Kang & Bradley

Case [2022] FedCFamC1F 756

Federal Circuit and Family Court of Australia

(DIVISION 1)

Kang & Bradley [2022] FedCFamC1F 756

File number: BRC 65 of 2016
Judgment of: CARTER J
Date of judgment: 3 October 2022 
Catchwords: FAMILY LAW – CHILD– best interests of the child – best interest of child to live with the father – father to have sole parental responsibility for health and education – where there is poor parental communication – where there is a lack of parental co-operation – where the mother alleges the father has subjected her to sexual abuse – where the father and Independent Children’s Lawyer raise concerns about the mother’s mental health –  where the parties are unable to promote a positive parenting relationship – where the father fails to promote the child’s Country B language and heritage – orders made.   
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 67ZC

Cases cited:

 Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Oberlin & Infeld [2021] FamCAFC 66

Division: Division 1 First Instance
Number of paragraphs: 360
Date of last submissions: 28 July 2022
Date of hearing: 25 – 28 July 2022
Counsel for the Applicant: Jason Todman
Solicitor for the Applicant: Stolar Law Pty Ltd
Counsel for the Respondent: Russell Leneham
Solicitor for the Respondent: Sharma Lawyers
Counsel for the Independent Children's Lawyer: Karen Oakley
Solicitor for the Independent Children's Lawyer: Life Law Solutions

ORDERS

BRC 65 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KANG

Applicant
AND:

MR BRADLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

3 October 2022

THE COURT ORDERS THAT:

1.All prior parenting orders and parenting plans be discharged.

Parental Responsibility

2.The father have sole parental responsibility for the child X born 2012 (“the child”) in relation to the child’s health and education.

3.Prior to making a decision about any such issue, the father will:

(a)advise the mother in writing of the decision intended to be made;

(b)seek the mother's written response in relation thereto; and

(c)consider by reference to the best interest of the child, any such response from the mother prior to making any such decision.

4.As soon as practicable upon making a decision as to the exercise of parental responsibility, the father advise the mother in writing as to his decision.

5.The parties otherwise have equal shared parental responsibility for the child.

Living Arrangements

6.The child live with the father.

7.The child spend time with the mother at times agreed in writing between the parents and failing agreement:

(a)during school terms:

(i)each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday, commencing on the first weekend following the commencement of Term 4, 2022; and

(ii)each alternate week, from after school or 3.00 pm Thursday until before school or 9.00 am Friday, commencing on the second Thursday of Term 4, 2022; and

(iii)where the Monday following a weekend where the…

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AGLC
Kang & Bradley [2022] FedCFamC1F 756
Case
[2022] FedCFamC1F 756
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the father and the mother of a child named X, regarding the child's health, education, living arrangements, and overseas travel. The father sought sole parental responsibility for X's health and education, as well as an arrangement for X to live primarily with him, with specified visitation rights for the mother. The father also sought to delay any overseas travel for X until the child reached the age of 16. The mother, on the other hand, opposed the proposed visitation schedule and sought more frequent visitation rights. The Independent Children’s Lawyer supported the father’s proposals.

The central legal issue the court had to address was determining the best interests of the child, X, in terms of health, education, living arrangements, and overseas travel. Given the contentious nature of the parents' relationship, the court also had to consider the mother's allegations of sexual and physical abuse by the father, as well as allegations regarding the paternal grandmother's conduct towards X. These allegations were pivotal in shaping the court's determination of what arrangements would be in X's best interests.

The court assessed the credibility and reliability of the evidence provided by both parents and the Independent Children’s Lawyer. It found that the father and mother had limited communication and each parent largely operated as if the other did not exist in X's life. The court noted that the mother had made serious allegations against the father, which he denied. The court concluded that the allegations, if true, would significantly impact the living arrangements and the level of contact X should have with the mother. After careful consideration of the evidence, the court found the mother's allegations to be credible, particularly those concerning the father's conduct towards her and X. Based on these findings, the court determined that it was in X's best interests for the father to have sole parental responsibility for health and education, and for X to primarily live with the father, with specified visitation rights for the mother. The court also ruled that overseas travel should be delayed until X is 16 years old, and that the mother should not have an extended holiday period with X.

Orders

Orders of the court

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Background

Background to the litigation

The Independent Children’s Lawyer and the father ultimately sought orders that the father have sole parental responsibility for X’s health and education. They also sought orders that X live with the father, and spend three nights per fortnight with the mother, from Friday after school to Monday before school (and to before school on Tuesday if Monday was a non-school day). They proposed overseas travel be delayed until X is 16, and opposed the mother having the opportunity for an extended two week period of holidays with X.Background and procedural history The mother is 42 years old, and the father 43. The father was born in Australia. The mother was born in Country B. The mother was previously married to Mr D, whom the parties referred to interchangeably. For the purposes of this judgment, I will refer to him as Mr D. The mother and Mr D were married in Country B and came to Australia in around 2005 or 2006. The mother says she is now single. She lives with her housemate, Ms E (“Ms E”). The father married Ms F in 2019. The parties initially lived together as housemates, from around 2005 or 2006. At that time, the mother was still married to Mr D. The father asserted the parties commenced a de facto relationship in around 2008. The mother denied that they were ever in a de facto relationship. The matter has a long and complex history, with each of the parties deposing to events that well preceded X’s birth, and a number of other matters that are not relevant to the issues I must now determine. For my purposes, I do not see that I need to make findings regarding each and every factual dispute. That includes whether the parties were in a de facto relationship, and if so, when that relationship started and ended. However, I do accept that the parties were in a relationship of some kind when X was conceived in early 2012, and that relationship came to an end around late 2015. Moreover, I note that the parties have entered into final property orders by consent on 16 August 2016. For the Court to have had jurisdiction to make orders, the court – and presumably the parties - must have been satisfied the parties were in a de facto relationship at some point. The parties all urged the court to make findings regarding the mother’s allegations that the father had subjected her to sexual assaults. Findings of that nature are ancillary to the court’s obligation to make orders that are in X’s best interests. However, in this particular case it appears to me necessary to consider the allegations made. The appropriate arrangements for X are to a substantial extent, dependent on the findings I make regarding these matters. There are a number of other disputed facts which do not seem to me to impact on what orders now meet X’s best interests. I have, generally, not included matters I consider irrelevant to what I must determine in the chronology that follows.Mid-2010 hospital attendance There was an incident in mid-2010 which resulted in the mother attending at the G Hospital for assessment. The mother said the father sexually assaulted her that day and she took hold of a pair of scissors to defend herself. The father denied sexually assaulting the mother and said she was threatening to harm herself with scissors.

Evidence

Evidence Before The Court

What is clear is that the parties have engaged in such limited communication that X is growing up moving between each of his parents who operate parallel and almost entirely unconnected households. It is also plain that neither of his parents appear to have much insight into X’s home life, interests, pastimes, or activities that he shares with the other. As counsel for the Independent Children’s Lawyer put it, each parent attends to their parenting as if the other parent does not exist. The evidence Some of the witnesses appeared via Microsoft Teams. The trial was otherwise conducted in person. The mother and some of her witnesses gave evidence through an interpreter. There were no technical or other issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence that was given, including that given through an interpreter and on Microsoft Teams, and that each of the participants in the hearing was sufficiently able to participate. It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Moreover, I do note that the parties have deposed to substantial amounts of historical incidents in their material, as well as matters that are only tangentially relevant at best. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. The Mother The mother indicated in her Outline of Case that she would rely on affidavits from Ms V, sexual assault counsellor, Ms W, social worker, and Mr Z psychologist. However, the mother did not rely on those witnesses at the final hearing. The mother did rely on the following material:(a)her trial affidavit filed 1 February 2022 and her affidavit in reply filed 7 March 2022(b)the affidavits of Ms AA (“Ms AA”), Ms BB (“Ms BB”), Ms CC (“Ms CC”) and Ms E filed 31 January 2022; and(c)the affidavit of Ms E filed 7 March 2022. The mother and the witnesses upon whom she sought to rely were required for cross examination. As already noted, the mother made significant allegations against the father. Those allegations include that the father and she had never been in a romantic relationship with each other, that X was conceived as a result of the father raping her, that the father had physically and sexually assaulted her and their former flatmate on a number of occasions, that he and his family encouraged her to take out life insurance, as they wanted her dead so they could claim on the policy, and that they subjected her to ongoing verbal abuse. In her oral evidence the mother said she had endured years of torture, and that the father wanted her to “die for the sake of money”. The mother also asserted in mid-2014 that the paternal grandmother deliberately injured X, “pushing [X] away using force and his eyebrow bone was injured. It caused [X] to vomit for the next three (3) days”. She also asserted that the paternal grandmother would put her feet in X’s face when he was a baby and squeeze him, and put her toe in his mouth for him to suck. She said that the father shook X when he was only a week old, that he yelled at X when he cried, left him on cold tiles in the winter, smacked X and refused to deal with X when he was unwell. All these allegations are denied by the father and the paternal grandmother.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In about early 2015 the mother again presented to the Emergency Department at City M Hospital. The notes completed by Dr O (“Dr O”) say the mother reported thoughts of killing herself, abandoning her child, or leaving the country with her child. She was reported to have experienced intermittent depression with thoughts of suicide for years. She was recorded as having told Dr O that she did not agree with the way the father parents the child. There was no reference in those notes to the mother having been sexually assaulted by the father. The mother subsequently reported to Dr P (“Dr P”), who prepared the psychiatric assessment of the mother in these proceedings, that the father sexually assaulted her for the last time in early 2015.Separation In about late 2015, the parties argued about their finances. The father left the home and took X with him. X has remained in the father’s primary care since that time. The father and X moved into the paternal grandparent’s home. The mother said the father shouted and threatened her at that time. The mother sent the father a number of text messages suggesting she was leaving Australia, that he could retain X, she would not see X until he was 18, and suggesting she could not live anymore. The mother said these messages were not sent with her “own free will, it was sent as a result of [the father’s] actions”. In late 2015 the mother sent the father a text message saying she would leave Australia in one month’s time and would never return. She wrote:I only need see my son’s pictures and video every 24 hours until I die. I don’t need my son to take part in my funeral ceremony. The mother said this was not a genuine communication by her, but was sent to the father at the behest of a friend to “see what he does”. The mother deposed that she sent the father a subsequent message to say she was leaving Australia, but that she never meant that, but only did so to use as leverage in their ongoing property settlement discussions. She said he told her he would return the funds he borrowed from her if she signed a Binding Financial Agreement, and left Australia and never returned. The father denied making such statements. In late 2015, the mother contacted the police, asserting that the father wanted her to kill herself. The police attended at her home and she was taken to the Emergency Department at the G Hospital. She was not assessed as suffering from significant ill mental health, although she is described in the Queensland Police Service response as being depressed regarding the custody issue, and appearing a little “erratic”. The father then attended the home in the mother’s absence. The mother said the father had broken in and stolen all of X’s belongings, as well as some of the mother’s belongings. She deposed that the father deliberately called the police to undertake a welfare check on her so that she would be out of the house and he could take all those items. The father acknowledged he attended at the home. He denied having broken in to the home, as it was the home the parties shared, and he had a key to the home. He said he retrieved his own belongings and items he needed for the care of X. He denied that he left the home in a mess or that he took any personal items or personal papers belonging to the mother. In his oral evidence he said he did not tell the mother he was attending beforehand as he was concerned as to how she would react and he did not want to risk a confrontation with her.