school day and a minimum of four (4) hours if the birthday falls on a non-school day.
Telephone Communication
4.That each parent is at liberty to telephone the child each Monday, Wednesday and Friday between 6.00pm and 7.00pm when the child is not in their care.
Changeovers
5.That changeover will occur as follows:
a.At the beginning of each visit with the father, the father will collect the child from the mother’s residence;
b.At the conclusion of each visit with the father, the mother will collect the child from the father’s residence save that the father will return the child to the mother at the conclusion of visits on Thursdays; and
c.For the alternate Wednesdays the father will be responsible for all changeovers.
Exchange of information
6.That the parents shall each notify the other in writing of any change in their contact details, within two (2) days of such change taking place.
7.That within two (2) weeks of the date of these orders, the mother provide to the father the contact details of the child’s childcare, school, doctor, and psychologist that the child has attended.
8.That each parent shall ensure that the other parent is notified of any serious illness, injury, medical or like emergency suffered by the child as soon as reasonably possible, such notification to include the name, address and telephone number of the relevant hospital or medical practitioner.
9.That each parent shall keep the other informed of the child’s health and any health issues including any medication prescribed for the child and provide the medication and appropriate instructions for its administration at the time of any handover.
10.That these Orders shall be sufficient authority for each parent to obtain from the child’s medical practitioner, or counsellor any information or report regarding the child’s health, upon the request and at the cost of that parent requiring the information.
11.That these Orders shall be sufficient authority for each parent to obtain from the child’s school any information and documentation regarding the child’s progress at school including school reports, newsletters and school photographs upon the request and at the cost of the requesting parent.
12.That these Orders shall be sufficient authority for each parent to obtain from the child’s sporting and other associations any information and documentation regarding the child.
13.That each parent shall be at liberty to attend any and all school, sporting or social functions associated with the child that a parent would normally be entitled to attend.
14.That each parent is entitled to attend all of the child's future school functions and events including any that require parent participation.
General
15.That each parent shall refrain from making critical or derogatory remarks about the other or members of the other’s family in the presence or within the hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of the other’s family in the presence or within the hearing of any of the child.
Culture
16.That when the child reaches school age, he will be enrolled in language lessons.
Dispute Resolution
17.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
a.either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney- General; or
b.participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
The father remarried in 2016 to a younger lady. She arrived in Australia, it seems, in or about October 2017. At that stage, a child of the father and his new wife, Z, had been born in 2017. These proceedings were commenced again in August 2018 after the mother ceased all time between the father and the child in January 2018 not long after the father’s new wife arrived in Australia.
In November 2018, the matter was transferred to the Family Court of Australia. The ICL, who has very consistently and persistently engaged in this difficult matter with significant communication challenges offered by the parties (who often were unrepresented) arranged for experienced social worker, Ms E, to prepare her first family report. The mother failed to attend the interviews and failed to provide the child. Essentially, the report cost was wasted. This occurred in February 2019 and when the matter came before the Registrar in April 2019, the Registrar ordered the father’s time recommence but supervised – a period of over 15 months having elapsed.
From May 2019 the matter began to be case managed by me because the mother failed to comply with the supervised Order. Thankfully, the first supervised visit for the child with the father occurred on 29 June 2019 after a period of over 18 months without any time at all. In August 2019, Ms E had further interviews, where the mother did attend, and prepared her second family report, which was filed in the Court and has been considered by the Court. On 20 November 2019, the Court made further Orders which increased the amount of time the child would spend with the father and made Orders for the parties to have the benefit of the cross-examination scheme created by s 102NA of the Act.
After the matter had been before the Court on or about 31 March 2020 in around that time the mother asserted the child had been, again, abused by the father, and, on 31 March 2020, the child submitted to an interview with police. The tape of that interview has been inspected and viewed by the Court. On 21 May 2020, the Court ordered the father’s time with the child to proceed unsupervised and listed the matter for trial on 31 August 2020. A third family report interview took place on 8 June 2020, again with Ms E. It is that final report dated 22 June 2020 which provides the ultimate analysis, through the longitudinal assessment undertaken by the report writer, about what, in the report writer’s view, is in the child’s best interests.
On 10 August 2020, the Department were required to undertake investigations as a result of a complaint raised with them. This caused the Court on 31 August 2020, for Reasons published (see Doan & Lock [2020] FamCA 768), to adjourn the trial. The trial listed to proceed that day could not proceed, and the said Reasons explain why the Court was not prepared, on the Application of the ICL, to change residence that day but why the Court was prepared to increase the time the child spent with the father, to include overnight time. Those Reasons are relied upon, not only to reveal why the Orders were made at the time but because they provided a direction, in a sense, to the mother as to the evidence the Court would expect to get from her at the time that the matter was then listed for trial on 27 January 2021.
The Orders made 31 August 2020 included two one week periods of block time between Y and the father, the first such holiday time that had occurred in the child’s life. As earlier indicated, on 27 January 2021 the matter was listed to proceed to trial and did proceed to trial over two days.
THE FAMILY REPORT WRITER
I set out in these Reasons the ultimate evaluation of the report writer, Ms E, set out at paragraphs 57 to 68 of the family report dated 22 June 2020, as follows:
57. The dynamics with this family have not altered.
58.Mr Doan has continued an unyielding commitment to his relationship with Y. Regarding Court processes, he has done everything asked of him.
59.Ms Lock’s views are unchanged. She cannot see any way forward other than to terminate Y’s contact with his father’s household entirely. She insists that Y needs to be ‘rescued’ or he will ‘go crazy.’
60.I do not see a means of assisting her to gain insight into either her own behaviour or that of Y. It is clear that her solicitor has tried – and she is now being perceived as on the other side. Ms Lock’s family are just as deeply entrenched in this view of Mr Doan as she is.
61.Y’s beliefs about his father’s ill-intentions towards him continue unabated.
62.The only changes have been in actions. Y has been visiting on weekends now.
63.It is my view that Y is torn. On the one hand, he speaks endlessly about hating his father’s family and he invests reasons for this. When one fails, he moves on to another. Mr Doan’s account indicates that he can play happily at times but he can also be truculent when he is not the centre of attention. In my opinion, it seems as though he has a good time there when he ‘forgets’ his mission. While I generally hold reservations about placing weight on ‘happy photographs,’ I am prepared to make an exception here. Y can be seen enjoying playing and enjoying eating.
64.The Court is faced with a difficult and grim decision about where Y lives.
65.I hold major concerns for Y’s well-being if he remains living with his mother and having no contact with his father – which will almost certainly happen sometime after the Court is no longer involved.
66.On the face of it, this symbiotic relationship between mother and son has unhealthy dimensions, both emotionally and socially. They live in a cloistered environment, supporting magical beliefs and seemingly with very little outside social contact. There was a history of Y’s poor school attendance although Ms Lock seems to have redressed this for now. When Y reaches adolescence, there is a strong likelihood that he will either retreat into deeper dependency on his mother or he will rebel without the necessary social and emotional developmental abilities to help ground him.
67.I have noted in my previous Report that Mr Doan has a much more rounded view of children’s needs and he would strive to provide an environment in which Y thrives along all dimensions.
68.I have also previously noted concern about the massive trauma Y would suffer emotionally if he were removed from his mother’s primary care. My concerns about this have not altered except to say, as foreshadowed, that such a transition would be slightly easier now that he has begun weekend visits.
Ms E was the subject of cross-examination at the trial. The evidence of Ms E under cross-examination included the following further evidence:
(a)it would be appropriate, in Ms E’s view, if a change of residence was ordered, for there to be a moratorium so as to allow the child to bond with the father and the stepmother and to allow him to adjust to a new school;
(b)it would be appropriate for the child to undertake some counselling at the time of the change of residence;
(c)it is important for the child to believe and know that he will see his mother again during the moratorium as he is likely to be distressed by the change of such significance coupled, as it would be, with the moratorium of time. Ms E indicated that she felt it would be important once time resumes for it to commence for a supervised period to ensure that the mother only speaks about child focused issues when with the mother; and
(d)if the child remains living with the mother then the child should spend four to five nights per fortnight with the father plus holiday time. Ms E, when made aware that holiday time had progressed satisfactorily, indicated some comfort with the fact that that would make it easier for Y to adjust to a change of primary residence. Ms E indicated that, from her perspective, the issue is about the long term wellbeing of Y so that any initial trauma, which there is likely to be, has to be accepted for what it is and has a consequence of a long term benefit to the child.
The mother was given an opportunity to ask Ms E questions. The mother used the opportunity to merely make statements such as:
(a)it is not possible for a stepmother to love a child like a mother;
(b)twice she has attended on Ms E without an interpreter and that has not been fair; and
(c)Ms E incorrectly got the statements in the report that it was an “arranged marriage” wrong as the mother knew the father in her home country.
When pressed about the criticisms of the mother in the family report, Ms E said that it was her opinion that Y has been told by his mother and family to hate his father and his father’s family and that he is unable to keep the charade up such that it is quite consistent with the father’s evidence that when the child is with the father he is happy to be there. Ms E expressed, in response to the mother’s questioning, that there were significant emotional risks for Y if he remains in the mother’s care as, in her view, it is inevitable that the relationship with the father will break down again and the fears that he is expressing of his father, without any apparent foundation, will make it difficult for the child to ever spend time with the father in the future.
Ms E also opined that the child, Y, would carry some risk socially and emotionally if he grows up believing his father is a monster and there is no one in the world to trust except his mother and her family. This could manifest in a difficulty for him forming adult relationships.
The Court is not bound by the opinions of a family report writer (see Hall & Hall (1979) FLC 90-713), however, where the report writer has, now over at least two separate reports, had the opportunity to spend significant time with the parties and to form a view and the facts upon which the view are supported are established by the evidence before the Court, then, it is appropriate, as in this case, for weight to be given to the family report.
Before I deal with a discussion of the relevant primary and additional considerations in this case, I think it would be helpful to at least identify how I see, on the evidence, the competing households offered by the parties to the Court in respect of the best option for the future primary care of Y.
THE MOTHER’S HOUSEHOLD
The history of this matter reveals, and I am satisfied on the evidence, that the mother finds it difficult to support, encourage and promote Y having a relationship with his father. It is impossible to know, where the mother provides no evidence from any other member of her household despite a desire for that expressed in earlier Reasons, whether the view the mother has in relation to the father is one shared by the grandmother and sister who reside in the home with the mother. The evidence of Ms E is that there is a degree of enmeshment in the relationship between the child and the mother. I accept that assessment.
Furthermore, it seems that the child, apart from attending school, lives a fairly isolated lifestyle. The mother has shown no capacity to support the child engaging in out of school activities, sport or music. In my view, the psychological risks to the child include encouraging him to make complaints about the father where there has been no established factual foundation. I will deal with these matters next when talking about the father’s household. I also find that the mother’s attitude to the father’s new child, Z, permeated into Y feeling he had to “hate” his new little brother.
I am satisfied, on all the evidence, that this was a position taken by the mother and one adopted initially by the child until he has reached the stage of being more comfortable with his little brother and, in fact, as the father expresses and I accept, takes steps to protect him. The mother could not adequately explain why it would be contrary to Y’s best interests, in a country where he has few relations, to not form a relationship with his sibling, Z.
The evidence suggests that the mother has at times found it difficult to ensure the child attends school. There is evidence that suggests the mother has at times been in conflict with the school.
Y’s level of English is well below his year level and that may be attributable to the fact that in the mother’s household English is not the first spoken language. Whilst it may be a benefit for Y, ultimately, to be able to speak English, Cantonese and Vietnamese, the mother’s lack of English and no apparent desire to improve it, is likely to make Y studying and integrating with the wider community a little more difficult from her household.
THE FATHER’S HOUSEHOLD
At the forefront of the concerns the mother has is that the father has been sexually and physically abusive of the child, Y. Entirely, her concerns are based on what she says Y has told her. Y has repeated these comments to police, including most recently, in relation to the “Variety store” incident, in a s 93A interview. Y has expressed to the report writer some very serious concerns about the father, including adopting the mother’s mantra that the father has magical powers, is a bad person and will do him harm. The evidence produced by the ICL and tendered in this Court does not substantiate any physical or sexual abuse upon the child by the father.
Sadly, and seemingly with the view, at least to some degree, of attacking the father’s new wife, some of the allegations made by the mother became very serious. They included that the father and his new wife would have sex in front of the child; that the child was required to place his penis into the father’s new wife’s mouth; the child was required to lick the new wife’s vagina and to put her breasts in his mouth. I reject that any of these events occurred at all. Seemingly, concerned that the more extreme statements about risk had not been supported by either the police or the Department, when the mother was given an opportunity to give some evidence in chief, after spending the night preparing her statement, she did raise other allegations.
To express them is to invite the observation, which I make, that the mother was looking for things to criticise the father about. Apart from the concerns she raised of the sexual and physical abuse, the matters referred to in her evidence in chief delivered in her own words on 28 January 2020 included that:
(a)the father makes the child wash dishes;
(b)the father makes the child do gardening;
(c)the father has made the child mow the lawn;
(d)the child gets bruising because the father does not supervise him correctly;
(e)the father makes the child watch action movies “all night” and would, in fact, wake him up in the middle of the night and keep him awake to watch the action movies so that he “fell asleep at school and slept on the school floor”. This is said to have happened many times;
(f)the father tells the son to lie to the mother about being punched by the father;
(g)the father has made him climb walls;
(h)the father takes him to school late;
(i)the father did not supervise him properly in the school car park such that he nearly got ran over by a car;
(j)the father pretends to the child to be nice to him and to pay him pocket money, but then the father’s wife tricks him into giving her the money which she used to buy food for herself and “her kid”;
(k)the father has asked him to carry bricks which were too heavy and he did not want to;
(l)the father made the child drink an “energy drink” which he knew the child was not old enough to drink and where the child had asked for a “soft drink” which was refused. At this time, it is alleged by the mother that the father’s wife held the child down and poured the energy drink into his mouth; and
(m)the father does not feed the child enough food, and ended that statement with the following words: “why are they so mean?” and that the father’s heart “is like a poisonous snake”.
The father was given the opportunity to give his response to these allegations made for the first time by the mother in this form on 28 January. His responses, in my view, were reasonable, sensible and I accept them.
In essence, the father says in relation to some of the “chores” around the house as he was trying to get the child to take some responsibility. He denied waking him up in the middle of the night. He says there are times where the child does not want to do something, but that he encourages him to do outdoor activities and the like. The father confirmed that he gives the child money, even though at times the child does not want to do any chore for it, because he sees this as a way of encouraging the child to develop good habits, namely, to do chores and to be rewarded. He denies that Y is underweight and has not been fed properly.
The father’s wife was also re-called to give her explanation for the alleged dispute that occurred in relation to the $10 note. The wife indicates that Y likes to drink soft drink and milk, and to eat fried food, but they try to restrict these things because they believe it is not good for him. As to the “energy drink”, she indicated that the father had brought home some “Red Bulls” for the father to drink, but at no time did she, as the mother alleges, lay on top of the child, open his mouth and pour the drink into his mouth. I am not satisfied on all the evidence that the father’s home, his lifestyle, his attitude to parenting or that of his wife present any unacceptable risk at all to the child.
The father works full time and his wife works at a local shop a few hours per week. She is committed to learning English and to getting her driver’s licence. There is no evidence to suggest that the care of their child Z is in any way compromised. The father indicates he wants to encourage Y to obtain the best education he can and to do that he needs to continue to improve his English and to study hard. The father gave me the strong impression that he saw part of the child’s future as improving his education, and in that way, improving his job prospects as he got older. On the evidence of the mother, I did not obtain the same comfort that she held a similar view.
In my view, the father’s household provides a more balanced household, on the evidence, than does the mother’s. In saying that, I accept that the mother, although given the opportunity to adduce evidence, has really produced no evidence about how her house operates; how the child gets to or from anywhere and, importantly; how he interacts with the other members of the household, who seem to be the mother’s mother, the mother’s sister and the older cousin and nephew, being the child of the mother’s sister. I shall now deal with, in a narrative fashion, the primary and secondary considerations next.
PRIMARY CONSIDERATIONS
In my view, it is in the best interests of Y that he does have a meaningful relationship, and he would benefit from a meaningful relationship, with each of his mother and father. On the evidence the Court has heard, there is a very real prospect that, if the child continues to live with the mother, he will not be able to form the beneficial, meaningful relationship with his father he deserves. If the child primarily lives with the father, then there is an opportunity for him to maintain his relationship and attachment with his mother, into the future, but much of that will depend on how the mother will adjust to a change of residence. I feel compelled to record that I have some concerns that she will not adjust well.
The Court is required to give greater weight to the prospects of the child being exposed to risk, neglect and abuse than the benefits to the child of having a meaningful relationship with the parents. In my assessment of the two households, I have identified and made findings about the identified issues as best I can on the evidence. In my view, there are significantly greater risks to the child’s emotional and psychological wellbeing in the mother’s home than there are in the father’s home and, further, in my view, there are no risks towards the child physically in the father’s home, as the mother asserts.
ADDITIONAL CONSIDERATIONS
Y currently attends the Suburb H State School, has always lived with his mother and has, on more than one occasion, continued to express a desire to keep living with his mother. At paragraphs 37, 38 and 40 of the family report, Y told Ms E words to the effect, “Please don’t make me got to his house”, “I hate him so much. He always does that. If I go to my father’s home, I will be passed away, I will be dead” and “My heart is breaking when I am there. I just can’t stay there anymore” (italics removed).
To be fair, these comments were made before, as I am satisfied has occurred, the child spent more significant overnight time with the father as the result of my Orders and including two blocks of one week with the father over the Christmas 2020-21 school holidays. Ms E was alert to the child’s wishes, and in her evaluation at paragraph 65, said the following:
I hold major concerns for Y’s well-being if he remains living with his mother and having no contact with his father – which will almost certainly happen sometime after the Court is no longer involved.
I agree with the submissions of the ICL at paragraph 52 that:
… even though Y is 10 and has expressed such strong views to stay living with his Mother, his views ought not to be given much weight because:
a. Y has only ever lived with his Mother;
b.Y has clearly been exposed to his Mother’s very negative views about his Father and these have shaped his experience of his Father; and
c.The risk of emotional harm greatly outweighs the need to give weigh [sic –weight] to Y’s wishes.
I accept that Y’s primary relationship is with his mother at this time and that is what he knows. Although Ms E, in her evaluation as earlier quoted, had not had the benefit of observing the child after the extended time, I accept the evidence of the father and his wife that his relationship with his son has improved as a result of the extended time, including the holiday time. In my view, the father presents as a person insightful to working with the child to improve his relationship with the child. At the very least, it has to be said, the father has continued to persist in this litigation, often unrepresented and struggling with the language, when it would have been much easier for him to walk away from the proceedings and move on with his life. In my view, he has demonstrated a commitment to his son and demonstrated an insight into the benefit his son will have from having a continuing relationship with him.
I am unable to make any assessment of the strength of the child’s relationship with other members of the mother’s household because of her failure to produce evidence. I do have evidence from the father that there has been a growing sibling relationship with Z and I accept that evidence. I accept that the relationship with the father’s wife which is in its infancy, may never develop to the strength of the relationship the child has with the mother, but nonetheless has, in time, a benefit to him in developing as the father’s partner.
The father has had no real opportunity to make decisions about Y because the mother has not included him in decision making. On the evidence, the mother, without reference to the father, fairly early post separation, decided to call the child Y. During the trial, the father made it clear that he prefers the name X, and in fact, in his own household, calls the child “X”, which is his registered name. However, when confronted with the evidence, and explored by a question from the Bench, the father acknowledged that if Y wishes to call himself Y, then he shall be called Y. That is the nature of the undertaking the father gave to the Court through his last submissions and will be an Order made by the Court.
There is no evidence as to the level of child support the father has paid to the mother or the way he has supported the child in the past when he was not seeing the child so I am unable, on the evidence, to make any findings in that respect. I accept it will be a significant change for Y, not only to live in the primary care of his father, but also to have a period, as the ICL proposes, where he does not see the mother at all. This is dealt with by Ms E in her report and I share her concerns, but also accept, on balance, the long term benefits of a change of residence for this child outweigh the short term trauma and distress he is likely to experience.
To some degree, the child may deal with this transition more easily because, at least since August 2020, he has been spending six nights per fortnight during school terms with the father and has had some holiday time with him. I do not, however, underestimate the stress that he may feel, including that he may feel he has in some way let his mother down or disappointed her, and it is important that the father, being alert to this distress as he indicated in his evidence he was, that he arrange for appropriate counselling for the child. I intend to give the father leave to provide a copy of the family report of Ms E and a copy of these Reasons to any counsellor who the father chooses to provide therapeutic support to the child.
At an earlier stage in these proceedings, difficulties with the child attending Suburb H State School whilst living with the father or spending time with the father were encountered. The father proposes that if the child lives with him, the child will attend a school closer to the K Town home where he will be living. My understanding is that the mother can drive and has a car, the father can drive and has a car and his wife is currently attempting to get her provisional licence, having completed the requirements for a learner’s permit. In the circumstances, with both parties living within 20 kilometres of each other, I do not foresee any practical difficulties to be experienced with Y spending time with either parent.
The Court is required to consider the ability and capacity and attitude of the parents to parenting. I rely upon but do not repeat earlier comments made when considering the respective households of the parties. The child is a child with two different heritages. I am satisfied that the parties understand a range of cultural experiences are likely to benefit this child in terms of his heritage. To some degree, however, whilst his cultural heritages are extremely important for Y, he has spent all of his life in Australia and integrated also into the Australian community. His peers, social, musical and sporting communities and the like could be important for him. In my view, the father is better placed and more motivated to help the child in that regard than is the mother.
Whilst the mother has made serious allegations that, in the past, the father has been abusive towards her, the evidence, such as it is, is that this conflict occurred over 10 years ago, and there are no current family violence orders in place between the parties. I have already dealt with the rejection of the mother’s assertions, based on the child’s disclosures to her, she says, of the father physically abusing the child. The most recent and clearest example of that is the variety store experience. I am satisfied that actually what occurred on that occasion was that, during a visit, the father took the child to the store. The child wanted a more expensive toy than the father was prepared to buy. The child, whilst probably disappointed, settled for a NERF gun.
I do not accept, as the mother says the child expressed to her, and to some extent the child expressed to police, that the father was angry with the selection by the child, punched him, hit him and caused him to bleed. The child is alleged to have spoken to someone at the store, yet police investigations revealed no one had spoken to the child. The father denied the incident. The father was accompanied by his wife; she denied the incident. I have little doubt, sadly, that if the child continued to live in the care of the mother and spent time with the father, then the child would continue to be encouraged by the mother to make up stories about the father which would likely require further investigation and interruption to his relationship with the father, as it has in the past, without proper justification.
The Court is required to make an order which is least likely to lead to new proceedings. I accept, as the ICL asserts at paragraphs 115 to 119, that making the order proposed by the ICL brings with it a risk that, after the moratorium period, the child could act in such a way as to cause further proceedings to be commenced. The mother could, if she is unable to accept the decision, and my assessment of her is that she will find it very difficult to accept this decision to change residence of the child, may withhold the child and may encourage the child again to make more unsubstantiated complaints about the father, as she has in the past.
CONCLUSION
The parents are unable to communicate at any level. In my view, the presumption of equal shared parental responsibility is not in the child’s best interests in this case. As the child will be living primarily with the father, it is both practical, sensible and appropriate that sole parental responsibility, as proposed by the ICL, be granted to the father. I will, however, require the father to do his best to inform the mother of decision making relating to major, long term issues.
There is nothing on the material to date which suggests that relocation is anticipated. Whilst there will be a change of school, the father has identified the school, being another state school within the community where he lived. Thankfully, Y does not have any significant health issues, so medical issues should not be a problem. There is no reason to suggest that faith issues may be a problem for this child. The Court will, so as to avoid any doubt, direct the father by the Orders, to arrange for the child to undertake a form of therapeutic support, whether funded through a mental health plan or otherwise, to support the child through the transition. The father’s undertaking and agreement to continue to call the child by the name of Y rather than X was both insightful and appropriate and will be recorded in the Orders.
I make Orders that are, in the assessment of the Court, as set out at the commencement of these Reasons.
The change of residence is to occur immediately. I estimate the child is currently in the care of the father. It will not be an easy exercise for the father to help Y initially cope with such a significant change during school holidays.
He may decide that the child continue his current schooling for a term or two before changing schools, to assist the transition. I am confident that with guidance from his solicitor and/or the ICL, arrangements for counselling urgently can be made. It is important to do so.
If a change of residence did not occur immediately (followed by a moratorium where no time occurred), then there is a high probability the child would not spend time, or return to the father’s primary care as I have assessed is in his best interests.
I propose to reduce the period of the moratorium to three months rather than four months.
I find that, if the transition to the father’s care progresses well in time, and after the three month moratorium, the mother does accept the opportunity to spend supervised time for six months (or effectively 13 fortnightly visits), moving to unsupervised day time as proposed by the ICL’s order is appropriate.
In nine months’ time, Y will be approaching his 11th birthday, and I can envisage that extending time to include overnight visits and holiday contact should be considered by the parents – perhaps, in the absence of any parental agreement, by the commencement of term 3 2022.
However, on the evidence before me at this stage, projecting a future suitable arrangement so far into the future – without data or evidence about how the child would adjust to increased time with his mother and whether the concerns expressed about the mother has diminished – is more theoretical than a finding based on evidence.
To the extent that further proceedings to advance the child’s time with the mother might be necessary in 12 months’ time or so, I accept these current Orders may need to be reviewed. Much will depend not just on how the child’s best interests will be served as the paramount consideration, but more so, whether the risks I have found do exist in the mother’s parenting style at this time have changed. This will ultimately become a matter for the mother, who I hope will get therapeutic support as she will, I have no doubt, be devastated by my decision.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 14 April 2021
APPENDIX ONE
ICL’S proposed final orders
Previous orders
1. That all previous orders and parenting plans are discharged.
Parental responsibility
2.That the father shall have sole parental responsibility for the child Y (aka X) born … 2011.
Lives with
3.That the child shall live with the father.
Spends time and communicates with
4.That the child shall spend time with the mother –
a.After a period of 4 months, no time, for two hours each fortnight at B Group with the mother to meet the costs of the contact centre.
b.Then, after 16 visits at B Group, every second Saturday or Sunday from 10am until 4pm with changeover to take place at B Group with the mother to meet the costs of the changeover.
Exchange of information
5.That each party will keep the other informed of their mailing address, email address and mobile telephone number and advise the other of any change 7 days prior to the change.
6.That this order is authority for the mother to obtain information about the child’s education including copies of the child’s school reports and photographs (at her cost).
Other
7.That neither party shall physically discipline the child nor permit any other person to do so.
8.That neither party is permitted to take the child to Police or Department of Child Safety, Youth and Women or to any other organisation without the prior written consent of the other party or order of the court.
9.That during the time the child is with either parent, that parent shall:
a.respect the privacy of the other parent and not question the child about the personal life of the other parent;
b.speak of the other parent respectfully;
c.not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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