Hao & Ren

[2021] FedCFamC2F 407

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hao & Ren [2021] FedCFamC2F 407

File number:	MLC 14039 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	4 November 2021
Catchwords:	FAMILY LAW – interim parenting and property hearing –  father’s time with the child to remain supervised – observations of the supervision service – independent children’s lawyer to be appointed – fortnightly time too far apart – father to attend and participate in a parenting skill course – parties to organise further valuations for the property proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 67Z & 69ZL.
Division:	Division 2 Family Law
Number of paragraphs:	12
Date of hearing:	4 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr O Cain
Solicitor for the Applicant:	Scomparin & Bernardi
Counsel for the Respondent:	Ms A Juneja
Solicitor for the Respondent:	V M Family Lawyers

ORDERS

MLC 14039 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HAO

Applicant

AND:

MS REN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	4 NOVEMBER 2021

THE COURT ORDERS THAT:

Parenting

1.All extant parenting orders remain in full force and effect save that paragraph 2 of the interim orders made on 10 March 2021 be amended to provide for the Husband’s time to continue to occur on a supervised basis:

(a)For the period 8 November 2021 until 5 December 2021, for up to one hour per fortnight;

(b)For the period 6 December and thereafter, until further order, for up to one hour per week;

(c)From 28 February 2022, pending provision to the parties of a supervisor’s report which reflects positively upon the Husband, as agreed between the parties, on an unsupervised basis and failing agreement as provided in order 1(b) herein.

2.Pursuant to section 68L(2) of the Family Law Act 1975 the child, X born in 2019, be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children’s Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.

3.The Husband enrol, attend and complete a parenting skills course as recommended by the Independent Children’s Lawyer.

4.The Husband provide a further report from the supervision service on or about 28 February 2022.

Property

5.Paragraph 6 of the interim orders dated 10 March 2021 remain in full force and effect.

6.The parties and any lawyers on the record shall personally attend a further Conciliation Conference on 3 February 2022 and 9:00am.

7.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.

8.At least 14 days prior to the conference date, each party must:

(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;

(b)ensure that any private expert report that is relevant to the proceedings has been filed;

(c)provide to the Court by email to the relevant case manager at …@fcfcoa.gov.au and to the other party a single collated bundle of documents comprising:

(i)a Confidential Outline of Case (Dispute Resolution)

(ii)a detailed minute of Orders Sought;

(iii)details of any previous or current family violence orders;

(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);

(v)particulars of any financial resource;

(vi)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;

(vii)statements for, and where applicable, valuations of any superannuation interest;

(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

9.The parties do all acts and things required to obtain an updated valuation for the former matrimonial home at B Street, Suburb C (“the former matrimonial home”) with the valuer as agreed between the parties and that they be equally responsible for the cost of the valuation report on the basis and that the Husband pay for the report in the first instance and the Wife's half share of the cost of the report be paid by her at final settlement of the property proceedings. 

10.The updated valuation referred to at order 8 above be undertaken and complete no earlier than 28 days prior to and no later than 7 days prior to, the Conciliation Conference referred to in order 6 above.

Procedural

11.Liberty reserved for either party to apply regarding the Father’s time.

12.The matter be adjourned to 9 March 2022 at 9:30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.

AND THE COURT NOTES THAT:

A.The parties assured the Court that any outstanding disclosure will be attended prior to the Conciliation Conference and the parties have been advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders because of non-disclosure.

B.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:

(a)the total costs and disbursements incurred by the party in the proceeding to date;

(b)an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and

(c)an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

C.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the conference.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in the circumstances where it is eight minutes to 5:00pm, at the end of a busy interim week. I should indicate that I am going to have the 67Z response marked as exhibit C2 4 November 2021. In this matter, I am asked to determine a dispute as to the time that the child, X (“the child”), who was born in 2019, and is now two and a half years old, should spend with his father, Mr Hao (“the Father”). The child lives with the mother, Ms Ren (“the Mother”).

2. The parties commenced cohabitation in 2018, married in 2018, and separated in November 2019.  The Father commenced proceedings in December 2020.  When the Father issued proceedings, he sought property relief only.  Subsequently, he sought parenting orders relating to the child in an amended initiating application filed on 10 May 2021.  The parents had made orders by consent on 10 March 2021 that the child spend supervised time up to one hour per week either in two blocks of 30 minutes, or one block of one hour at such times and locations as determined by the supervision service.

3. Supervision did not occur until later in the year, and ultimately, commenced with the family contact service on 1 September 2021.  One of the significant documents I have is the report of observations of that supervised time.  That report shows that the child was distressed on the first occasion and that the supervision that was intended to happen on 8 September 2021 was cancelled by the Father.  The next visit was then on 15 September 2021 where the child was unsettled for the first 18 minutes.  The service reports that the Father had told the supervision service that he could only commit to fortnightly visits.

4. The next visit was to be a fortnight thereafter 29 September 2021.  That was cancelled because the child had a blood nose on the way to the supervision facility.  On the next occasion, 6 October 2021, the Mother attended the facility, and the Mother alleges the supervisor did as well, but the Father did not confirm the visit or attend.  The effect was that the child saw his Father on 1 September 2021, 15 September 2021 and then a leap to 20 October 2021, and then again on 3 November 2021.

5. The report includes observations that the Father either did not understand or was reluctant to follow the helpful directions and guidance of the supervision service.  It is very important that both parties follow with great care and respect the observations, suggestions and directions of the supervisors.  It is important for each parent to follow those directions, so that the other parent has confidence in the facility of supervision.  Hence, it appears that though the parties agreed in March to weekly time, that this was changed by the Father to fortnightly time.  The Father now seeks that that time continue fortnightly until 5 December 2021, and thereafter, to continue weekly, but with time to increase from 3 January 2022 to two hours and then three hours from 31 January 2022.

6. The Mother seeks that the time remain fixed at one hour and fixed at fortnightly intervals.  The Father's case is that he would now prefer it to be weekly, but he says acquiescing to the position of the Mother, he is content to leave the time fortnightly until 6 December 2021.  Effectively, the parties are in agreement until 6 December 2021, and thereafter, the dispute is whether the time should be fixed at one hour or whether it should extend to two hours and then three hours, and whether that should be fortnightly or weekly.

7. I must make orders in the best interests of the child, I take into account the two primary considerations, and give greater weight to the second or safety consideration. I take into account the 14 additional matters under section 60CC(3)(a) to (m) of the Act. It is not appropriate at this hearing to apply the presumption of equal shared parental responsibility, and I do not. My determination is that the time following from 6 December 2021 and onwards, should be a period of one hour, unless the parties agree, and it should be weekly.

8. I am concerned that the time being a fortnight apart for the child makes it too difficult for him to settle in the care of the supervisor and his Father.  He is familiar with being cared for by adults other than his Mother.  Absent COVID-19 lockdowns, he attends child care Monday, Tuesday, Wednesday and Thursday from 9:00am to 4:00pm.  However, that is in the care of skilled educators or childhood educators.  I am not yet satisfied that the Father has the parenting skills to be able to deal with the very difficult circumstances of introducing himself to a child of two and a half.

9. For that reason, until further order, the time will remain up to one hour, but each week.  I place significant weight on what is in substance an undertaking from the Father's counsel that he is committed to and will pursue weekly time.  For the time or introductory time of the child to be a fortnight or more apart is simply not in the child's best interest.  Further, I am going to order that the Father undertake a parenting skills course as recommended by the Independent Children's Lawyer (“ICL”), who I am going to appoint.

10. The Father has a very difficult parenting road ahead.  He needs assistance to acquire necessary skills to be able to parent the child for a longer period, and/or unsupervised.  The time for the review of the time of 28 February 2022 or thereabouts is a sensible one, and I adopt order number 2 of the Father's minute.  Order number 1 will be (1)(a).  The next order will be (1)(b), save that it will have, instead of the words "until 2 January 2022", it will have the words, "and thereafter, until further order."  There will be an order for the appointment of an ICL, and there will be an order that the Father undertake a further report from the supervision service, the Family Contact Service on or about 28 February 2022.

11. There will be liberty to apply to any party regarding the Father's time.  That is, the intent of that is that if that time is progressing satisfactorily, it can be reviewed with the assistance of the ICL.  Now, I'm not prepared to find as urged on me by the Mother's counsel that the Father is simply not interested in the child.  He has gone to a lot of trouble and expense, has solicitors and barristers lined up to be able to see the child.  However, his understanding of fortnightly time being sufficient for the child to get to know him is deficient.

12. In terms of the dispute about the valuation, I make the order as marked in red.  That is, the parties will equally share the costs, but the Father will pay in the first instance, and the Mother's half-share will be repaid in the final property proceedings.  One of the matters that I take into account there is that the Father's financial circumstances are superior to the Mothers, and that paragraph 64 of his affidavit dated 10 May 2021 is only partly accurate in the circumstances that it is the parties’ redraw facility that is paying the mortgage, not the Father as he states in that affidavit.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       18 November 2021