Hua & Jiang
[2023] FedCFamC2F 197
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hua & Jiang [2023] FedCFamC2F 197
File number(s): PAC 4410 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 23 February 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests of child – Orders made. Legislation: Australian Passports Act 2005 (Cth) ss 11(1)–(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 68B
Division: Division 2 Family Law Number of paragraphs: 149 Date of hearing: 9–10 February 2023 Place: Parramatta Counsel for the Applicant: Mr Mando Solicitor for the Applicant: Pinnacle Lawyers Counsel for the Respondent: Mr Galapo Solicitor for the Respondent: Lavulo Lawyers Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 4410 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HUA
ApplicantAND: MS JIANG
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The child X, born in 2006, (“X”) shall live with the mother.
2.X shall spend time with his father in accordance with the views as expressed by X, with both parents to do all reasonable things to facilitate such time.
3.Pursuant to sections 68B(1)(a) and 68B(1)(b)(i) of the Family Law Act 1975 (Cth), the Court grants an injunction for the personal protection of X and the mother, hereby restraining the father from:
(a)Approaching, contacting or attempting to contact the mother and/or X except as otherwise provided in the Orders or otherwise agreed to in writing between the parties;
(b)Entering or attempting to enter any place where X attends school, after school care or vacation care, including travel to and from school;
(c)Entering or attempting to enter, or attending at any extracurricular activity attended by X;
(d)Assaulting, molesting, harassing, threatening or stalking the mother and/or X.
4.The mother shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for X and for this purpose, pursuant to sections 11(1) and (2) of the Australian Passports Act 2005 (Cth), these Orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X, born in 2006.
5.The mother shall hold X's passport upon it being issued.
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 Hua & Jiang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
A final parenting hearing was held on 9 and 10 February 2023 in respect to the child, X, born in 2006. X will turn 17 years in 2023.
At the outset of the final parenting hearing, the parties and Independent Children’s Lawyer (“ICL”) informed the Court that they had reached agreement in relation to the child living with the mother and spending time with the father pursuant to his wishes. They informed the Court that the remaining issues were, inter alia, the issue of parental responsibility and the mother’s proposed restraining orders against the father pursuant to section 68B of the Family Law Act 1975 (Cth), (“the Act”).
On 25 November 2020 this Court had made interim parenting orders that the child live with the mother; that the child spend time with the father in accordance with his expressed views (and with both parents to do all reasonable things to facilitate such time); and certain restraining orders were made against the father pursuant to section 68B of the Act in respect to the child and mother.
PROPOSALS
The father seeks final parenting orders in accordance with his Amended Initiating Application filed 13 January 2023 (but subject to the above agreements as to final parenting orders); inter alia, he seeks orders that the parties have equal shared parental responsibility for the child; and that the parties are to reset and utilise the Microsoft Family Program to control the child’s Internet video gaming addiction and promote the child’s focus on his academic curriculum. The father opposes the mother’s proposed restraining orders under section 68B of the Act.
The mother seeks final parenting orders as set out in her Amended Response filed 4 August 2022 (but subject to the above agreements as to final parenting orders); inter alia, she seeks orders that the mother have sole parental responsibility for the child; and she seeks certain restraining orders pursuant to section 68B of the Act for the personal protection of the child and the mother.
The ICL seeks final parenting orders as set out in his proposed Minute of Final Orders (but subject to the above agreements as to final parenting orders) and which are significantly consistent with the mother’s proposed orders.
MATERIAL RELIED UPON
The father relied upon:
(a)Amended Initiating Application filed 13 January 2023;
(b)His affidavits filed 9 October 2020 and 13 January 2023;
(c)His tender bundle.
The mother relied upon:
(a)Amended Response filed 4 August 2022;
(b)Her affidavits filed 28 January 2020, 5 May 2020 and 4 August 2022;
(c)Family Report dated 5 October 2021;
(d)Child Inclusive Conference (“CIC”) Memorandum dated 22 February 2020.
The ICL relied upon:
(a)Family Report dated 5 October 2021;
(b)CIC Memorandum dated 22 February 2020.
Exhibits
The following documents became exhibits:
(a)Exhibit A: Father’s tender bundle
(i)District Court Outcome Dated 23 May 2019;
(ii)Summary of School Meeting Dated 9 August 2019;
(iii)Microsoft Family Program Report from 2019;
(iv)X’s School Report for Year 11 Semester 1, 2022;
(v)X’s School Report for Year 11 Semester 2, 2022;
(b)Exhibit B: Family Report dated 5 October 2021 and CIC Memorandum dated 22 February 2020.
EVIDENCE
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties and the Family Report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Subject to the Court’s findings discussed below in its discussions under section 60CC of the Act, and under the headings “Parental Responsibility” and “Proposed restraining orders against the father under section 68B of the Act”, where there is any conflict between the parties’ respective evidence or statements to Family Consultant Ms E (both at the CIC and for the Family Report) the Court prefers the evidence of the mother. Both parties were cross-examined. The Court should state that whilst it found the mother to be a credible and impressive witness, the Court found the father to be an unimpressive witness, who was often evasive and gave unresponsive answers to questions asked of him, and was verbally strident in his answers. The father’s belated evidence during his cross-examination to the effect that the parties had reached an oral agreement that the father could bring certain food items for the child to the mother’s home despite the terms of the Court’s interim restraining Orders of 25 November 2020 lacked credibility and was not referred to in his recent affidavit (and which was denied by the mother). The father’s recent affidavit evidence that (after the Court’s interim restraining Orders of 25 November 2020) the child would approach him and the father would give him food and money was contrary to the child’s statements to Ms E at the Family Report interviews. And the mother’s evidence in respect to the father’s harassing and abusive behaviour towards her post separation was consistent with the child’s statements to Ms E (both at the CIC and for the Family Report).
Affidavits of the mother
In the mother’s affidavit filed 5 May 2020, she stated that since 24 March 2019, she has not heard the child say that he wants to go to see the father. She stated that on a number of occasions when the father had come to their home, she observed that the child would not go to the door to look at the father shouting outside their home.
In that affidavit the mother stated that she wished that the father would stop sending abusive messages. She stated that on a date in July 2019 she read a text message from the father to the child referring to the mother as the child’s devil mother who the child helped destroy the father.
The mother swore an affidavit filed 4 August 2022.
The mother stated that during the parties’ relationship she observed that the father would do things that he thought was best. The mother could not communicate with the father as whatever she said to the father he would not listen to her opinion. Whenever the mother tried to discuss the father’s demands, she heard him tell her that he made the final decisions. The mother observed that the father did not like to take anyone’s advice. The mother found it very hard to communicate her concerns with the father about the child’s wellbeing. Following the mother attending upon a psychologist for the child about his behaviour, the father told the mother that she had to encourage the child to change his bad behaviour and both the mother and child had to listen (to the father) so the child could do well in school.
The mother stated that after separation in 2018 the child lived with the father until 24 March 2019. The mother spent time with the child from December 2018 to 24 March 2019 on average four days each week.
The mother stated that on numerous occasions after 24 March 2019, she heard the father shouting outside her home, and she also received abusive voice messages from the father. The mother became concerned about, inter alia, the father’s abusive behaviour towards her and the child’s refusal to see the father, and attended counselling sessions with a psychologist between May and October 2019 for a total of six treatment sessions. The psychologist, in her report dated 12 January 2020 stated, inter alia, that the mother had reported that every day she was anxious and afraid because the father came to her residence and stalked herself and the child; the Court accepts these statements of the mother to that psychologist.
The mother stated that in Year 8 the father enrolled the child without the mother’s consent in the Religious School. She stated that the father told her that he had changed the child’s school because they could not control his Internet screen time. The mother stated that after herself and the child attended upon psychologist Mr D in about April 2019 she enrolled the child back at the School A.
The mother stated that the child is a teenager now and she can see that he can make decisions on his own about his education, and that she continues to encourage the child to seek a good education.
The mother stated that since 24 March 2019 the child has said to her numerous times that he is fed up with the father following him to and from school, that the father screams at him and won’t leave him alone, that he has told his teacher and his teacher would contact the mother to tell her.
The mother stated that after the Court Orders of 25 November 2020 the child had told her that the father continued to come to his school and approach him outside the school and talk to him. The child told the mother that he did not want the father to come and see at school. He told the mother that he did not want to go and spend time with the father had his home.
The mother stated that the child has seen the father outside his school from time to time since living with the mother from 24 March 2019 and even after 25 November 2020. The mother stated that the father’s visit outside the child school has not been arranged with her for the child. She stated that the child is not fearful of the father but feels that the father continues to harass him which he does not like.
Oral evidence of the father
It was put to the father that since the restraining Orders of 25 November 2020 made against him he had attended the child’s school on numerous occasions. The father ultimately stated that he had called out to the child’s schoolmate from a bus stop about 30 m away from the school.
The father stated that that after the interim restraining Orders of 25 November 2020 were made an oral agreement was reached with the mother that he could bring certain food items to the child. (As discussed later in these Reasons, the Court does not accept that such an oral agreement was reached between the parties.) He stated that he had attended 30 m away from the child’s school and it was only when the child talked to him that he talked to the child; he agreed that he would talk to the child’s friends until the child talked with him. The father stated that he had knocked on the mother’s door and left things that he brought for the child and then he left, but with the mother’s agreement. (Again, the Court does not accept that any such agreement was reached between the parties.)
It was put to the father that he had left an abusive voice message with the mother on 14 April 2019. In response, the father stated that he did not know what the cross examiner was talking about, that he had left a lot of messages on the mother’s phone, and if it was illegal the mother should have let him know.
The father was asked whether he respected the child’s wishes, to which he replied that of course he respected his wishes but only on positive things.
Oral evidence of the mother
The mother stated that she lived at Suburb F and worked as a health worker.
The mother confirmed her affidavit evidence in relation to the father, from jail, requesting the mother and child to change their testimony against him.
The mother confirmed that she sought an order for sole parental responsibility. In this context she referred to the father previously having transferred the child to a different school without telling her.
The mother’s attention was drawn to a Microsoft tracking program for the child’s computer. The mother stated that the child had told her a long time ago that if this program was used (in relation to his computer use) he would be prevented from logging into his school’s platform and doing other work. The mother stated that a particularly lengthy period of Internet usage by the child occurred during the COVID-19 lockdown.
It was put to the mother that she could not control the child, to which the mother responded that for a child of the child’s age her responsibility was to guide the child and not control him.
In answer to questions from counsel for the ICL, the mother stated that the child does spend a lot of time playing video games however when he plays such games he chats to his friends. She stated that she encourages the child to go outside and he does so (as a form of break from computer use).
The mother denied that she had reached any agreement with the father as alleged by him in relation to the restraining Orders of 25 November 2020, and she denied agreeing with the father that he could leave food for the child at her home.
The Child Inclusive Conference
This conference (“CIC”) was held on 21 February 2020 with the parents and child by Ms E, Family Consultant.
The mother told the Family Consultant that she was fearful for her current safety, having stated that the father has left aggressive voice messages on her mobile phone, and stated that she was concerned that the father may attempt to physically harm her. She stated that she blocked the father’s telephone number, however, while he cannot phone or text her, he can still leave voice messages.
The mother reported that the father left her the following voice message on 14 April 2019:
You’re looking for death; and you are the baddest of the bad; you have mental problems; you are insane; you should go to mental hospital; you are the terrorist; you have made me have bad disease and high blood pressure.
The mother reported that the father currently stands outside her and X’s home shouting out abusive comments towards her. She reported that the father’s behaviour annoys her neighbours and landlord and she is fearful that her landlord may not renew her lease as a result.
The mother reported that she is aware that the father has been attending the child’s school up to three times a day, and the teachers have felt harassed and contacted the police as a result.
The Court refers to the child’s statements made to the Family Consultant. Inter alia, the child reported that the father follows him to and from school, stands outside the mother’s home and shouts at him and the mother and attends his school about 50 per cent of the time. He stated that, “Sometimes I don’t remember when he follows me home. I’m used to it, but that shouldn’t be happening (getting used to it)”.
He stated that he wants the father to stop following him, bothering his friends and people around him, and stop coming to their house. The child told the Family Consultant that the day before the interview the father followed him from school to home. He stated that he and his friend went behind a corner and started running down the street.
The child stated to the Family Consultant that he did not want to see the father currently. He stated that this might change in the future but at the moment if he is forced to go and see the father he will not go.
The child stated to the Family Consultant that he did not like the father trash-talking the mother. He reported to the Family Consultant that sometimes he had to listen to the father’s comments such as, “your mother is cheating you”, “poisoning your mind”, “gives you games”, and “game is like a drug.”
The child reported to the Family Consultant that he has tried to explain to the father that after school, sleeping, and his other activities, which include spending time with his friends, that there is no more than an hour left in a day for gaming, should he wish to play computer games. The child reported, however, that the father did not believe him.
The child reported to the Family Consultant that he likes living with the mother.
The child reported that the mother is better at discipline, and that sometimes the mother can be relaxed about things, but he would not listen to the father anyway.
The child reported to the Family Consultant that it is a challenge for him to get away from home without the father noticing him. He reported that the father talks to him loudly on the bus and says to him “gaming is drug”. The child reported that he worries that someone else could take what the father is saying out of context and think that he is all these bad things.
The child stated to the Family Consultant that he does not want him to get an AVO, just tell the father to stop bothering him.
The child reported to the Family Consultant that he could reconsider in the future whether he wanted to see the father, however, he stated that he did not think his father’s behaviour will be getting any better.
The Family Consultant stated that the child’s presentation and the information he shared in the interview was not reflective of the father’s description of him.
The Family Consultant stated that the child appears to be under stress in relation to the father’s alleged behaviour. The Family Consultant stated that if the father is displaying behaviour, as described by the child and the mother, then this will be impacting on the child’s ability to freely socialise with his peers, feel comfortable in school and feel comfortable at times at home.
The Family Consultant stated that the Court may wish to consider, in light of the child’s age, to give greater weight to his wishes about spending time with the father.
The Family Consultant stated that it may assist the Court to consider making a family violence order for the protection of the mother and the child.
The Court accepts the evidence, including opinions, of the Family Consultant.
The Family Report
The Family Report writer was Ms E, Family Consultant, and her report is dated 5 October 2021.
The Court does not propose to set out the entirety of the contents of the Family Report.
The Family Report writer stated that she had reviewed certain documents including the father’s affidavits filed 6 September 2019 and 9 October 2020.
The Family Report interviews with the mother and child were held in July 2021. The father was not interviewed for the Family Report. Under the heading, “Limitations of the assessment process”, it was stated:
[Mr Hua] was contacted several times but appeared unable to understand the purpose of the interview, believing instead that the Family Consultant was attempting to move the date of the Directions Hearing scheduled for 8 October 2021. As the same Family Consultant completed the Child Inclusive Conference on 22 February 2020, it was possible to use information obtained gained from this assessment to inform this Report. Information from [Mr Hua]’s Affidavit filed 6 September 2019 was also used to inform this Report. Due to the 2021 Covid restrictions, it was not possible to complete formal parent-child observations. [X], however, was observed briefly, by video, in the presence of [Ms Jiang], which provided some information about the nature of his relationship with [Ms Jiang].
Later in paragraph 2 of the Family Report, it was stated:
2.[Mr Hua] reported, during the Child Inclusive Conference held on 22 February 2020, that he is retired and in receipt of a pension. [Mr Hua] reported that he was born in [Country G]; and that his parental heritage is Chinese. He reported that he came to Australia in 1981 as a refugee. He reported that he speaks Cantonese, Mandarin, and English. [Mr Hua] was not able to be interviewed for this assessment, all information from him included in this Family Report is drawn from his Child Inclusive Conference interview on 22 February 2020 or material he has filed with the Court.
Ms Jiang reported that X attends School A and lives with her full-time. She reported that X, in accordance with X’s wishes and the Order made on 25 November 2020, currently does not spend any time with Mr Hua. This Order states that X shall spend time with Mr Hua in accordance with the views as expressed by X.
Ms Jiang reported that she and Mr Hua separated in 2018.
Ms Jiang reported that the Department of Communities and Justice (“DCJ”) was involved with X when he was in Year 4 at school. She said that DCJ’s involvement was in relation to a report they received about Mr Hua’s perpetration of family violence and Mr Hua’s physical abuse of X. Ms Jiang reported that as an outcome DCJ involvement, an Apprehended Domestic Violence Order (“ADVO”) was made against Mr Hua for her own and X’s protection.
Ms Jiang and X both report that Mr Hua’s harassing and intrusive behaviour significantly impacts his school attendance, and is compromising his education.
Ms Jiang reported that she does not have any concerns about her mental health. She reported that she felt stressed when Mr Hua’s harassment, and intrusion, into her and X’s lives was at its worst, from 2019 to 2020; and it was during this time period that she sought psychological intervention for herself. She reported that this intervention was helpful in assisting her to manage the stress that she was experiencing.
Ms Jiang reported that Mr Hua has difficulty regulating his emotions and would become angry towards her and X at least once a week, if they did not do what want he wanted.
Ms Jiang (aged forty years) reported an extensive history of family violence from Mr Hua, which included physical violence, controlling behaviour, and threats to kills her.
Ms Jiang reported that she still fears Mr Hua. She said although she and Mr Hua are no longer living together she believes his attitude is still the same. Ms Jiang reported that, in relation to Mr Hua’s perpetration of family violence, she is not concerned about X’s physical safety. She said that this is because “X is older now. He is tall and strong and knows how to protect himself.” She reported, however, that she is concerned about the psychological impact of Mr Hua’s current behaviour on X.
Ms Jiang reported that from 2018 to 2020 she felt psychologically terrorised by Mr Hua. She said from 2018 to 2019, if she missed a telephone call from Mr Hua, he would leave threatening messages on her answerphone and keep calling until she answered the phone. She said as a result she had to block Mr Hua’s number. She said from 2018 to 2020, Mr Hua would stand outside her front door “screaming” on a daily basis between 10.00pm to midnight. She said that she feared her neighbours might report Mr Hua’s behaviour to her landlord and she could lose her tenancy. Ms Jiang reported that Mr Hua’s behaviour, in relation to the above, was at its worst in 2019, because X refused to spend time with him. She said that in response to Mr Hua’s behaviour, she contacted the police in 2019. She said, however, despite speaking to herself and X separately, the police concluded that the matter was a “family matter” and took no further action.
Ms Jiang reported that Mr Hua’s intrusive behaviour lessened after Orders were made on 25 November 2020, restraining Mr Hua from contacting herself and X at home and X outside the home. She said, however, that on average, Mr Hua still attends her home four days a week. She said that Mr Hua knocks on her door and says that “he has bought food for X” and then leaves; or shouts out X’s name and then sits by the front door and watches the house. Ms Jiang reported that some of the food that Mr Hua has been leaving lately has been rotten. She said, for example, he has left bags of rotten cucumbers and rotten apples at her door. She said that other food that Mr Hua has left includes traditional Chinese soups, marinated meats, and cakes. She said, however, X does not wish to eat the food that Mr Hua leaves, and as she does not like to waste food, she eats the food. Ms Jiang reported that Mr Hua also attempts to give X food on his way home from school, which embarrasses X. Ms Jiang reported that Mr Hua does this because he believes that she is not providing X with enough food, or food that is sufficiently nutritious.
Ms Jiang reported that from May to June of 2021, Mr Hua left items from his own home at her door every day. These items included: paperwork, pens, heaters, and toys that X had played with when he was younger. Ms Jiang reported that she attempted different strategies to try to stop Mr Hua leaving items outside her door, which included telling him that she would call the police if he continued. She said Mr Hua responded by “swearing at me; and saying to me you are hurting me again.”
Ms Jiang said that neighbours have told her that, on occasion, Mr Hua has sat outside her and X’s home for long period of time. Ms Jiang reported that feels like Mr Hua is “always watching” her; and neither she nor X have their privacy. Ms Jiang said that Mr Hua also tells her neighbours, “how bad I am; how miserable he is; and how miserable X is” and asks them “to please save X.” Ms Jiang reported that she fears the neighbours who do not know Mr Hua well may believe what he tells them. She also fears that should she find employment, Mr Hua would find her place of employment, and similarly tell her colleagues and employer “how bad I am” and compromise Ms Jiang’s employment.
Ms Jiang said that it is impossible to communicate with Mr Hua because he “always thinks he is right.” Ms Jiang reported that if she or X want to go out, “we open the door slightly to see if he [Mr Hua] is there; and if he is, we quickly close the door and don’t leave the house.” She said for herself, Mr Hua’s behaviour compromises her social life and affects her psychologically, because she feels like there is no escape from Mr Hua’s intrusion into her life, as she can never know when he might be outside her door. Ms Jiang said neither she nor X want to see Mr Hua arrested for breaching the injunction made by the Court on 25 November 2020. Ms Jiang said they just want Mr Hua to “stop affecting or lives.” Ms Jiang reported, however, that although there is an injunction against Mr Hua approaching her or X, she does not have a copy of the Order, therefore she has not been able to contact the police to have Mr Hua removed. The Family Consultant subsequently posted a copy of this Order to Ms Jiang.
Ms Jiang said for X, Mr Hua’s continuous unwelcome behaviour and presence in his life at home and when X is travelling to and from school is having a negative impact across multiple aspects of his health, welling, and development. Ms Jiang reported that when Mr Hua is outside their home, X does not feel he can leave the home and this makes him frustrated. Ms Jiang reported that as a result, X is frequently late for school. Ms Jiang said that X can be up to two hours late for school on occasion. Ms Jiang reported that Mr Hua’s presence outside the home prevents X from going out to spend time with his friends or to play sports. She said that because Mr Hua also attempts to meet X at his school, X has to try to lose him if he going to a friend’s home after school. Ms Jiang said that Mr Hua also sometimes gives food to X’s friend and asks this friend to give the food to X. Ms Jiang reported that X is embarrassed by this. Ms Jiang said that Mr Hua also talks about the family situation to X’s friends, teacher, and school principal, which also embarrasses X.
Ms Jiang reported that she does not use drugs of any kind and does not consume alcohol. She recalled that during her relationship with Mr Hua, Mr Hua did not use drugs of any kind; and only consumed beer moderately. Ms Jiang reported that although she recognises that alcohol can affect a person’s behaviour, Mr Hua had difficulty regulating his emotions whether he had consumed alcohol or not. She reported that, by way of example, Mr Hua would become angry for no apparent reason and “swear at us [Ms Jiang and X]”; throw things; and damage things, such as cutting the bedsheets and quilt cover with scissors on one occasion. Ms Jiang was asked whether she thought Mr Hua had any mental health problems or difficulties. Ms Jiang responded by speaking further about how Mr Hua had “difficulty” controlling his emotions.
Mr Hua reported on 22 February 2020 that an ADVO had been made against him for Ms Jiang’s protection in 2015. Mr Hua refuted the evidence upon which this ADVO had been based. He reported that later that same year, X, informed by his mother’s actions, also sought to have an ADVO made against him. Mr Hua said that in 2015, as a form of behaviour management, he “took out a stick to scare X.” Mr Hua reported that X “struggled a bit” and that the stick may have “made a mark on him.”
The parents are currently not in a position to co-parent X. Both parents view the actions of the other parent as harmful to X; and Ms Jiang reports continuing family violence from Mr Hua.
The Family Report writer stated that X, aged fifteen years, as he had done on 22 February 2020, presented as an articulate young person. X also appeared to have significantly matured since his last interview. In his last interview X expressed anger towards his father for his intrusive and controlling behaviour towards himself and his mother. During his interview for this Report, X did not present as angry towards his father, however, remained consistent in his view that he does not currently wish to spend time with Mr Hua. X also appeared more thoughtful and considered in his responses to the Family Consultant; and this included expressing the mixed feelings he currently holds towards his father.
X said that he currently does not want to spend time with Mr Hua because “I do not like him.” He said it is because “of how he acts around other people. His behaviour is not socially acceptable I guess.” X said that father “yells” to him from “across the street” outside his school; and “publically shames me in front of my friends and other people.” He said that his father “does not does not present himself well and does not smell the best.” X said his father’s presentation “leaves a poor impression (on) my friends’ minds.”
X said that because of his father’s presence, outside the home or alternatively on the way the way to school, “sometimes I just don’t feel like going to school.” He said that if his father is outside the home then he tries to wait until he leaves before he goes to school. He said that this “probably takes away few hours [of the school day] so it does not look good on my [school] record.” X said that while his father’s presence does not prevent him from seeing friends, likewise it frequently delays from him leaving the house to spend time with his friends or engage in activities he enjoys, such as sports.
X said that his father attempts to give his food and money outside of his school. X said that when he has attempted to tell his father not to give him money or food, his father has given the money or food to his friends instead; and asked his friends to pass it onto him. X said that this upsets him because it means “friends are brought into a family matter; when it’s not their business.” X said that he knows there is an injunction preventing Mr Hua from approaching him, so his father may be breaching the terms of this injunction by passing food and money onto him through his friends. X said that as he does not want to eat the food his father gives him so he gives the food to his mother, leaves it outside the house, or gives it to stray cats. X said that he does not eat the food Mr Hua brings him because he is concerned about the cleanliness of the food, given that his father “does not seem to take care of himself.” X said that he also does not like the type of food that his father brings him. He said that his father brings him traditional Chinese food which he no longer likes.
X expressed concern that his father keeps trying to give him money. He said that this was because his father does not have much money and is in debt. X reported that his father, through his school friends, is now giving him at total of $120 per month. X said to manage the situation his friends have to “pretend” to Mr Hua that “they are on his side” and take the money from Mr Hua to pass it onto him. X said what probably upsets him the most about the situation, is that his father “is not taking care of himself; and he is blindly trying to make me happy. X reported that he believes his father gives him money to buy food, to save and, or spend with friends. X said that he does use the money to buy snacks, clothes, go to the movies and do other activities with his friends.
X said that he and his mother, while they may not always talk, can spend a whole day in the same room together. He reported that on these occasions he plays video games while his mother is busy with other tasks. X said that he and his mother sometimes talk about his father and Court. X said, in terms of the parenting proceedings, it “worries” him that his mother has to keep going to Court. He said that he doesn’t understand why his mother has to keep going to Court when “I have told everyone what I feel and what I want.” He said that “this might sound selfish, but if it [the parenting proceedings] are about me, why does my mother have to keep going to Court? It [the matter] should be finalised.” X said that he has not been greatly impacted by the 2021 COVID-19 social restrictions. He said however that parenting proceedings never seem to end, he feels a “constant state of unease” and that he “cannot relax.”
X was observed with Ms Jiang briefly. X and Ms Jiang appeared comfortable in each other’s presence, with Ms Jiang briefly putting her arms on X’s shoulders, in a comforting and reassuring way, before leaving the room so that X could be interviewed alone by the Family Consultant.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that X appears to have a relationship with his mother that is based on mutual warmth and understanding. There appears to be a disconnect between X and Mr Hua, with X acknowledging that while Mr Hua’s actions towards him may be informed by some positive intent, they are distressing for X. In order for X to cope with Mr Hua’s actions, and the affect that they have on him, he attempts to distance himself, and disengage, from Mr Hua.
Should the Court find veracity in Ms Jiang’s description of Mr Hua’s alleged perpetration of family violence, Mr Hua’s behaviour may be underpinned by attitudes and values which often underpin family violence. Such attitudes and values can include the right to intrude on the lives others and dominate and control others, not only physically but also thoughts and feelings.
The Family Report writer stated that if the Court also finds veracity in Ms Jiang’s description of Mr Hua’s alleged past physical abuse of X, as a younger child, then this could reflect an authoritarian parenting style. Parents who perpetrate family violence are also more likely to have an authoritarian parenting style. Parents with authoritarian parenting may have high expectations of their children; expect blind obedience; and use stern discipline and punishment, which includes corporal punishment. If Mr Hua had or used this type of parenting style with X when he was a younger, then this could have undermined the foundational aspect of their relationship. Children who experience authoritarian parenting are more prone to developing low self-esteem, low self-worth; to being socially inept, shy, and unable to make their own decisions. They may also rebel against authority figures when they are older. Thus, the short term behavioural gain of obedience often sought by authoritarian parents is outweighed by the long term psychological harm children may experience.
Mr Hua alleges that Ms Jiang has also perpetrated family violence against him, however, he was unable provide a clear description of this alleged family violence. Other than alleging that Ms Jiang used to hit him, he was unable to provide information as to the type, duration, frequency, or impact on X. This was in contrast to Ms Jiang’s description which was detailed, and in relation to Mr Hua’s intrusive and controlling behaviour, correlated with information also provided by X. It would therefore appear that Ms Jiang’s account of family violence perpetrated against her and X by Mr Hua appears more plausible. From Ms Jiang’s description of Mr Hua’s behaviour, it would appear that his behaviour is impacting Ms Jiang and X’s daily lives and impacting their psychological, social, and emotional health; and it is also impacting on X’s development.
Mr Hua alleges that he can recall Ms Jiang hitting X, however, whether this was the case or not, Ms Jiang and X appear to have a warm and trusting relationship. This indicates the likelihood that the foundations of their relationship has been built on warm, attuned, and nurturing parenting.
X presented as a young person who is able to reason through his own thoughts and feelings and well as consider others. Children and young people usually develop these skills through their interactions with a parent, who is authoritative, or warm, attuned, and nurturing in their parenting. Children who are raised by authoritative parents are more likely to become independent, self-reliant, socially accepted, academically successful, and well behaved. They are less likely to report depression and anxiety and less likely to engage antisocial behaviour.
In light of the above, it is therefore concerning that Mr Hua’s behaviour has the potential to deviate X from a healthy trajectory. Each of the parents have expressed a concern about X’s academic development. Each of the parents, however, appear to have addressed their concerns differently, with Ms Jiang’s approach, as reported by Ms Jiang, appearing to be the most appropriate and helpful to X. Ms Jiang appears to have tried to help X with his academic development by trying to understand and make sense of X’s experiences, wishes, and feelings in order to support him.
Ms Jiang has reflective parental functioning, as she appears able to reflect on her own internal psychological and emotional experiences as well as well as those of X. However it does appear to be the case that Ms Jiang’s functioning in this respect is currently limited by the alleged family violence she has continued to experience. Although Ms Jiang reported that she attempted to resolve this problem in 2019, by seeking the assistance of the police, this was not successful. Ms Jiang reported that she found following the making of the injunction against Mr Hua on 25 November 2020 there was a decrease in Mr Hua’s intrusive and controlling behaviour. However from the information provided by Ms Jiang, this behaviour has continued at a level, which continues to affect Ms Jiang and X’s health and wellbeing on a daily basis. Ms Jiang previously reported that she did not have a copy of the Order made on 25 November 2020; and a copy has now been provided to her. It is hoped that as a result she will feel more empowered to contact the police to have Mr Hua removed from her property.
Despite Mr Hua’s reported concerns about X’s academic progress, his behaviour is currently putting X’s academic development and progress at risk. As Ms Jiang reports that Mr Hua is unable, or unwilling, to consider any ideas other than his own, it is unlikely that this problem can be resolved any other way, other than Ms Jiang contacting the police and having Mr Hua removed from her property. While this may not solve the problem of X being approached by Mr Hua while he is travelling to and from school, it will hopefully enable X to attend school during school hours. While’s X situation may be atypical in terms of that he is not a school refuser, he has already mentioned that as result of Mr Hua’s behaviour sometimes he does not feel like to going to school. The impact of X’s absenteeism from school puts X at risk in terms of diminishing his potential future opportunities associated with poor school results. It also puts X at risk of developing some of the difficulties that school refusers may experience such as anxiety, low self-worth and a sense of disconnection to school, teachers, peers; as well as future problems such as accessing further education and employment.
Mr Hua’s current behaviour appears to be also impacting on X’s social development, including his ability to join his friends in shared activities or play sports in a timely way. X appears to experience mixed feelings towards his father, which includes feelings of embarrassment, protectiveness, shame, and guilt, which as his age and stage and development may prevent him focusing on, and moving through, the developmental tasks that are important at his age. Furthermore, adolescence is a time when young people can be sensitive to the views and opinions of their peer group and his father’s presence outside, and on the way to and from, school for X has a direct impact in terms of how X is able to engage with his peer group. X appears to be a psychologically and emotionally well-adjusted person; however, he, himself, is able to identify the taxing effect his father’s behaviour is having on his social, psychological, and emotional health and wellbeing and his educational needs.
X, at his age and stage of development, should not be in the position where he is having to adjust his routine and lifestyle to manage the effects of his father’s behaviour. It would therefore be in X’s best interests if Ms Jiang is able to use the current injunction in place, as part of the Court Orders made on 25 November 2020, to reduce this current stress in X’s life where ever possible to give X as much space and opportunity as possible to focus on the developmental tasks that are important at his age, which include focusing on his education and engaging freely with his peer group, in order to reach his full potential.
Further to this, in light of X’s age and maturity, and the context in which he expressed his views, it is recommended that the Court give weight to X’s current wishes and feelings not to spend time with Mr Hua currently. It is therefore recommended that sole parental responsibility is allocated to Ms Jiang; that X live with Ms Jiang and that orders are not made for X to spend time with Mr Hua. It is also recommended that the Court makes an injunction until X is eighteen years of age that Mr Hua is restrained from approaching Ms Jiang and X at home and from approaching X at school and any activities he attends. It is recommended that this injunction also includes X’s travel to and from school and any activities he attends.
The Family Report writer gave oral evidence.
Counsel for the ICL drew the Family Report writer’s attention to her recommendation that the Court put in place certain restraints against the father, including a restraint that the father not approach the child at school and this evidence was given:
MR REEVES: Beyond embarrassment, is there some other effect on [X]that you can identify which makes you think these restraints are necessary?
[MS E]:It would hinder [X] in terms of not only attending events with his peers or extracurricular activities or schooling, but also his ability to thrive in those environments. Developmentally, he’s of the age where his growing independence is extremely important and that should not be compromised in any way. Both his attendance and his ability to feel comfort. And, also, not to have any lingering effect of discomfort. So if he’s on his way to school and his way to school is interrupted by his father, not only during that time that he could be emotionally or psychologically affected, but that could linger with him for the rest of the school day, affecting his ability to fully participate in school and with his friends.
In relation to the issue of parental responsibility, this evidence was given:
MR REEVES: I see. So in your view, if the parents had shared parental responsibility, would they be able to make joint decisions in respect of [X]?
[MS E]:No, they would not.
MR REEVES: And would the very fact of them being required to make joint decisions have a deleterious effect on [X]?
[MS E]:Yes, it would.
Counsel for the father questioned the Family Report writer about her not having interviewed the father for the Family Report. The Family Report writer stated that she had interviewed the father for the earlier CIC on 22 February 2020 and this evidence was given:
MR MANDO: Yes. I don’t disagree with you that you probably tried to contact [Mr Hua]. But, because you weren’t able to speak to him, you would have to agree with me that that would be a problem in relation to your report, wouldn’t you?
[MS E]:It – yes. It wasn’t ideal.
MR MANDO: Yes. And it’s the case – so did you try to reschedule an interview with [Mr Hua]?---
[MS E]:Yes. I will just have a look at my report. I made many attempts to schedule an appointment with him.
…
MR MANDO: Why didn’t you wait until you were finally able to interview [Mr Hua] before you issued your report?
[MS E]:Well, after making several attempts to contact [Mr Hua], he didn’t appear able to understand the process. So it was quite clear that an interview wasn’t going to occur.
The Family Report writer confirmed with counsel for the mother that documents reviewed by her for the purpose of information for the Family Report included the father’s affidavits filed 6 September 2019 and 9 October 2020. She confirmed that another document reviewed by her was the contents of her CIC Memorandum dated 22 February 2020.
The Family Report writer elaborated upon paragraph 54 her Family Report which had stated, inter alia, that it was concerning that the father’s behaviour had the potential to deviate the child from a healthy trajectory, and stated:
MR GALAPO: And what do you mean by that exactly? What did you mean when you wrote it?---
[MS E]:What I mean – what I mean by that is [Mr Hua]’s behaviour is not responsive to [X]’s emotional needs. And, from that perspective, he is being intrusive and is being emotionally harmful by preventing [X] – he’s constraining [X] from doing the things that he developmentally should be and needs to be doing at his age and stage of development. So as I said earlier, going to school, achieving in school, passing exams. He has a focus on his schoolwork and the things that he is good at. Apparently, he’s very good at art. Being happy, growing, being with friends, just having freedom of movement is very important for his age.
The Family Report writer elaborated upon her paragraph 57 of the Family Report in which she had stated that despite the father’s reported concerns about the child’s academic progress, the father’s behaviour was currently putting the child’s academic development and progress at risk, and stated:
MR GALAPO: What do you mean by that, [Ms E]? What did you mean?
[MS E]:Yes. What I specifically mean by that is [X] spoke about, for example, not being able to leave home to go to school in the morning for up to – from my memory, for up to two hours because [Mr Hua] was present. That that is a huge amount of time to be missing from the school day. And he – [X], I recall, said something about it doesn’t make your school record look good. So even [X], as a young person, was really disappointed that that was happening to him. So this is a young person who clearly wanted to go to school and [Mr Hua]’s behaviour is actually preventing him from going to school. That in and of itself, as a very simple piece of behaviour, is very concerning.
MR GALAPO: Thank you. And that would be corroborated or is consistent with paragraph 58, where you say:
[Mr Hua]’s current behaviour appears to be also impacting on [X]’s social development, including his ability to join friends in shared activities or play sports in a timely way.
Is that correct? Is that similar to what you’ve discussed just?---
[MS E]:Yes, that’s correct. And, as I think I’ve already mentioned, not just the physical constraint. It’s the subsequent impact on that and the emotional impact on [X]. His social development as well, psychological development, his educational development, his opportunity to achieve the best he can in school so he can have the best life opportunities.
The following evidence was given by the Family Report writer in relation to paragraph 58 of her Family Report where she had stated that the child appears to be a psychologically and emotionally well-adjusted person, however the child himself is able to identify the taxing effect his father’s behaviour is having on his social, psychological, and emotional health and well-being and his educational needs, and stated:
MR GALAPO: Can you just elaborate a bit more about why you said that?---
[MS E]:I think [X] is of – I noticed a change in [X] from when I did the Child Impact Report to the Family Report. He had emotionally and psychologically matured. In this report, he was very angry at his father. In the Family Report, he was able to understand – he felt – he felt some distress about his father’s behaviour for his father’s sake. However, that even compromises [X] further because it’s putting a responsibility on him to worry about the adults in his life when he should be free to live his life and not have to make adjustments to his life to meet the needs of the adults around him or even be emotionally impacted about that. So have to adjust his life to not go out and have to stay home or do the things that young people within his social group are doing. So he was straying from that. And then the effect on his emotional and psychological state of knowing that he then had to run away, avoid his father, the multiple emotions that he would be feeling, plus the fact that he spoke about the fact that his father – that he recognises that his father is trying to help. But he also recognises that his health is not functional. So that causes him distress, shame, and embarrassment as well. And the fact that his father then also engages within his peer group is doubly shaming for him.
6.The Family Report writer elaborated upon her recommendation that the current interim injunction against the father remained in place giving this evidence:
MR GALAPO: And it goes on. Can you elaborate a bit more about why you believe this? Why you believe this?---
[MS E]:It takes the responsibility away from [X]…It takes irresponsibility away from [X] because he’s not having to manage the situation or any decision making. When orders are made and the adults follow them, it’s there; it relieves that burden from the child. It was also a practical solution as well because it did appear that they did have an effect. That the child (sic father) did abide by them to a certain extent.
MR GALAPO: So according to you…it’s very important that the injunction stays in place, correct?
[MS E]:Yes.
The Family Report writer commented upon her recommendation paragraph 60 of her Family Report that the Court give weight to the child’s current wishes and feelings not to spend time with the father currently, giving this evidence:
MR GALAPO: Why do you say that? Is it his age? Is it more his maturity? Is it both?
[MS E]:Yes, it’s his development. So he was able to look – he was – he certainly seemed to have moved away from that egocentric kind of development that adolescents often sit in for a period of time. So he was quite mature. And so the fact that he was able to consider everything and still identify that his father’s involvement in his life at that time, unless it changes, was having a detrimental effect on him.
The Family Report writer gave the following evidence relating to her recommendations in paragraph 62 of her Family Report relating to certain restraints upon the Father:
MR GALAPO: And regarding the injunction, you’ve actually – in paragraph 62, you’re recommending that the Court make an injunction that [Mr Hua] is restrained from approaching [Ms Jiang] and [X] at home and from approaching [X] at school and any activities he attends. And also, that he’s restrained from approaching [X] while he’s travelling to and from school and any activities that he attends. And that should stay in place until [X] is 18. Can you just also explain a bit more about why you’ve said that, why you’ve recommended that?
[MS E]:Well, in addition to the reasons I’ve said, which is the burden on [X] should be lifted for having to manage the adults in his life and the need for him to have emotional and psychological space and eating to develop and have the best outcomes possible, the other flip side of that is, if [X] is given the best opportunity to develop with the best outcomes, then as a young adult or as an adult, he will actually be in a better place to have some type of relationship with his father, even if that is on his own terms, rather than him have all of these negative impacts happen to him now. He doesn’t have the best opportunity to grow up to be a functional, healthy adult who is able to make his own decisions, keep himself safe, and know what a healthy relationship is. In that way, [Mr Hua] would have a better chance in the future to have some kind of relationship with his son. Whereas if he continues to intrude on his life now, it will continue to create problems, not only for [X], but also in the parent-child relationship.
MR GALAPO: So essentially, what you’re saying is that, in the child’s best interest, it would be detrimental if the father continues intruding on his life for at least, you know – in that year or year and a half until he becomes 18 years of age, if there’s any issues with the intrusion now, it will actually backfire against the father because [X] will have a lot of resentment towards the father, correct?
[MS E]:Yes, absolutely.
The Court accepts the evidence of the Family Report writer subject to any contrary view of the Court, whether express or implied, as indicated below under section 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). Section 60CC (2A) provides that in applying the primary considerations (the meaningful relationship and need to protect primary considerations) the Court should give greater weight to the need to protect primary consideration (and the Court should state, that in this parenting case, it does so).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.
Under section (4) of section 61DA of the Act, the above presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The best interests of the child
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The child’s primary attachment is to the mother; the mother has been his primary carer since about March 2019.
The child’s former relationship with the father has deteriorated and is fractured. The child is reacting adversely to unwanted harassing and intrusive behaviour of the father towards him; such unwanted and intrusive behaviour is referred to by the child and the mother to the Family Consultant at the CIC, and is referred to by the child and the mother to the same Family Consultant in the Family Report. The Court observes that the child has spent little time with the father since at least the commencement of these proceedings in 2019, whilst remaining living with the mother.
The Child may prospectively benefit from having a meaningful relationship with the father but only when the child is ready to begin the development of such a relationship.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court finds that after 24 March 2019 and up to about late 2020 the father perpetrated family violence against the mother comprising stalking behaviour when the father would come and shout outside her home, and also through the father sending abusive voice messages to the mother; this unwanted behaviour of the father caused the mother to be anxious and afraid.
The father lacks significant insight into the effects of this family violence perpetrated against the mother. In particular, he lacks significant insight into the adverse emotional effect upon the mother that this violence has caused her.
The Court is not persuaded, on the balance of probabilities, that the father has perpetrated physical family violence against the mother or the child.
The Court is not persuaded, on the balance of probabilities that the mother has previously perpetrated family violence against the father as alleged by him.
The Court finds that the mother has not neglected the child, through her parenting of him, as alleged by the father. To the contrary, she has provided quite satisfactory care of the child and has historically sought to appropriately parent the child through attending courses and attending upon psychologists.
The evidence of the Family Report writer is consistent with the above views of the Court.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is now aged about 16 years and 8 months and will turn 17 years in 2023. Significant weight should be attached to the views of the child. The child had presented well to the Family Report writer. The Court accepts the statements of the child to the Family Consultant at the CIC, and by the child to the same Family Consultant for the Family Report, all in relation to the father’s unwanted harassing and intrusive behaviour towards the child.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has been making major long-term decisions for the child. The father has sought to take such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties appear to have maintained the child whilst he was in each parties’ respective care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Not applicable.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother has such capacities.
The father lacks capacity to provide for the child’s emotional needs; the father’s unwanted harassing and intrusive behaviour towards the child (such behaviour as recounted by the child and mother to the Family Consultant and later by them to the Family Consultant for the Family Report) has caused the child stress and embarrassment and has had adverse effects upon the child’s social and educational development. The Court refers to the detailed evidence of the Family Report writer in this context which it accepts.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the meaningful relationship primary consideration and additional considerations under section 60CC(3) above.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the meaningful relationship primary consideration and additional considerations under section 60CC(3) above.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The evidence before the Court relating to past ADVOs against the father was left in a somewhat unsatisfactory state. There was a paucity of documentary material. An ADVO was made against the father for the protection of the mother in 2016 by consent and without admissions for a short term of six months. The father asserts that a further ADVO was made against him but it is unclear when that was made. The father was jailed for about a month but it is unclear as to whether that was by reason of an alleged assault upon the child or by reason of his breaching an ADVO. On 1 November 2016 the father’s conviction appeal for assault occasioning actual bodily harm was upheld in the District Court of NSW, however, the conviction appeal against the contravene prohibition/restriction in AVO (domestic) was dismissed, and the father received a section 10A conviction with no penalty imposed. An ADVO made on 15 April 2016 was revoked. The Court is not satisfied on the balance of probabilities that the father improperly requested the mother and child to change their testimony as alleged by the mother.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court is of the view that the Court’s proposed orders, as discussed above under the meaningful relationship primary consideration, would be least likely to lead to the institution of further proceedings in relation to the child, as compared to the father and mother’s proposed orders. In this context, the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental Responsibility
It will be in the best interests of the child that the mother have sole parental responsibility for him.
Since at least about March 2019 the mother has been the child’s primary carer. Since at least the commencement of these proceedings in September 2019 the child has not spent significant time with the father. Again, on 25 November 2020 this Court made interim restraining Orders against the father under section 68B of the Act restraining him, inter alia, from contacting or attempting to contact the child and mother.
Should the Court make an order for equal shared parental responsibility, as proposed by the Father, the parties would effectively be required to reach agreement, in a timely fashion, in respect to major long-term decisions to be made for the child relating to his care welfare and development. Should the Court make such order proposed by the father, there is a significant risk that the parties will experience conflict in endeavouring to reach such agreement, and to which the child would be exposed to his detriment. There is a possibility that if the parties have equal shared parental responsibility for the child the father may again agitate a change of school for the child, particularly if he perceives that the child is Internet usage is excessive, and which would result in potential conflict and disruption to the child’s last year of schooling.
Further, it is likely that such conflict will lead to the mother experiencing further significant stress and anxiety and thereby a reduction in her parenting capacity for the child. The Court refers to its section 60CC discussions above as to adverse unwanted and harassing behaviour by the father towards the mother and child. The parties’ ability to communicate with each other in a productive fashion in relation to the child is non-existent. There has been interim restraining orders of this Court in place since 25 November 2020 restraining the father from, inter alia, approaching, contacting or attempting to contact the mother and/or the child.
The ICL, supported by the mother, proposed orders that the mother have sole parental responsibility in relation to obtaining an Australian passport for the child (see proposed orders 5 and 6 in the ICL’s proposed Minute of Final Orders). These proposed orders were opposed by the Father. The Court is of the view that such proposed orders will be in the best interests of the child. Whilst there is no express evidence from the mother that she and/or the child intend to travel overseas, there is evidence in the mothers Parenting Questionnaire filed 30 November 2021 that the child speaks with the maternal grandmother in China about two times a week. The child will turn 17 years of age in 2023 and his schooling will finish this year. The mother, who was born in China, has lived in Australia since about 2005. She presently works as a health worker. The Court would assess that there is probably some prospect that after the child’s schooling finishes at the end of 2023 he may wish to, for example, visit his maternal relatives in China with the mother. The Court would assess from the evidence before the Court that there is a significant risk that if the mother has to obtain the father’s agreement for a passport for the child prior to his reaching 18 years of age the father will not be cooperative. The Court would assess that if the child was to travel with the mother overseas to China for a visit to the maternal relatives, for example, it is likely that the child and mother would return to Australia in a timely fashion. In this context, the Court observes that the child has not spent time with the father for some considerable time now, in accordance with his wishes.
Proposed restraining orders against the father under section 68B of the Act
The mother and ICL effectively seek a continuation, but now on a final basis, of the previous interim section 68B injunctive restraining orders made against the father for personal protection of the child and the mother and made on 25 November 2020. It will be appropriate to make orders for that injunctive relief for the welfare of the child pursuant to section 68B(1) of the Act. In this regard, the Court refers its recitation of the evidence and to its discussions above under the section 60CC primary and additional considerations, and again, accepts the evidence of the Family Report writer.
The Court finds that despite the interim restraining Orders of 25 November 2020 imposed against the father, the father has attended the mother’s home, knocked on her door and left food, and he has approached the child outside his school and talked to the child.
Again, the Court does not accept the father’s oral evidence to the effect that after the Court’s interim restraining Orders of 25 November 2020 the parties had reached an oral agreement that the father could bring certain food items for the child to the mother’s home, and the Court refers to its discussion of this aspect of the father’s oral evidence previously in these Reasons.
Father’s proposed miscellaneous parenting orders
Again, the parties have agreed that the child should live with the mother, and that the child should spend time with the father in accordance with his wishes. As discussed above, the Court proposes to make final orders relating to the mother and ICL’s proposed section 68B injunctive restraining orders against the father preventing him from, inter alia, contacting the child or mother, or attending upon the child’s school or attending any extracurricular activities attended by the child, unless agreed to in writing between the parties. Accordingly, in relation to the father’s proposed orders 6, 7, 9, 10, 11, 13, 14, 15, 17, such proposed orders will not be in the best interests of the child they being significantly inconsistent with the parties agreed proposed orders and the Court’s proposed section 68B injunctive restraining orders against the father.
As to the father’s proposed order 8, relating to the utilisation of the “Microsoft Family Program to control the child’s Internet video gaming addiction”, such proposed order will not be an order in the best interests of the child. The Court does not accept that the child has such an alleged addiction. In any event, the Court accepts the mother’s evidence that the child is a teenager now and she can see that the child can make decisions on his own about his education, and that she continues to encourage the child to seek a good education. And further, and in any event, the Court finds that it is likely that if the father’s proposed order 8 is made, there is a significant risk that the father would seek to make contact with the mother and/or child if he perceived that the child was playing Internet video games excessively and which would likely lead to conflict, and anxiety and stress in the mother and child.
The Court should add at this point that any conflict that might occur between the parties or between the father and the child, or any unwanted behaviour by the father towards the child (as discussed previously in these Reasons), would carry the significant risk that the prospective restoration of a positive relationship between the child and the father would be put in jeopardy.
As to the father’s proposed order 12, that the father be permitted to obtain from the school copies of the child’s school reports, and other documents and information, such a proposed order will not be an order in the best interest of the child; if such order was made a significant risk would arise that the father would seek to make contact with the mother and/or child if he perceived that the child’s schooling performance was unsatisfactory and which would likely lead to conflict, and anxiety and stress in the mother and child.
SUMMARY
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the Child to make the following final parenting Orders:
1.The child X, born in 2006, (“X”) shall live with the mother.
2.X shall spend time with his father in accordance with the views as expressed by X, with both parents to do all reasonable things to facilitate such time.
3.Pursuant to sections 68B(1)(a) and 68B(1)(b)(i) of the Family Law Act 1975 (Cth), the Court grants an injunction for the personal protection of X and the mother, hereby restraining the father from:
(a)Approaching, contacting or attempting to contact the mother and/or X except as otherwise provided in the Orders or otherwise agreed to in writing between the parties;
(b)Entering or attempting to enter any place where X attends school, after school care or vacation care, including travel to and from school;
(c)Entering or attempting to enter, or attending at any extracurricular activity attended by X;
(d)Assaulting, molesting, harassing, threatening or stalking the mother and/or X.
4.The mother shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for X and for this purpose, pursuant to sections 11(1) and (2) of the Australian Passports Act 2005 (Cth), these Orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X, born in 2006.
5.The mother shall hold X's passport upon it being issued.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 23 February 2023
0
0
0