Huo & Zexian

[2023] FedCFamC2F 491

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Huo & Zexian [2023] FedCFamC2F 491

File number(s):	PAC 2579 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	15 March 2023
Catchwords:	FAMILY LAW – PARENTING – Application in a Proceeding - where there are allegations of sexual touching – where the application was adjourned
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 4, 60CC, 60CC(2A), 69ZN
Division:	Division 2 General Federal Law
Number of paragraphs:	16
Date of hearing:	15 March 2023
Place:	Sydney
Applicant	In person
Solicitor for Respondent	Ms A Di Marco

ORDERS

PAC 2579 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HUO Applicant
AND:	MR ZEXIAN Respondent

order made by:	JUDGE STREET
DATE OF ORDER:	15 MARCH 2023

THE COURT ORDERS THAT:

1.The interlocutory application is adjourned for hearing at 10:00am on 1 May 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

2.The Applicant Mother is restrained from permitting;

(a)Mr B from coming into the physical presence of X (M, DOB: in 2019) (“the Child”);

(b)Mr B staying at the same premises whilst the Child is at those premises;

(c)Taking the Child into a location where Mr B would have physical contact with the Child.

(d)The conduct of video and/or audio communications with Mr B, including by WeChat, within the physical presence, in the same room, or a place where it may be heard by the Child.

3.If possible, an urgent further Child Impact Report be prepared by Ms C, or another suitably qualified person, to be completed at least seven (7) days prior to the above hearing.

4.Leave is granted to both parties, and the ICL, to file and serve a further case outline seven (7) days prior to the hearing.

5.Leave is granted to the Respondent Father to file and serve any updating affidavit material in support of the interlocutory application fourteen (14) days prior to the hearing.

6.Leave is granted to the Applicant Mother to file and serve any further updating affidavit material ten (10) days prior to the above hearing.

7.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.

8.Leave is granted to the parties, including the ICL, to have photocopying access to the materials produced on subpoena, subject to any proper notice of objection.

9.Both parties are not to the discuss the subject matter of the proceedings with the Child and, other than to the extent of providing consolation or comfort, neither party is to discuss the subject matter of the ADVO with the Child,

10.Liberty is granted to apply on 2 days’ notice.

THE COURT NOTES THAT:

A.The Court requests the solicitor for the Respondent Father to contact Legal Aid to emphasise the importance of the accelerating the appointment of the ICL, pursuant to Order 1 made by this Court on 6 December 2022.

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 Huo & Zexian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET

1. This is an application under Part VII of the Family Law Act 1975 (Cth) (the “Act”) in relation to an interlocutory application brought by the father following reporting of allegations of sexual abuse of the child X, born in 2019, who is approximately aged three years’ old.  The interlocutory application was brought on urgently seeking to have the child relocated into the care of the father.  The father in fact withheld the child contrary to Court orders, but returned the child as a result of attendance by police. The application was listed today for an interlocutory hearing. 

2. The Court made orders last year on 6 December 2022 for the appointment of an Independent Children’s Lawyer (“ICL”).  Most unfortunately that ICL appointment does not appear to have been processed.  It is not clear to the Court why there was the delay in that processing.  The Court does not, on this occasion, have the benefit of the ICL.  The mother has asked the Court for more time and for the benefit of the input of the ICL.

3. The nature of the allegations that have been raised are of a very serious kind in relation to a person who the Court now understands to be the current husband of the mother.  The current husband of the mother has been made the subject of an order by the Department of Communities and Justice to prevent him going near X.  The Court granted leave for the filing of subpoenas and subpoenaed material has been produced by the Department of Communities and Justice.  That material is one which the Court has been taken through by the solicitor for the father in seeking to oppose an adjournment of the proceedings, raising with the Court the content in; Exhibit C on pages 49, 57, 58 and 61 and also in relation to an entry on 18 February 2021, page 3, and Exhibit B, pages 10, 23, 18 and 19. 

4. Ms Di Marco, in particular, contends that the child is the subject of imminent risk and alleges that the application is one that should be heard and not adjourned, and/or if there was to be an adjournment it should give rise to the child being placed into the care of the father.

5. It is the case at page 49 in Exhibit C that there was a question asked - "Is there a severe condition or pattern of the parent care or behaviour that presents an imminent risk of psychological harm?" The answer posed was "Yes."  The report of the Department of Communities and Justice is not a report that addresses the ultimate issues of the best interests of the child nor the psychological impact or adverse psychological impact that may affect the child by a relocation of the parent with whom the child is living. 

6. The assertion of psychological harm appears to be founded on assertions of the mother not believing the child in relation to the allegations concerning her partner in what was described as reinterviewing the child and alleged coaching.  The evidence in relation to the alleged reinterviewing appears to be expressed in a conclusionary form, albeit it is apparent that the father himself engaged in the process of questioning the child as to what had occurred and it would be unreasonable to expect any parent informed of a serious allegation not to seek to ascertain what occurred.  The assertion advanced by the father is that there is a coaching and hiding of the allegations by the mother to protect her current partner.

7. That assertion does not sit neatly with the reality that the mother has indicated that she will abide the conditions that were identified in the apprehended domestic violence order, and ensure that the terms of that order are complied with and that her current husband does not come into contact with X.  Ms Di Marco has pointed out the difficulty of compliance with that order, in circumstances where it appears that the mother is dependent on her new husband and that they were living in the same premises.  The mother has, however, put on an affidavit identifying that she would prioritise the best interests of her child and that she would not let that person return at this stage.

8. There may be criminal proceedings that proceed, there may not. It is the case that the nature of the allegations are extremely serious. It is, however, the case that this is a child that was identified as having medical conditions. The allegations in relation to the sexual conduct are ones that the Court is not in a position to determine at this stage in relation to an adjournment application. The Court has obligations, picking up the principles identified in s 69ZN of the Act, to consider the impact the conduct of the proceedings may have on the child. 

9. Not to adjourn the proceedings, in circumstances where the Court does not have the benefit of the ICL’s input in this case, may well adversely impact on the child in circumstances where there is an obvious and significant potential unacceptable risk in terms of the emotional harm of being separated from his primary carer including the feelings of abandonment, rejection or diminished self-worth, even now at a very young age.  The Court has no expert evidence on those issues and what is being asked by the father in the interlocutory application is for orders that remove the child from the primary carer even be it on a short-term basis. 

10. The Court, under Part VII s 60CC of the Act, must take into account the best interests of the child and the primary considerations in relation to the child having a meaningful relationship with both parents. The Court must take into account the dominant primary consideration because of s 60CC(2A) of the Act, to give greater weight to the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The Court has taken into account the definitions of abuse and family violence in s 4 of the Act.  The Court must also take into account the additional considerations and this is a matter where there were existing parenting orders that provided for some time to be spent by the child with the father but it is apparent, from the history of the matter, that there has been ongoing conflict, particularly, in the nature of the father withholding the child from the mother, the father reporting to authorities allegations in relation to the mother of recent origin other than the subject matter of the current application. 

11. The solicitor for the Department of Communities and Justice sent a letter to the solicitor for the father that identifies a number of dot points in relation to the alleged incidents, including the assertions about reinterviewing and taking issue with the correctness of the assertions by the department.  It is not the case that the mother must accept allegations that are advanced by the father, or matters raised by the department, but must take appropriate steps as a responsible parent to prioritise the best interests of her child.  It is apparent on the evidence before the Court at this stage, on the affidavit filed by the mother, that the mother has taken on board the need to ensure that her son X does not come into contact with her husband until the matter is the subject of further determination.

12. The nature of the incident or incidents is also one on which there is content in which the mother has referred to her current husband allegedly flicking the child's penis.  The mother has then asserted that language was wrong.  It is apparent that English is not the first language of the mother.  The letter from the Department of Communities and Justice signed by the solicitor, dated 13 March, relevantly identified:

    [X] is assessed as safe as [Ms Huo] states she will abide by the ADVO despites what she believes.

13. The concern expressed by the father in his affidavit is that the mother will not abide by the ADVO or that it might come to an end.  On an interim basis, in relation to an adjournment, the Court foreshadowed that if an adjournment was granted it would put in place orders to ensure that the person in question does not come into contact with X, pending the determination of this interlocutory application before the Court. 

14. The Court is currently of the view that while there is a serious allegation of alleged imminent risk in terms of psychological welfare of the child raised by the material from the department, as well as the serious issue in respect of alleged sexual assault by the current husband of the mother, the department itself identified that X did not appear at risk and was assessed as safe, provided the mother will abide by the ADVO.  The Court intends making orders on an interim basis to ensure that the effect of the ADVO is supported by a court order.  That order, in the Court's view, best weighs and balances the competing interests in respect of the consequences of an adjournment in relation to the best interests of the child. 

15. The Court regards the risk of psychological harm to the child from requiring a changeover and handing the child over, even on an interim basis, to the father, and taking the child away from the primary carer, is a greater and more significant risk at this stage at this adjournment application, and is an unacceptable risk insofar as the Court is weighing the best interests of the child at this interlocutory stage where an adjournment is otherwise one to be determined by reference to the interests of the administration of justice.  The Court accepts that the paramount consideration, however, is the best interests of the child. 

16. For the reasons the Court has identified, the Court is satisfied, taking into account the primary considerations, that the need to protect the child from the psychological harm of a handover to the father at this interim stage where the Court has not been able to hear the interlocutory application fully, outweighs the alleged risk in relation to psychological harm to the child from the alleged coaching or reinterviewing or denial by the mother, and outweighs the risk that the Court can address by the orders that it proposes to make in respect of the adjournment to prevent the husband coming into contact with X.  It is for these reasons that the Court proposed to adjourn the interlocutory application and makes the following orders.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       15 March 2023