LAC & YAU
[2018] FCCA 3851
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAC & YAU | [2018] FCCA 3851 |
| Catchwords: FAMILY LAW – Parenting – where child alienated from the father – where mother claims the father has been emotionally, physically and sexually abusive –where mother does not comply with court orders – protracted dispute as to paternity – child live with the father – father have sole parental responsibility – child spend supervised time with the mother – mother declared a vexatious litigant – orders made. |
| Legislation: Births, Deaths and Marriages Registration Act 1996 (Vic) s.17 |
| Applicant: | MR LAC |
| Respondent: | MS YAU |
| File Number: | MLC 6445 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 1, 2 February 2018 10, 11 September 2018 31 October 2018 19, 20 December 2018. |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Ms Goldsworthy |
| Solicitors for the Independent Children's Lawyer: | Danielle Webb Lawyer |
ORDERS
All previous parenting orders are discharged.
The father have sole parental responsibility for [X] (also known as [X]) born … 2006 (‘the child’).
The child live with the father.
The child spend supervised time with the mother at the Suburb A Contact Service (‘the contact service’) for up to two hours each weekend as can be accommodated by the contact service with the mother to bear any costs of same. The parties are to sign all necessary documents and do all acts and things necessary to secure a place at the said contact service. The Independent Children’s Lawyer to make the necessary arrangements. In the event the mother fails to comply with this order then there shall be no time spent with between the mother and the child save for as provided in order 5 herein.
Pending the commencement of time spent with in order 4 above, the child spend time with the mother as supervised by a professional supervisor or supervisors in the event of more than one being available, and as nominated by the Independent Children’s Lawyer with the mother to bear the costs of same. Such time or times shall be for a period of two hours and at a frequency of twice weekly, once weekly, or fortnightly dependent upon the professional supervisors’ availability.
The mother is to speak in English to the child during any supervised time spent with and no exchange of written materials of any sort is to be made.
The father may apply to the Registrar of Births, Deaths and Marriages for the State of Victoria to have his name added to the child’s Birth Certificate as the father of the child pursuant to s.17 of the Births Deaths and Marriages Registration Act 1996 (Vic).
The child previously known as [X], born on … 2006, now be known as [X].
The father apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 8, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
The father as soon as possible arrange for [X] to attend for therapeutic counselling with a psychologist or psychiatrist for a period of at least six months to include at least six sessions of counselling and to include the father at the direction of the therapist. The psychologist or psychiatrist is to be provided with a copy of the s.62G of the FamilyLaw Act 1975 (‘the Act’) Family Report by Ms B and a copy of these reasons for judgment.
AND THE COURT NOTES:
A.The father has an appointment for the child with a psychologist in January 2019.
AND THE COURT ORDERS THAT:
The mother is to provide to the father, within 14 days hereof, through the agency of the Independent Children’s Lawyer, the child’s passport to be held by the father. The father is at liberty to obtain and hold a new passport for the child upon the expiration of the current passport, or prior thereto for whatever reason, notwithstanding the consent of the mother has not been obtained.
The mother MS YAU born … 1961 also known as MS YAU also known as MS YAU also known as MS YAU her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child [X] born … 2006 also known as [X] also known as [X] (‘the child’) from the Commonwealth of Australia.
IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Airport Watch List until the Court orders its removal.
The mother and father are at liberty to receive all newsletters, photo order forms, permission forms and such other information parents usually received from the child’s school at that parent’s cost.
In the event of serious illness or injury to the child the father notify the mother as soon as practicable.
The father is restrained from allowing or permitting his wife to be referred to as ‘Mum’ in the presence of [X].
The father and mother be restrained from denigrating the other parent or discussing these proceedings to or in the presence of the child.
The Independent Children’s Lawyer meet with the child to explain the orders to her as soon as possible.
The appointment of the Independent Children’s Lawyer continue for a period of six months from this date, and then be discharged.
For a period of six months from the making of these orders, the mother is restrained by herself, her servants and/or agents:-
(a)from entering upon or being within 500m of the father’s home save with the written consent of the father;
(b)from attending upon any school that the child attends save with the written consent of the father;
(c)from communicating with the child in any way save through the agency of the Independent Children’s Lawyer and/or with the father’s consent.
The mother is at liberty to bring an application for unsupervised time spent with the child and/or for regular telephone and written communication with the child after a period of six months from the making of these orders and such application shall remain in the docket of Judge Hartnett if possible.
These reasons be made available to the contact service and any professional supervisor engaged by the Independent Children’s Lawyer.
In the event order number 10 above is rendered inoperable for any reason the father do all such acts and things to engage with Family First for himself and the child and attend upon such agency as they are referred to for a period as recommended by the agency.
Notwithstanding any other orders to the contrary and not before 17 March 2019 the father is at liberty to permit the child to spend time with the mother as agreed in writing by him and on such conditions as imposed by him.
Otherwise all extant applications are dismissed and the matter removed from the list of active cases.
THE COURT DECLARES THAT the Respondent, Ms Yau, is a vexatious litigant
AND THE COURT ORDERS THAT:
Pursuant to s.88Q(2)(b) of the Federal Circuit Court Act 1999 (Cth) the Respondent, Ms Yau, is prohibited from instituting proceedings in the Federal Circuit Court of Australia unless leave is granted to the Respondent to do so. This order shall be operative for six months.
IT IS NOTED that publication of this judgment under the pseudonym Lac & Yau is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6445 of 2016
| MR LAC |
Applicant
And
| MS YAU |
Respondent
REASONS FOR JUDGMENT
Preliminary
These reasons signal that the Court and parties have finally arrived at the end of this particular piece of very long and very difficult litigation which commenced on 12 July 2016. No doubt further litigation will follow. The proceedings involved a mother and father as litigants in person. Both were assisted by patient and professional interpreters in the Cantonese and English languages. Both parties sought Division 5 of the Family Law Act 1975 (Cth) (‘the Act’) Parenting Orders in respect of their daughter [X] born … 2006 (‘the child’).
The child is now known by the surname [X] as recently changed by the mother without the father’s knowledge or consent. Such change of surname appears both on the child’s birth certificate and on her passport.
The child was aged 10 years at the commencement of these proceedings, she is now aged 12 years. During the course of the proceedings an Independent Children’s Lawyer (‘ICL’) was appointed following orders made by the Court pursuant to s.68L of the Act. The Court was able to inform itself of the views of the child, as provided for in s.60CD(2) of the Act through the presence of the ICL, and did so otherwise through the ordering of s.11F and s.62G of the Act family reports together with additional and discrete issue family consultant memorandums.
One feature of this highly troubling litigation was the mother’s defiant contravention of orders of the Court as set out in these reasons. The Court makes these findings of contravention on the higher standard of proof, namely beyond reasonable doubt. Otherwise these reasons disclose findings of fact made on the balance of probabilities.
A further feature of this highly troubling litigation was the difficulty the mother had in controlling herself in the running of the matter. On at least two occasions security officers were required to escort the mother from the courtroom. The mother was often belligerent and out of control. She yelled, screamed, repeatedly talked over the interpreters and witnesses, and both harassed and interfered with witnesses’ ability to give evidence including coaching a witness at times in her native language. At other times in the proceedings the mother was polite and, very briefly, contained.
There is a very high level of animosity between the parties. It has caused trauma for the child, and will continue to do so. The mother hates the father. The father has no trust in, nor respect for, the mother. Both have denigrated the other in the presence of the child. The mother has gone further. She actively set about removing the father from the child’s life. Her attacks on the paternity of the child increased over time, she telling the child that the father was not her biological father. Despite non-denigration orders and orders restraining the parties from discussing the proceedings with the child, the mother continued to engage in both behaviours. The mother demonised the father to the child. The mother led the child to believe that she could not be safe in her father’s care. Set against this highly destructive of the child’s emotional well-being, behaviour of the mother, was the child’s fear of losing her mother.
The best interests of the child are paramount. In determining the best interests of the child, the Court must consider the matters set out in s.60CC(2) and (3) of the Act. The Court was mindful of these mandatory considerations when examining the evidence discussed in these reasons.
Documents
The father relied upon his amended initiating application filed 28 December 2017 and the 18 affidavits of evidence filed by him between 12 July 2016 and 17 November 2018.
The mother relied upon her response filed 27 August 2018 and affidavits of evidence filed between 30 December 2016 and 3 December 2018. They total 26 in number.
As submitted by Counsel for the ICL, much of the contents of the affidavits of the mother and father were inadmissible, being mostly irrelevant.
The ICL relied upon a memorandum dated 21 December 2016 prepared by Family Consultant Ms B; a memorandum dated 15 March 2017 prepared by Family Consultant Ms C, Senior Family Consultant Ms D and Regional Coordinator of Child Dispute Services, Ms E; the family report prepared by Family Consultant Ms B dated 19 July 2018; and a memorandum dated 8 November 2018 prepared by Regional Coordinator of Child Dispute Services, Ms E.
The Court pointed out to the father the desirability, indeed, essential nature of putting his wife on affidavit and calling her as his witness. He failed to do so until November 2018, being a time after the issuing by the ICL of a subpoena to Ms F to attend at Court and give evidence. It was agreed thereafter that Ms F would be called as the father’s witness.
Each party filed an outline of case document.
History overview
The Applicant father, Mr Lac, was born on …1959 and is now aged 59 years. He is qualified as a self-employed [occupation] but is currently in receipt of a new start allowance. The father re-married in 2014 to Ms F. They live in Suburb B in real property owned by the father which has been the father’s consistent accommodation for many years. Ms F works as a [occupation] 4 days a week and earns $800 per week. The father has one adult child from a previous relationship.
The Respondent mother, Ms Yau, was born on … 1961 and is now aged 57 years. The mother is a tenant of government housing in Suburb C, and explained to Ms B, Family Consultant, that she sometimes lives there but she also “…lives in other relative’s properties” and later that she “…stays at Suburb B”, which is her own property and “…is otherwise with the three children” in Suburb C. She has two other children, Ms G born … 1991 and now aged 27 years and Mr H born … 1993 and now aged 25 years. The mother is not currently in a relationship. The mother gave evidence that she does not earn an income and is reliant on others to provide for her financially. This evidence was implausible and is not accepted by the Court.
The parties met in 2002 and commenced cohabitation on … 2003. The parties did not marry. Following several brief periods of separation, initiated by the father as a result of the conflicted nature of the parties’ relationship, the parties separated on a final basis, on 8 May 2012. Following separation the mother and father agreed to care for the child in a fairly equal time spent with arrangement that continued until July 2016. The father alleged however that the mother was obstructive in this arrangement, in particular following his re-marriage, and as a consequence, his time spent with the child did not occur in a regular pattern, though it did occur. In July 2014, the child lived with her father, at the mother’s request, for a period of more than three months. In this time, the mother travelled to China. The mother asserted in the course of the proceedings the child had not spent time with her father until this trip, being a period of approximately two years. The Court rejects this false claim of the mother and prefers the evidence of the father, as corroborated by the child in an interview with Ms B in December 2016, wherein the child mirrored the father’s claims as to her frequent time spent with her father. The child acknowledged both that Mr Lac was her father and that she had experienced a consistent pattern of spending time with him post separation. The reference to paternity at that time was in the context of the mother seeking to inculcate in the child’s mind that the father was not her biological father. Following the mother’s return from China, the child again lived with each of her parents. The mother also gave permission for the child to travel to [Country K] with the father during Chinese New Year from 20 February 2015 to 5 March 2015.
Around this time, the mother was convicted of Centrelink fraud (on 9 December 2014) in relation to receiving parenting payments in the sum of $63,653 whilst failing to disclose to the Department of Human Services that she owned three properties from which she was collecting substantial rent. Amongst other things she was required to do a significant number of hours of community service. The mother blamed the father for the instigating of charges against her. Whilst each during the course of the proceedings, made claims of dishonesty offences committed by the other, this was the only charge and conviction recorded.
On 12 June 2016, the child was at her father’s house but in accordance with the agreement between the parties, was due to move into her mother’s care later in the morning. The mother arrived unexpectedly at the father’s home and at a time when the child and her father and step-mother were having breakfast. The father indicated that he would drive the child to the mother’s house later in the morning and at about 11.00am. This would have enabled the mother to take the child to a yum cha meal with other family members as arranged by her. The mother became aggressive whilst outside the father’s home, and commenced to shout and kick the front door. The mother also spat. The mother’s behaviour was observed by all in the house, including the child, and by the father’s neighbour, Ms P, who came out of her house to see who was causing the commotion. The child commenced to cry and asked her mother to leave. Her mother eventually did so. Subsequently, the father drove the child to her mother’s home.
What precipitated this event was the mother’s increasing concern as to the presence of the father’s wife in the life of the child, and indeed in his life. She described Ms F as “an evil woman” and sought by agreement with the father to remove Ms F from the child’s life. The mother had commenced her actions of “retribution and punishment” directed at the father and his wife as described in the report of Ms B.
The mother claimed that Ms F spoke badly of her to the child, including referring to the mother as a neglectful mother and a liar. These things were either denied by Ms F or placed in context. The father’s evidence was that he had never heard such comments as alleged being made by his wife.
The father’s time with the child ceased after 10 July 2016. Around this time, the mother changed the child’s school from School 1, Suburb B to School 2 in Suburb C. She did not consult with the father nor advise the father of this change. In fact she deliberately collaborated with her daughter, Ms G to hide from the father the whereabouts of the child. The mother placed the child in the care of Ms G, her elder half-sister. This was intended to be for some months, but became a lesser time upon the father discovering the whereabouts of the child with Ms G then requesting her mother to urgently return home from China. The mother had travelled to, and remained in, China, for about one month.
On 13 July 2016, the child sent two text messages to the father which read, “Hi Daddy, I miss you too” and “See you when I get home”. Ms G gave evidence that these texts were a subterfuge, concocted by the child, to have her father believe she was travelling with her mother in China. At the time the child was just ten years old. If this was the case, she was then already being alienated from her father by the actions of both her mother and her half-sister.
On the mother’s return from China she sought an intervention order against both the father and Ms F.
The mother made various allegations against the father. She claimed that he had tried to kill her on many occasions, and that he physically assaulted her. The father denied those allegations save one occasion wherein he pushed the mother away from him and “held her at arm’s length”. This was in the context of the mother having struck the father to the head with a metal object. Blood was coming from the father’s head as a consequence of this blow. The mother herself applied a bandage to the father’s head upon seeing the impact of her assault upon him. Despite reports by the mother that she sustained physical injuries as a result of the father’s violence, no medical or otherwise corroborative evidence, including complaints made to the police at the relevant time were before the Court. On the basis of these complaints, the mother has made multiple applications for intervention orders against the father, and on one occasion against Ms F, since the commencement of these proceedings. Whilst the mother was successful in obtaining interim, commonly ex parte orders, all intervention order proceedings have eventually been withdrawn, struck out or refused.
The mother also alleged, during the currency of the proceedings and not before, that the father had behaved in a sexually inappropriate way with the child whilst bathing her when she was approximately six and/or eight years old. The father denied that allegation. His evidence was that, like all parents with young children, a parent needs to assist his or her child in cleaning themselves on occasion. Nothing unusual or concerning occurred in the process. When the child turned seven or eight her father told her she was old enough to shower by herself and he provided her with the privacy of a bathroom to herself to enable her to do so.
As noted above, the mother challenged the child’s paternity. At other times, she declared the father could be the biological father but if so, that would be highly destructive of the child’s emotional well-being, and that the child should never have the certainty that the father was, in fact, her father. She declared the child did not want to know. The Court made a s.69VA of the Act declaration as to paternity in 2016. Nevertheless, the mother continued to indicate to the child that the Applicant was not her biological father. The mother’s undermining of the father had no boundaries. This aspect of it went to the core of the advancement of the child’s best interests. The Court determined that DNA parentage testing should occur. The Court made a parentage testing order, pursuant to s.69W(3) of the Act. The mother steadfastly refused to take the child for the testing procedure despite more than one order being made in respect of this issue. The consent of the father existed throughout. The father ultimately took the child. He filed an affidavit on 17 November 2018 annexing a report from DNA Solutions going to the child’s paternity. That testing procedure was conducted in the absence of the mother, her defiance of Court orders continuing unabated. The evidence was that there is a 99.99999991% chance that the Applicant is the biological father of the child. The mother’s response at trial was to begrudgingly accept this. She claimed, in the face of that evidence, she could not really continue to deny it.
The Proceedings
The proceedings commenced on 12 July 2016 by the father filing an initiating application for parenting orders. In the initiating application the father sought solely an order restraining the mother from removing the child from the Commonwealth of Australia. The application was abridged for an urgent hearing at which time the Court made orders requiring the father to serve the mother and noted “The Applicant has possession of the passport of the child [X] born …2006 (“the child”) and the Court has been advised that she is not eligible to obtain a Chinese passport.”
The father filed an amended initiating application on 28 September 2016 which included orders sought that the child live with him and that the child’s surname be changed from “Yau” to “Lac”. This application was prompted by the mother’s deceitful action in travelling to China and placing the child in the care of her half-sister whilst also changing the child’s school enrolment. The enrolment form at School Z identified Ms Yau as the child’s mother and Ms G as Guardian. The child was designated as living with Ms G.
On the first return of the matter after the mother had been served, and on 7 December 2016, the Court made orders, relevantly, that the mother file and serve a response and affidavit within 10 days; for the child to be separately represented by an ICL; and for the parties to undergo parentage testing. The Court wished to resolve this area of dispute with such resolution no doubt having a significant bearing on the outcome of the proceedings.
At this hearing, the mother also alleged serious family violence. As a result of this allegation, the Court declined the father’s request for time spent with the child and adjourned the matter to 20 December 2016 to afford the mother an opportunity to file her material to substantiate her claims.
Hereafter, the Court highlights those applications which followed of particular impact on the proceedings.
On 19 December 2016, the father filed an application in a case seeking the following orders:-
“1. That the honourable Court make an order restraining the responent removal of my daughter [X] from Australia, such as airport watch list.
2. That the Honourable Court make an order to the respondent cannot restraining of applicant, Mr Lac to access to see daughter, spend 3.5 days with daughter on a weekly basis
3. An order to the respondent to hand over daughter, [X]’s passport which was by police force taken by respondent on 27 September 2016 back to applicant or court’s custody of passport until final order made.
4. That the Hounourable Court make an order to the respondent to withdraw all the other courts applications which were against Mr Lac and/or Ms F.
5. That the Hounourable Court make an order that all matters ralated to my daughter [X] be deal with Federal Circuit Court of Australia only or this Honourable Court deams appropriated.”
(Errors in Original).
The matter returned to Court on the adjourned date of 20 December 2016. The parties had prior thereto (November 2016) been involved in intervention order proceedings instituted by the mother, during which the child’s passport was taken from the father and handed to the mother. The mother had not complied with the orders of 7 December 2016 in that she had not filed any material, nor had she made the child available for parentage testing. The mother indicated to the Court that she would not go ahead with the parentage testing because “[The child] would not be happy to know and is not interested in finding out who her biological father is”. The mother said further that she “respects [her] daughter’s view” and would accept “whatever decision [the Court] makes”.
The mother indicated to the Court her continued unwillingness to allow the father to spend time with the child. A s.11F of the Act assessment was ordered for the following day.
Ms B, Family Consultant conducted a s.11F of the Act Child Inclusive Conference with the parties and the child. She delivered her expert oral report to the Court on 21 December 2016. Ms B also provided a written memorandum for the benefit of the Court and the parties. Ms B’s first report was insightful and determinative. It was, relevantly, as follows:-
“Mr Lac has not spent time with his daughter since 10 July 2016, meeting only at Children’s Court (31 August 2016) claiming [X] has been prohibited from communicating with or spending time with him.
Ms Yau travels regularly to China and claims to have no income or employment.
Ms Yau presented herself as having multiple partners and that it was unlikely Mr Lac was [X]’s father. Ms Yau became irate when Mr Lac was referred to as the father and explained both she and [X] objected to parentage testing, and [X] “…did not want to know and did not care who her father was.”
… she reported that her daughter had confided in [her] sister (Ms G aged 24 years, a [occupation]) a year ago that her father had sexually assaulted her. Ms Yau claimed she only became aware of this two days ago as her daughter, Ms G, who would be aware of the requirements of mandatory reporting confided this to her. There have been no reports to Police.
[X] reported spending time with her father regularly post the parent’s separation in May 2012. From July 2016 and when Ms Yau was visiting relatives in China [X] did not spend time with her father, as she remained in the care of her sister Ms G.
… Ms Yau removed [X] from her school, [in] Suburb B and placed [her] in a new school without notifying Mr Lac. After Mr Lac identified [X]’s new school and attended there, Ms Yau sought an IVO asserting Mr Lac was following her, harassing her and attending her home in Suburb C. As part of the IVO Ms Yau sought and obtained [X]’s passport. … Ms Yau is seeking that … Ms F be restrained from coming into contact with [X]. Ms Yau made claims that in the current interview were contradicted either by [X], Mr Lac or through observation. One of these claims was that Mr Lac spoke only English to [X] whilst Ms Yau spoke only Cantonese. The reality is the converse of this and Ms Yau who has been in Australia since 1989 has a good command of English and it is she who does not speak Cantonese to [X].
There is a long history of disputation between the parents which is unlikely ever to be resolved. Both parents speak in derogatory terms about the other and to [X].
Issues included:
- Concern about [X]’s emotional well-being;
- The impact of behaviours from Ms Yau and her daughter Ms G intended to alienate [X] from her father;
- Obstruction [of] the court process by making claims about [X]’s parentage and family violence;
…
- Concerns about environmental neglect at her mother’s home (food, sleep, clothing);
- Derogation by both parents to [X] including each parent and Ms F;
- Sexual abuse allegations;
- Who [X] shall live with and spend time with.
[X] reported no arguments between Mr Lac and his current wife Ms F.
Ms Yau reported a substantial number of allegations against Mr Lac including sexual abuse allegations.
Ms Yau acknowledged she has a criminal conviction for defrauding Centrelink allegedly because either she sublet government housing whilst living in another property or she was claiming a single mother’s benefit during the time she was in a relationship;
[X] though reported a history of spending time with her father consistent with material in Mr Lac’s affidavit.
[X] identified herself as “…confused” about the parenting issues and distressed at being exposed to derogation of the other parent from each parent.
[X] made no reports of sexual abuse consistent with those raised by her mother, reporting discomfort when her father came into the shower when she was 8 years, and resentful he treated her like a baby “…because I can wash myself.”
[X] described positive happy memories with her father and expressed concern that he might be angry with her and feel “…I have betrayed him.”
… there was no evidence of [X] as being fearful of her father.”
Ms B’s recommendations were relevantly, as follows:-
“[X] needs to spend time with her father as soon as possible and to be part of a normalised parenting routine.
…
Neither parent is to speak in a derogatory manner about the other parent either directly to [X] or within [X]’s hearing;
Neither parent is to have inappropriate adult conversations with [X] including discussions about parenting matters”
Following the delivery of the oral report of the family consultant, the Court made interim orders, relevantly, as follows:-
“(1) The child [X] born … 2006 “[X]” live with the mother.
(2) [X] spend time with the father as follows:
a) on 23 December 2016 from 10am until 4pm;
b) from 3pm Christmas Day 2016 until 6pm Boxing Day 2016;
c) from 10am 2 January 2017 until 10am 9 January 2017;
d) from 10am 16 January 2017 until 10am 23 January 2017;
e) thereafter each alternate weekend from after school Friday until 5pm Sunday commencing 3 February 2017;
f) each alternate week from after school Wednesday until the commencement of school Thursday commencing 8 February 2017; and
g) as otherwise agreed in writing.
(3) The father and mother be restrained from:
a) yelling at [X] whilst she is in their care;
b) discussing the Court proceedings to or in the presence of [X] or allowing others to do so;
c) denigrating the other parent in the presence of [X] or allowing others to do so.
…
(8) The father and mother make application within 14 days to enrol, attend and complete the Parenting Orders Program at CatholicCare Suburb D and upon completion provide a copy of the completion certificate to the other parent and the Independent children's lawyer.”
The mother contravened orders 2, 3 and 8 of the above interim orders.
On 28 December 2016, the father filed an application in a case seeking the following orders:-
“1. The mother current name Ms Yau (also known as Ms Yau) together with her servants and agents are restrained from removing or attempting to remove my daughter [X] whom born on … 2006 from the Commonwealth of Australia.
2. The marshal and all officers of the Australian Federal Police and of police forces of the various States and Territories shall take all necessary steps to give effect to these orders, including all this necessary to include and retain [X] on the Airport Watch List in force at all points of arrival and departure in the commonwealth of Australia, and to maintain [X]’s name on the Watch List until final order made.
3. The mother must obey the orders made on 21 December 2016 and that orders are in force, executed by police force. Police have to follow by court orders given.
4. The mother, as soon as possible, attend and complete an anger management course from Berry Street and provide a certificate of completion to the father.
5. The mother is required to restrain denigrating the father in front of daughter and other people at anytime and anywhere.
6. The mother has to restrain harassing the former home mate, Mr K to force him given false information and as her witness.
7. The mother’s elder daughter, Ms G born on … 1991 and elder son, Mr H, born … 1993 are restrained to denigration the father in front of [X] and to restrain them at presence while changeover of [X] from the court appointed destination.
8. The father Mr Lac shall have sole parental responsibility for daughter [X] with immediate effect in order to prevent her daughter further suffer unnecessary mental abuse from them.
The orders this honourable court deems appropriate.
I want to urgent attention for the order dated on 21/12/2016 the order number 2 c), d) and e) including 2 a) and b).”
(Errors in Original)
The mother filed a response, an application in a case and affidavits on 30 December 2016. The order sought by the mother was relevantly, as follows:-
“I request the Honourable Court suspend the interim parenting orders currently in place (dated 21st December 2016) that allow the applicant, Mr Lac, to have access to my daughter, [X]. “
Time was abridged for the hearing of the father’s application in a case filed on 28 December 2016. On 9 January 2017, the Court made orders placing [X] on the airport watch list and restraining both parties from removing the child from the Commonwealth of Australia.
On that same date, 9 January 2017, the father filed a contravention application.
On 20 February 2017, the Court was informed by Counsel for the ICL that the child had spent no time with the father since the 21 December 2016 orders. The mother asserted that she had made the child available for hand-over and collection by the father inside the Suburb C Police Station (as earlier ordered by the Court in the event that Berry Street Contact Centre was not at that time available) however the child did not want to spend time with her father. That assertion was supported by a report dated 16 January 2017 from the DHHS going to a changeover that was not completed at the Suburb C Police Station. The child was allegedly too distressed and refused to go with her father. The DHHS considered “…the child seemed to be caught between the parental conflict” and that “…there was insufficient risk of harm demonstrated in relation to [X] perpetrated by the father” and there was to be no further involvement by the DHHS.
The child’s behaviour differed considerably from that observed by Ms B in late December 2016. The Court made a finding that the mother had obstructed the child’s time spent with her father; that the mother had failed to comply with orders of the Court; and that no legislatively provided for “reasonable excuse” was available to justify the mother’s actions.
The child was continuing to live with Ms G and be enrolled in School 2. On 23 January 2017, Ms G provided instructions to the school in relation to the father collecting the child and identified the child as “…very afraid of him….he is not to manhandle her or physically take her in any way…we are concerned for [X]’s safety.” Ms G directed that if the child refused to go with her father the school was to telephone the police. The school responded on 31 January 2017 advising that “…There does not seem to be anywhere in the court orders that says [X] is able to refuse to go.” On 2 February 2017 Ms G reiterated the child’s “…very real fears for her safety.”
On 20 February 2017 the Court made orders, supported by the ICL, relevantly, as follows:-
“1. The child [X] born … 2006 (‘the child’) is to spend time with her father from 9.15am on 24 February 2017 until 9.00am on 3 March 2017. During this time the father shall arrange for the child’s attendance at school save she need not attend on Friday 24 February 2017.
2. The mother or her agent is to deliver the child to the child minding centre on the 5th floor of this building being the Commonwealth Law Courts Building on William Street, Melbourne at 9.00am and the mother is to leave the building forthwith.
3. The orders made 21 December 2016 are suspended in operation from 24 February 2017 to 3 March 2017”
The Court thereafter made a further order as follows:-
“The Family Consultant, Ms D prepare a memorandum on the circumstances surrounding the changeover of the child [X] born … 2006 at the Commonwealth Law Courts building on 24 February 2017.”
The mother complied with order 2 of the orders made by arranging for her agent, the child’s half-sister, Ms G, to accompany the child to the fifth floor of the Court building. The memorandum provided to the Court as to what thereafter occurred was, relevantly, as follows:-
“Upon meeting with [X] and her sibling Ms G, [X] engaged with the family consultant in a polite, warm and friendly manner. Ms G advised that [X] had things she needed to tell the family consultant …
[X] was spoken to by the ICL and family consultant. [X] was ultimately advised that she would be spending one week in the care of her father. [X] verbally protested and stated that she did not want to and that no one was listening to her concerns. …
Upon the family consultant returning with the father into the child minding room [X] observed the father and appeared displeased, frowning and then began to pack up her bag in a frantic manner. [X] was told by the family consultant that her father was there to collect her and she immediately stated that she would not be going with him. [X] moved away from the father in the opposite direction when he attempted to walk towards her. [X] appeared heightened in her response, becoming increasingly upset and angry as the father attempted to verbally engage with her. [X] raised her voice loudly and began to protest about not being willing to go with her father predominantly stating that he is a liar and he doesn't love her. [X]’s distress was so acute and persistent that other children in the playroom were removed.
Mr Lac presented as relatively calm and cooperative throughout this encounter. He maintained a safe distance from [X] and used his voice and body language to convey a non-threatening approach. As the attempted change over extended into a second hour, Mr Lac became momentarily distressed by the emotive and strident nature of [X]’s narrative. He cried and inquired with [X] as to how she could say such things. He pleaded with her to stop. Mr Lac’s distress appeared to empower [X] and she continued with a loud and critical appraisal of her father’s parenting.
[X]’s cry turned into wail and her distress escalated, particularly in light of the fact that her emerging reality included the possibility of going home with her father. The Consultants intervened and began to try to calm [X] who by this stage, had retreated toward the door of the playroom and was attempted to leave, claiming she was being held against her will. She had a mobile phone in her hands which appeared to be registering a call. It was becoming increasingly apparent that [X] was not willing to shift from her position of protest and was becoming more oppositional as time passed. This is contrary to Consultants’ experiences of effecting changeovers where children are initially resistance to leaving with a parent.
It was decided that [X] and her father needed to leave together and steps would be taken to action this. Consultants were conscious of other children displaced by this event and [X]’s fatigue. In response to this message [X] decided to hide under the child care worker’s desk and began to again cry and protest, alternating between statements such as “you can’t make me” and “I have rights” and other comments consistent with a theme of resistance in children of this age group. …
… Ms G stated repeatedly that it would not be safe for [X] to spend time with the father and that somebody needed to help her.
…
Victoria Police arrived and it became apparent that Ms G had made a telephone call to them requesting their assistance. The family consultant spoke to the attending officers and apprised them of the situation and advised that it would be helpful for Ms G to leave the Court building. Security staff also liaised with Victoria Police officers.”
Clearly the scene that transpired on 24 February 2017 was very difficult and disturbing for all. [X] was at the time aged 10 years. She had, only two months earlier, expressed no fear of her father; had happy memories of times spent with him; and had consistently, prior to July 2016, spent significant periods of time with him, and, since August 2014, with he and his wife. She presented however in February 2017 as a child determined to get her way; aligned with her half-sister who exacerbated matters by calling the police and sending again a message to the child that she was unsafe in her father’s care, and that she could perhaps obtain the outcome she insisted upon; and intent on rejecting her father. Away from the concerning and worrying episode which occurred, and which was skillfully and empathetically handled by the Regional Coordinator and those senior family consultants and family consultants involved, numbering more than one, the child commenced to settle at her father’s home, engaging with her father and Ms F. Her mother, however, could not allow the Court orders to continue in operation. She attended at the father’s home on three occasions that afternoon. The father allowed her entry. On one occasion the mother brought the child’s favourite food, on another, an item for the child’s mobile phone. The mother was freely able to observe the child and see that she was settled. She was also not precluded from speaking to her privately. That evening, the police suddenly attended at the father’s door. Ms G had contacted them demanding the police make a welfare check on the child. This was because the child was not responding to the mother’s incessant calls and/or texts. The child told the police her father had sexually abused her. Notwithstanding the existing orders of the Court, and in a child welfare response, the police removed the child from the care of her father and returned her to the mother’s care and that also effectively of her half-sister Ms G.
On 1 March 2017, the father filed a second contravention application.
The police sought and obtained an interim intervention order against the father with the mother and child as affected family members. The child was referred for sexual assault counselling. On 14 March 2017 the father was interviewed by police and denied all allegations.
On 20 March 2017, the mother filed an application in a case. She sought the following orders:-
“That Mr Lac is prevented from spending unsupervised time with [X] pending the current criminal investigation being conducted by Victoria Police Sexual Offences and Child Abuse Investigation Team, and the current investigation being conducted by the Child Protection Service of the Department of Health and Human Services.
That the Honourable Court set aside the interim orders made 21st December 2016, pending the current investigation by the Victoria Police Sexual Offences and Child Abuse Investigation Team.
That the Honourable Court dismiss Mr Lac’s application for Contravention Orders.
That the matter be transferred to the Family Court’s Magellan Program.
This matter be listed urgently.”
On 21 March 2017, the matter returned to Court. The ICL had prior thereto issued a subpoena to Victoria Police. Those documents, admitted into evidence, indicated the Police attended the father’s home on 24 February 2017 at the request of the child’s half-sister Ms G. The Police interviewed [X] who “…disclosed having been sexually assaulted in the past” and who “…did not feel safe” staying with her father. The disclosure was that when she was showering, her father entered the shower naked and touched her on her “…chest, thighs and buttocks.” The child was taken on that day by Police to Suburb B Police Station where she made some disclosures deemed to be “…historical.”
On 1 March 2017, after having been in the care of her mother for five days, the child completed a visual and audio recording of evidence (VARE) at Region 5’s SOCIT. A further notification to the DHHS was received on 7 March 2017 asserting the child had disclosed that when she was aged 7 years old her father “…would wash her genitals”; when she was aged 8 years, “…touched her vagina”; and that she had been a witness to family violence and was exposed to pornography. The child allegedly stated she “…did not want to see her father and was frightened of him.”
As detailed in the s.62G of the Act family report prepared by Ms B, during the course of the VARE taken on 1 March 2017, the child:-
a)spelt out her surname as [X] and advised that she had been living with her brother and sister since July 2016. Her father and mother allegedly cohabitated “…for four years” and she reported no consistent pattern of spending time with her father until she was aged 7 years. [X] claimed that the mother then allowed this contact with the father “…because she is easy going and lets people have chances.”
b)reported her mother “…as being afraid” of her father and not reporting the child’s allegations “…because she does not know Australian Law.”
c)reported she chose to shower in her father’s bathroom because “…it was bigger” than her own. The child described herself as not safe with her father because he would enter the shower naked when she was taking a shower and “…then dad touched me in places he shouldn’t be touching” and she identified these as her “…breast area and vagina” and later “…my chest…no, no my breasts.” The child stated that her father “…squeezed” her vagina, and buttocks and “… his fingers softly rubbed and go in a little…he digs his fingers in a little.” The child repeatedly reported that she “…felt uncomfortable” with her father and that he “…was violent” and “…I am afraid of him.”
d)claimed the above event occurred in 2015, then later stated it commenced in June 2016 and occurred “…four maybe five times” and then possibly once more “…in January 2017.”
e)reported she told her mother about this at the time it occurred;
f)also reported seeing “…naked women” on her father’s Ipad when she was watching YouTube;
g)reported observing her father having sex with his wife … and requesting she have her own room;
h)reported that her father “…made me feel uncomfortable and I went home every time crying” and “…I felt sick at him, he affected my mental health as my heart doesn’t want to be there.”
i)reported Ms F as speaking in a derogatory fashion about the mother;
j)reported she did not see her father anymore but that last year “…I didn’t have a choice” and she reported having attended Court “…which disturbed me a bit” because “…I had to see him and I thought I had a choice like I always had.”
k)reported on a changeover occurring at the Court and described how she had been texting “…my sister” seeking advice about what to do and reported at this time she “…had been thinking about running away” but advised “…there was no hope after this text I will have to stay with him for the entire week” and she stated “…nobody was listening. I have lost everything…why is he doing this to a child who has suffered a lot.”
l)expressed some concern, at the conclusion of the interview that her father might view the VARE, then advised “…I am scared he is going to hurt me.”
Ms B (in her s.62G of the Act family report) observed the child spoke clearly and directly in the VARE interview, and neither expressed nor displayed distress or concern in the interview. There was no affect displayed that corresponded with the language used to describe the events and her feelings. When left alone in the room, on two occasions, she spent time flicking her wrist band. Ms B noted there was a rehearsed quality to the repetition of some phrases and some claims were expressed in adult language.
On 21 March 2017 and as a result of the unknown status of the SOCIT investigation, the Court adjourned the matter to a date to be fixed upon the ICL giving notice to the Court that the SOCIT investigation was complete. The Court also made an order pursuant to s.91B of the Act, arising from the removal of the child from her father’s care, requesting the DHHS to intervene in these proceedings. The DHHS identified in a report dated 13 April 2017 that given the child’s anxiety, she would be “…at risk of significant emotional harm” if she was to spend time with her father. The DHHS indicated to the Court however that it did not intend to intervene in the proceedings.
On 23 May 2017, the Court received notification from the ICL that the SOCIT investigation in relation to the allegations against the father had been completed. The father was not charged with any offence. There were to be no further investigations. There was no substantiation of the allegations.
The s.62G of the Act family report, prepared by Ms B, was released to the parties on 19 July 2017.
On 21 August 2017, the Court ordered, by consent of the father and ICL, relevantly:-
“3. The father and mother comply with the orders dated 21 December 2016, the child [X] born … 2006 (‘the child’) to recommence seeing the father in accordance with those orders this Wednesday 23 August 2017 after school in accordance with order 2(f) and time in accordance with order 2(e) commencing Friday 1 September 2017.
4. The father be restrained from bathing the child and ensure that she has privacy when she showers or bathes.
5. The mother be restrained from changing the child’s school enrolment from School 1 without written consent from the father.
6. The mother be restrained from attending at the father’s home during any time that the child is in her father’s care and is to make no phone call to the child during such time. The mother is otherwise restrained from contacting the child whilst she is in her father’s care or encouraging others to do so on her behalf.
7. Order 6(c) of the orders made 21 December 2016 be amended so that “Suburb C Police Station” is replaced with “Suburb B Police Station”.
8. The father ensure the child is not exposed to him or his wife whilst they are naked.
AND THE COURT NOTES THAT:
A. The father consents to the making of orders 4 and 8 without admitting the necessity for same.”
On 14 November 2017, the Court was informed that the child had again, not been spending time with the father as ordered by the Court. The ICL informed the Court that the child had been attending at a police station for changeover however choosing on each occasion not to leave with the father. The final hearing of the matter was brought forward to 31 January 2018, listed with priority.
On 28 December 2017 the father filed a further amended application. The father sought the following orders:-
“1. THAT the Honourable Court make an Order that the child [X] born … 2006 reside on a full time basis with the Applicant biological father Mr Lac, at Suburb B Victoria and that the mother Ms Yau be prevented and restrained from intruding or making any contact with said child by any means;
2. THAT the father Mr Lac have sole responsibility for the day-to-day care, welfare and development of the said child [X];
3. THAT in the best interests of the child and to protect the child [X] from harm, the Respondent mother Ms Yau only have four (4) hours supervised contact with said child every last Saturday of every month, and on Mother ' s Day, mother's birthday and the child’s birthday pursuant to Sections 60CA and 60CC (2)(D) of the Family Law Act 1975 (Cth) respectively ;
4. THAT the Surname and Birth Certificate of the child [X] be appropriately amended and rectified with the Registry of Births Deaths and Marriages to reflect her true identity which should legally akin with her biological father’s surname of Lac instead of her mother's Yau ;
5. THAT the Court make Order for the child [X]’s passport to be deposited with the Court for safe keeping and Orders made by the Court on 9 January 2017 be repeated and affirmed directing that the mother Ms Yau and/ or her servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born … 2006, from the Commonwealth of Australia and that the Australian Federal Police continue to give effect to the Order restraining the said child [X] from removal from the Commonwealth of Australia by continuing to place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List for a period of two years;
6. THAT based on the mother Ms Yau’s previous constant violations, non-compliance and contraventions of Court Orders the Court make Order for a Bond to be placed with this Honourable Court by the said mother to guarantee good behaviour and compliances with all future Court Orders, and last but not least
7. Any further order or Orders that this Honourable Court deems fit and appropriate.”
On 17 January 2018, the mother filed an amended response and sought the following orders:-
“1. That the Applicant’s application be struck out.
2. That the Honourable Court respect [X]’s wishes to choose with whom she resides and spends time with.
3. That no person forcibly compel [X] to live or spend time with any person against her wishes.
4. That the Applicant be required to cover any treatment and medical costs for [X]’s mental health complications and necessary psychological rehabilitation, that have occurred and are expected to occur in the future arising due to the behaviour of the Applicant.
5. That the Applicant be required to pay $250 a week direct to the Respondent’s bank account for [X]’s expenses until the end of her schooling and [X] becomes independent, as well as retrospective payments for [X]’s expenses from birth to present, a total of $148,250.
6. That the Applicant be required to pay to the Respondent the sum of $20,000 for damages arising from the present case.
7. That any orders made are based on [X]’s level of maturity, understanding, safety, welfare, health, happiness and development.
8. That the Honourable Court make any other orders deemed necessary within the United Nations Convention on the Rights of the Child.
9. That the Honourable Court ensure [X] is allowed to exercise her human right to contact whomever she chooses.
10. That the Honourable Court make Orders to maintain [X]’s current living arrangements.
11. That the Honourable Court make Orders to allow time spent between [X] and the Applicant in a public area, where [X] is willing.
12. That the Honourable Court make orders allowing [X] to travel to China to visit her ailing maternal grandfather before he passes away.
13. Any other Orders the Honourable Court deems necessary.”
The final hearing was listed for 1 February 2018. On 31 January 2018, the ICL filed a case outline. On 31 January 2018 at 11.44pm the mother emailed to the Court the following:-
“Good evening,
Unfortunately I have become unwell after receiving the case outline filed by Ms. Webb. I am experiencing a severe migraine as a result from reading the contents of the outline, and am unlikely to be able to attend the hearing tomorrow.
I seek to adjourn the hearing tomorrow until the following week, but I will endeavour to attend the hearing if my condition improves at all.
I sincerely apologise to Her Honour and the parties.”
The Court finds the purpose of this adjournment request was to continue the status quo of the child, at the election of the mother, which was no contact with her father.
The Court responded as follows:-
“Dear Ms Yau
Please be advised that an adjournment can only be granted in Chambers by the consent of all parties.
Chambers will provide a copy of your email to Judge Hartnett for consideration however please note that the final hearing may proceed and orders may be in your absence.
Further, an adjournment on medical grounds requires a medical certificate which goes not only to the illness suffered but how it precludes attendance at Court.”
In February 2018, at the commencement of the trial, the child had not spent time with her father for approximately 18 months. This was as a direct result of the mother’s successful attempts to alienate the child from the father.
On 1 February 2018, the mother did not attend at Court until the afternoon. The final hearing had commenced at 12.00pm, undefended by the mother. The interpreter for the mother had been excused from the Court at 1.00pm. At 2.28pm the mother appeared before the Court.
The final hearing continued the following day, with interpreters present to assist both parties. Following the oral evidence of family consultant Ms B, it seemed sensible for there to be a discussion aimed at one of Ms B’s recommendations, namely therapeutic counselling. The parties agreed to undergo therapeutic counselling in an attempt to repair the relationship between the father and child so that the child could spend regular and unimpeded time with her father, whilst continuing to live with her mother. The Court noted that if the mother could not ensure her and the child’s attendance at the therapeutic counselling sessions, then the application of the father, that the child live with him and have only supervised contact with her mother, would remain on foot. The mother indicated to the Court that she would “absolutely do the counselling”.
On 2 February 2018, the Court made orders, by consent, which included that the father, mother and the child attend upon a family therapist as nominated by the ICL for up to eight sessions. Ms F was permitted to attend after four sessions were completed and as directed by the therapist. The therapeutic counselling was reportable. The father and mother were restrained from discussing the proceedings with the child or denigrating the other parent to or within the hearing of the child or encouraging or allowing others to do so. The mother was to ensure that the child was able to meet with the ICL so that the ICL could explain the orders to the child. Whilst the therapeutic counselling was occurring, all previous orders in relation to the child’s time with the father were suspended.
On 9 May 2018, the Court was informed by the ICL that the therapeutic counselling had not been successful. The Court listed the matter for mention on 31 May 2018.
On 31 May 2018, the Court listed the matter for final hearing, part heard to 10 September 2018.
In May and June 2018, the mother filed applications in a case seeking that the child be allowed to depart the Commonwealth of Australia and travel to China for ostensibly a youth summer camp. On 14 June 2018, the Court heard the mother’s applications filed 8 May 2018 and 5 June 2018 and ordered they be dismissed.
On 27 August 2018 the mother filed an amended response and sought the following orders:-
“1. Remove [X]’s name from the Airport Watch List.
2. Reject all applications of Mr Lac.
3. Repeal all the mandatory contact parenting orders against [X].
4. Prohibit Mr Lac and other from using judicial or other means to force [X] to visit Mr Lac.
5. To forbid anyone, any department, including the judiciary to intimidate, oppress or force [X] to be visited by any means.
6. Mr Lac pays recourse for the maintenance costs incurred for care of [X] from 15/06/2006;
7. Mr Lac compensates [X] for all medical and rehabilitation costs, $20,000 (excluding future expenses).
8. Mr Lac reasonably compensated for the cost of Ms Yau nurturing [X].
9. Mr Lac must compensate Ms Yau for the costs associated with the lawsuit filed by Mr Lac: legal costs (including consultation fees) $20,000; loss of working hours; $2,000; mental rehabilitation expenses; $20,000 (excluding future expenses).
10. Any other compensation the Honourable Judge deems fit.
11. Any other orders in line with [X]’s wishes and are conducive to her physical and mental health and well-being and prevent her from experiencing further abuse.
12. That [X] maintains a happy, stable, safe and satisfying lifestyle and living environment that is currently experienced by [X], and to reduce any adverse effects that any changes may have on [X]’s physical and mental health.
13. Punish all participants who used or perpetrated violence against [X] according to law.”
The trial continued on 10 September 2018. At the conclusion of the evidence on 11 September 2018, in circumstances where the mother continued to raise the issue of the paternity of the child, the Court ordered as follows:-
“2. Pursuant to s.69W of the Family Law Act 1975 (Cth), the Applicant and the Respondent forthwith do all acts and things necessary to undergo a parentage testing procedure to ascertain whether the Applicant is the natural father of the child [X] born … 2006 (‘the child’). Each of the Applicant and the Respondent pay one half of the costs of such procedure. The parties are to co-operate with such testing procedure. Until further order the results of such testing are not to be provided to the child by the parties and they are restrained from conveying such results to any other persons until further order.”
Additionally, the Court ordered by consent that:-
“3. Until further order neither the mother nor father denigrate and/or argue with each other in the presence of the child.
4. The father spend time with the child on Sunday 16 September 2018 and Sunday 23 September 2018 as follows:-
a) between the hours of 11.00am and 12.30pm, the parties and child to meet at the restaurant;
b) at the restaurant known as [Restaurant] in Suburb A; and
in the presence of the mother.”
The Court noted that the results of the paternity testing were anticipated to be available for the resumed hearing.
The Court finds the mother breached the orders of 11 September 2018 on two occasions by not making the child available to spend time with her father in circumstances where she had consented to the orders, and such time spent with was to have occurred for a very limited time, and in her presence.
On 24 October 2018 the mother filed a further affidavit in the proceedings. Most of its contents were inadmissible, being irrelevant and vexatious. Attachments in the form of exhibits cannot be verified and may well be fabrications prepared by the mother and/or messages said to be from the child that are constructed by others and/or directed by the mother or her agent. In this affidavit material the mother referred to the father as “a typical sociopath” and that, as such, “lying is a typical characteristic of him”. She further referred to him in an array of terms such as “scoundrel; a very dangerous character; misplaced in logic of memory and thinking; absolutely selfish and self-centred; a typical individualist.” The evidence before the Court was further that the mother had assisted the child to research the definition of a sociopath and the characteristics of such person to discover if her father was indeed such a person. She then discussed with the child, how given that diagnosis, the child could “best relate to him”.
Additionally, the mother’s evidence affirmed 24 October 2018, and thus very recently, included that:-
a)the child thought of her father as a “total failure. [X] will not accept him”;
b)“[the child] prayed to God that Mr Lac would disappear forever. She hoped that Mr Lac would leave her world forever and never be around her again. She and the people around her would never be harassed by Mr Lac again. She thinks that only by staying away from Mr Lac [sic] can she live normally, safely and happily.”
c)“[the child] has more and more antipathy, disgust, disdain and hatred for Mr Lac. She avoids him like a plague. She refused to have any contact with Mr Lac. She didn’t want to have anything to do with Mr Lac [sic]. She didn’t want to hear anything about Mr Lac related to her. Her only hope is to stay away from Mr Lac.”
The mother, in her affidavit of 24 October 2018, described the father further in the following terms:-
“12. Mr Lac is often an uncontrollable mental disorder. He will provoke disputes without any reason and make every effort to frame others. You will never know when he suddenly stepped on his foot. He wants to destroy people who are not obedient to him, and his name is “combating the ghosts and gods.” He is always saying that others are bad people, but in fact he is the real bad person. He did so much harm to others and himself that he had no way out, but also to [X] and her friends. At present, Mr Lac is angry and disliked and resented by people all over the world. According to professionals, the best way to deal with sociopath is to stray away from them so as not to be harmed by them.
13. Mr Lac to everyone, in their words, is hell, plague, devil and ghosts. He frightened and avoided children and their parents. [X], because of the constant tracking of Mr Lac, has been in constant fear and mental suffering all day long. The matter of being tracked by Mr Lac has spread amongst classmates. [X]’s friends, who are now afraid of Mr Lac’s revenge, injury and tracing, are careful when they come into contact with [X] to avoid his trouble. They were afraid of being targeted by [X] someday. Some friends also refused to associate with [X], which made her very miserable and distressed. The children were very aware of the white cars around, because Mr Lac’s car was a white [motor vehicle]. They produced “white car phobia”. It goes without saying that Mr Lac’s stalking and harassment have seriously affected the normal life and contacts of [X] and her friends, and have a serious negative impact on their mental stability”.
As submitted by Counsel for the ICL, the mother’s evidence was often florid and overstated.
The trial continued on 31 October 2018. The mother had once again failed to facilitate parentage testing. The mother’s evidence was that the child refused to undergo the testing. At the request of the Court, the child met with the ICL and the Regional Coordinator of Child Dispute Services, Ms E, for them to explain to the child the procedure in respect of parentage testing; the order of the Court that it occur; and to seek out the child’s response given the mother’s evidence, repeatedly, that the child would not undergo such a procedure. On 31 October 2018, the child agreed to undergo the procedure, having been advised of its minimally physically intrusive nature.
The Court ordered, relevantly:-
“…
3. The father shall make payment in full at first instance of $650 to DNA Solutions and the Court shall determine the apportionment, if any, of the fee as between the mother and father prior to the conclusion of the proceedings.
…
5. The mother take the child [X] born … 2006 (‘the child’) to the location and appointment for the DNA test as nominated by DNA Solutions and ensure that the child undertakes the DNA test.”
The father made the payment to DNA Solutions. The mother failed to comply with this order of the Court in her refusal to take the child for parentage testing as arranged on 7 November 2018.
Instead, on 7 November 2018 the mother filed yet another application in a case again seeking to avoid paternity testing for the child. The affidavit of the mother affirmed on 7 November 2018 in support of that application contained much that was not relevant, was repetitive and vexatious, and as such was mostly inadmissible. However the thrust of the affidavit material was that the mother sought to:-
a)challenge the assertions of the ICL and Ms E that the child had consented to undergo the DNA testing procedure. The Court finds the child did consent as reported hereafter in these reasons;
b)convey to the Court that [X] was very afraid that “[X] is her biological father” and that such a finding would cause her “pain and disappointment”. Further, that “even if DNA paternity test has a 1% chance that [X] is the ‘natural father’, it is a crisis for [X] who needs to be protected by her mother from this terrible harm, suffering and ‘destructions’”; and
c)establish that the undertaking of the DNA paternity testing would result in the child suffering irreparable mental harm and anguish, and was not a matter consented to by the child or her mother. The mother deposed “If a DNA paternity test is not undertaken, the child might still have possible expectations. There is some benefit to uncertainty”. Additionally, the mother argued that keeping secret the paternity of the child would protect her, (the mother’s) “social reputation and social impact”.
On 9 November 2018, the Court ordered:-
“1. Until further order the mother and any agent of the mother including her daughter Ms G and her son Mr H, are not to attend upon or within 2km of the child [X] born … 2006 school, being the School 1 in Suburb B.
2. The mother is not to text, email, telephone or communicate with the child [X] born … 2006 nor direct any other person to do so until 16 November 2018 at 4pm.”
Thereafter, on 9 November 2018 the Court ordered further that:-
“1. The child [X] born … 2006 (“[X]”) spend time with the father on a continual basis commencing 1.00pm on 9 November 2018.
2. For the purposes of order 1 herein the father shall attend upon School 1 to collect [X].
3. The mother or her agents including Ms G and Mr H be restrained by injunction from coming within one kilometre of [X], which includes a restraint from being within one kilometre of the father’s home.
4. The father be restrained from denigrating the mother or discussing the Court proceedings with or in the presence of [X] or permitting others to do so.
5. The father is restrained from allowing or permitting his wife to be referred to as ‘Mum’ in the presence of [X].
6. The father is permitted to confiscate [X]’s mobile phone.
7. The father ensure that [X] continues to attend school at School 1.
8. From 16 November 2018 the mother be permitted to send texts and emails to [X] via the Independent Children’s Lawyer and not otherwise.
9. Otherwise the application in a case filed 7 November 2018 is dismissed.
AND THE COURT NOTES THAT:
A. The Independent Children’s Lawyer be at liberty to talk to the police or child protection in the event that any allegations are made in relation to the father abusing [X].
B. If there is any interference with these orders a recovery order may be issued.
C. The father be authorised to take the child for DNA testing in accordance with the orders of this Court on 31 October 2018.”
Up until 9 November 2018, the child had not spent any meaningful time with her father, apart from moments at the Children’s Court when her mother was seeking an intervention order against the father and his wife; for some hours on 24 February 2017; and during the currency of the interviews which formed part of the preparation of family reports and/or other memorandums to the Court, since 10 July 2016. The enormity of this cannot be understated. A loving father was denied a relationship with his daughter and she with him for this extraordinary period and during a time so pivotal to her development.
On 19 December 2018 the trial continued. Counsel for the ICL tendered various emails sent from the mother which demonstrated her continued hatred for the father. On 17 December 2018, the mother sent an email to the Court, the ICL, the father, the assistant principal of School 1, her best friend (for forwarding on to her lawyer in China) and Ms F, as follows:-
“dear people：
Thank Mr Lac for letting me know that this time the court forced [X] to be with Mr Lac, causing [X] to cry for three days in pain and terror. She was afraid of contacting Mr Lac and shutting herself up in the room. She dared not take a bath, fearing that Mr Lac would force her into the bathroom again. She dared not eat, fearing Mr Lac and Ms F would retaliate on her! She dared not sleep, fearing that Mr Lac would come into the room and hurt her. My poor child! Poor [X]!!!!!!!! I am very, very worried and heartbroken. This is the real abuse of [X] and her mother by the courts. Does the judge understand her fear? Do you know why everyone fled Mr Lac? Is it fear, fear, nothing else about the fear!!! last time the court forced her to spend time with Mr Lac, she cried for six hours while she was on changeover, in the Family Court Building. The court would like to review the abuse and injury to [X] caused by your decision. Judges and lawyers, is this your best interest in a 12.5-year-old girl? I never let [X] shed a tear of pain. Why did you make [X] cry? Time, time, time and time again. Why? Why? Why? Why did you let her suffer such pain and grievance? Because [X] is not your child, right? You are indifferent to her pain. You force her to come into contact with a man who has no positive effect on her growth, who frightens everyone and has a violent temper. This is abuse. You forced her to accept Mr Lac’s daily threats and threats. [X] doesn't need Mr Lac and this horrible environment. She doesn't need this horrible person and the couple who accuse her of being a liar for no reason. She doesn't need to live with a man who often threatens to report to the police to catch her. Please restore [X]’s freedom as soon as possible, let her leave the place and people that make her fearful, let her return to stability and happiness as soon as possible, let her grow up happily, healthily and safely under the selfless care of her mother. Maternal love is always irreplaceable. Deprivation of mother's love is a crime against children as well as against human beings. [X] repeatedly stressed that she needed to go back to her mother, that she didn't need Mr Lac! [X] repeatedly asked Mr Lac to let her go back to her mother. Mr Lac said that the order of the court did not allow her to return to her mother. This shows that the court is persecuting [X], not Mr Lac blocking [X]. Mr Lac’s willingness to let [X] return to her mother was unreasonably blocked by the judge. It also proves that [X] does not need Mr Lac, nor does Mr Lac need [X]. [X] didn't want to be with Mr Lac. She was scared and frightened. Did you hear [X] cry of despair? If you still have human nature, you should not be so cruel and cruel to [X]. Do you know how painful [X] is? This kind of pain can not be "abetted". Everyone who has been with Mr Lac has had a painful experience and will feel all the pain [X] feels. It is a humiliating and angry, unspeakable pain. If you are me, listen to Mr Lac’s tape and you will understand all our fears about him. You can ask all [X]’s wives, girlfriends, colleagues, who lacked this painful experience! This is [X]’s experience and natural reaction after being with [X]. Adults around us are afraid of Mr Lac, they avoid Mr Lac, and so are children. Ask judges and lawyers to stop being stubborn, to recognize Mr Lac’s real face and frightening character, and to really protect [X]’s mental health. It is the responsibility and obligation of each of us. It is very, very wrong to replace [X]’s interests with Mr Lac’s. Let [X] grow healthier and happier, not because Mr Lac exists, not because she is forced and intimidated. Free, stable, warm, friendly, tolerant and loving environment is what [X] needs. It's not like Mr Lac and Ms F, who are continually insulting, slandering and baseless slandering her mother and her brother and sister.
all the best and happy new year
from
Ms Yau”
(Errors in original).
The mother wrote a letter to the child, sent by email to the ICL on 26 November 2018, as follows:-
“Dearest [X]:
I did not get any of information from you. Can you sent me the hand write papers to tell me what happened in Mr Lac’s place? I very understand your feelings now. Just looking after yourself and keep safe always.
Always remember the glory of your family.
You have to be an excellent and independent person. You have to fight for freedom and happiness. Your name is: [X]
Love you until end of the world.”
The ICL replied to the mother on 27 November 2018, relevantly, as follows:-
“The independent children’s lawyer repeats her recommendation, also made by Child Protection that Mr Lac seek support from a psychologist for himself (including parenting advice given the difficult circumstances) and some support will need to be arranged for [X] over the school holidays.
The independent children’s lawyer will forward the below email to [X] if the mother resend it with the following deleted.
“Can you send me the hand write papers to tell me what happened in Mr Lac’s place?”
“You have to fight for freedom and happiness. Your name is : [X]”
The independent children’s lawyer suggests that Ms Yau write more appropriate messages for [X] including daily news of what the mother is doing, how her pets, brother and sister are going etc. Positive encouragement of her time with her father would also be helpful. A simple, “I hope you are enjoying your time with your father.” This would be a step in the right direction.”
On 2 December 2018, the mother sent an email to the ICL, at 3.44am with the subject line “Watch out for Mr Lac, he’s starting to get perverted”, the body of the email was as follows:-
“dear Ms G:
pls watch out for Mr Lac, he’s starting to get perverted. He told someone that he would imprison [X] until she 18 years old.
you need to save [X].
Ms Yau”
On the same day, at 9.46am the mother sent a letter to the child by email to the ICL, copying in the father and the assistant principal of School 1. It was as follows:-
“Seeing the paper you wrote, I cried for a long time, many times. Holding your letter, I refuse to put it down. My poor daughter, you’ve never been so forced to leave your mother. I can’t tolerate such cruelty and injustice. Someday I will let all the people of the world know the false faces of fairness, justice, equality, humanity and mercy in Australia, a so-called democratic country. Write your story. Write down in detail the people you meet, including their real names, positions, identities, careers, including what they do, what they say, including what you see, what your experience, how you feel, how you feel, how you evaluate etc., including good and bad, right and wrong. Let the world remember the good, criticize the bad, thank for help and praise the good. Let the good people’s descendants receive blessings from their ancestors ‘kindness, and let the bad people’s descendants repay their ancestors’ sins with their lives. This is called the “cycle of heaven’s reasons”. Pray! Use your prayers to fulfil your wishes. God and Mother are always with you.
In addition, Mr Lac insulted our ancestors. This is unforgivable.
Keep save all the time !
God and Mum always with you !
From your Mum”
On 3 December 2018, the mother filed a further application in a case. She sought to remove the child from the airport watch list to enable the child to travel with her mother to China for a trip of approximately one and a half months, until mid-January 2019. The mother required, yet again, in the same manner as her earlier application, (to take the child to China for an educational trip), that her application be heard “as emergency hearing on this matter”. This application had two purposes:-
a)to remove the child from the jurisdiction, possibly indefinitely, but certainly to effect a complete severance of any possibility of time spent with her father in the near future; and
b)to convey to the child that the father is the cause of her inability to obtain the benefit she may experience in holidaying in China.
Other witnesses
Ms B, Family Consultant
Introduced into evidence and relied upon by the ICL were two reports of Ms B, a child inclusive conference memorandum and a s.62G of the Act family report. The father did not seek to challenge the contents of those reports and nor did the ICL save the ICL sought to obtain further evidence from Ms B as to the alternative recommendations as posed by her.
Ms B’s family report of 19 July 2018 was illuminating. Unchallenged by the father and the ICL, and unsuccessfully challenged by the mother, who was disrespectful and vitriolic in her cross-examination of Ms B, the report contains expert evidence accepted by the Court. It included much that was superbly insightful, and powerful, in its astute observations of the parties and child and the causes of the parents’ conflict. Ms B accurately set out the inconsistencies in the evidence provided by the mother, the child and Ms G and in that regard also, her family report was of great assistance to the Court.
Ms B’s further oral evidence was as follows:-
“This is a child who has a warm, loving relationship with her father that has been intruded on by a multiplicity of factors, … it has been deliberately manufactured. … a child who’s growing up and very indulged … has a sense of entitlement about making her own choices. This has been encouraged as part of the alignment process. So we’ve got an angry but confused child, relatively immature, who loves her father but who knows that she cannot spend time with him. She cannot spend time with him and have a relationship with her mother, and she maintains a fear that if she sees her father, she will lose her mother. … It led me to the view that she has a dysfunctional attachment pattern with her mother, with whom she doesn’t reside and she doesn’t see on a regular basis, who’s very controlling and requires the child to demonstrate her love by supporting her mother. …
…
I’m appalled that she lives with her sister who’s her guardian and not her mother. … she is a confused and distressed child, but she’s not going to get better if we force her to move from her mother to her father, … All the information I have from [X], herself, was that she’s actually happy in the care of her father and his wife, Ms F, was actually helpful to her toward her mathematics and they did dancing. She has got memories of that time.”
When cross-examined by the mother, Ms B added further evidence as to her concerns about the mother. She described the mother as emotionally neglectful of the child and asserted she had manipulated the child such that if the child is to have a relationship with her mother, she cannot have a relationship with her father because the mother is very angry, firstly, that he left her, and secondly, that he had the audacity to marry.
Ms B said to the mother during the course of cross-examination, “I cannot rely upon the veracity of anything you say”. The Court finds itself in the same position. The mother was not a credible witness.
Ms M
Therapeutic counselling was attempted by the parties and child. This process could not be continued beyond the first visit. The child was so alienated by her mother from her father, and so placed in the adult position of decision-maker, that no benefit could be afforded to her by this process.
In particular the process was not assisted by the child being in the presence of both her parents. In the presence of her mother and/or maternal family members, the child has not been able to relate to her father in anything other than a highly dysfunctional way. She could not appear, in the presence of her mother, to have anything other than a heightened and repulsed reaction to his presence.
Ms M’s correspondence of 14 March 2018 was in evidence in the proceedings. The parties and child attended upon her on 9 March 2018 for reportable counselling. This was to be therapeutic in nature. Ms M, psychologist, concluded that “this family is not suitable for therapy of any type.” Ms M’s further evidence was as follows:-
“[X]’s behaviour at the rooms was highly disturbing. Any consultations with a psychologist for the purposes of spending time with her father are extremely painful for her and forcing her to go through these processes is, in its effect, abusive. She experiences it as a form of torture. It is possible that [X] is suffering from depression as well as having some symptoms of post-traumatic stress disorder. I recommend that she not be made to endure further counselling or report interviews for the purposes of family law proceedings and that she be left alone for the foreseeable future.
Should [X] need to speak to anyone, I recommend that she attend a school psychologist with all communications being confidential from both parents.
Neither parent demonstrated an ability to understand the child’s needs and to place them above their own. Both are vitriolic about the other. … The conflict between the parents is the most likely cause of the child’s trauma.
It was not clear who the child is currently living with. [X] and the mother provided contradictory information.
I cannot make recommendations about which parent [X] should live with.
Psychological input with this family has gone as far as it can go.
The Court will need to determine the matter of the child’s residence and spending time arrangements.”
Ms M was cross-examined by the parties as to her report. Her oral evidence was, relevantly, as follows:-
“Her mother and the father were in vicinity of each other, I think he just came to the door. The child clung to the walls, closed her eyes in a way that she just wanted to disappear. She could not cope at all with the two parents there. She couldn’t cope at all with seeing her father. It was the most extreme form of wanting to not look at someone, either because they were frightened or just simply because it was not possible for her to have – to relate to both parents in the one – in the one place.
The mother reacted really badly as well to a client that was in the waiting room who obviously was shocked by the child’s behaviour and it showed in her face. The woman said nothing, but just – she reacted to the child’s severe distress and the mother attacked her verbally and it went on for some time until she was made to stop by me.
The mother was extremely vitriolic and difficult to engage on a rational basis.
She found fault with absolutely everything. She had difficulty staying on the one train of thought …
– I think she used very, very strong language about what kind of person he is. The father – the father, on the other hand, at times appeared reasonable and sensible, was amenable, at times, to rational discussion but, again, it would end up with all the faults were with the mother and that may or may not be true, …
the relationship between mother and daughter is – is – it’s abusive in some – in some respects.
…
[X]’s current beliefs about her father are irrational and derive from the mother’s beliefs with a very strong need to please and appease her own mother. There is a degree of fear that she has and she must demonstrate loyalty to her mother. That, too, is notionally unhealthy.”
Ms M’s expert evidence is accepted by the Court.
Evidence of family consultants Ms C, Ms D and Ms E
Introduced into evidence and relied upon by the ICL was a report by Family Consultant Ms C, Senior Family Consultant Ms D and Regional Coordinator of Child Dispute Services, Ms E dated 15 March 2017 as to events which occurred on 24 February 2017. The Court accepts the evidence of the family consultants regarding the events of 24 February 2018 which are outlined in paragraph 47 above.
Regional Coordinator of Child Dispute Services, Ms E also prepared a written memorandum for the Court introduced into evidence and accepted by the Court in relation to the conversation about parentage testing between herself, the child and the ICL on 31 October 2018. That memorandum is, relevantly, as follows:-
“This interview was for the purpose of establishing [X]’s views about participating in the DNA test procedure, and for this information to be provided to the Court. …, she remained engaged and cooperative.
… when asked what she understood a DNA test to involve, she stated that it involved a blood test and that she didn’t like needles.
[X] was reassured that the most common DNA procedure does not require blood testing, and instead a mouth swab (involving use of a cotton bud) … [X] expressed relief about this, and her next question was “will this make it end”? … [X] impressed as a mature and intelligent 12 year old girl, who provided thoughtful and considered responses on the issue presented.
[X] was able to self-regulate prior to the interview concluding …”
Mr N
Mr N gave his evidence in a credible and straightforward manner. Mr N is the Assistant Principal at Suburb B School 1. He gave evidence that the child is currently the year 6 captain and “progressing really well” at school. He later added that the situation, that being implied, of parental conflict and litigation, “has caused significant strain on her”. Mr N has been present for changeovers which have occurred at the school, and at times, prior to July 2016, facilitated the child spending time with her father. Mr N reported that the child attends upon the school psychologist for confidential counselling. That engagement, as recommended by Ms M, would appear to be beneficial to the child in that she is clearly able to thrive in the school environment and perhaps compartmentalise her life to that extent.
Ms O
Ms O is the Student Counsellor and Student Wellbeing Coordinator at School 1. Her evidence was that since the child has been living with her father, she has continued to be happy with her school friends in the playground and presents around the school grounds as “giggly, bubbly, normal”. In private conversation with Ms O, the child has expressed anger and frustration about the parental conflict and her voice not being heard. Ms O described her overall as “not happy but she’s okay”.
Ms O confirmed that the child wishes to return to the care of the mother. She described her as a “very smart girl” who needs to form an acceptance of the current arrangements. In Ms O’s view she did not think it mattered where the child lived, so long as she was accepting of that arrangement.
Ms O recently carried out a risk assessment with respect to the child as the child told her that she “thinks about dying”. The outcome of that assessment was that Ms O did not deem the child to be at high risk currently, but suggested that the child receive some form of ongoing psychological assessment by way of monitoring her random thoughts associated with court proceedings. Ms O considered the child to have moments when she is angry, and moments when she is okay.
Ms O was present when the child went into her father’s care on 9 November 2018, that handover occurring in the principal’s office of the child’s school. Ms O said that process took approximately 20 minutes, the child was not crying and was not upset when told of the Court decision that her father would be coming to collect her. At the changeover, the child indicated that she wished to continue her [hobby] activity on a Friday, and continue with her library attendances after school. Whilst the child has been in the care of her father and Ms F her school attendances have been consistent and her grades and skill level have “not gone down at all”.
Ms F
Ms F married the father in … 2014. They are, according to both the father and Ms F, happily married. It is a quiet, mutually respectful household where both the father and the child’s step-mother have been engaged in the care of the child when she has spent time with them. Ms F clearly enjoyed taking care of the child, between 2014 and 2016. She supported her in practical ways and otherwise engaged with her in many activities including [activities]. She accompanied the child to Chinese lessons; swimming excursions; and various other (both indoor and outdoor) activities. Ms F was involved in the child’s school work, including purchasing for her assessment books and other childrens’ books to advance her learning. She is desirous of continuing to be able to perform such functions.
In August 2016, the mother made an application for an intervention order against Ms F which the mother subsequently withdrew in August 2017. When the matter was first before the Children’s Court in late 2016, the mother arrived at court with the child accompanying her. It was a school day. The child was very upset at being present that day, and upon seeing her father and Ms F apologised to them for their need to be at Court. Ms F indicated to the child that it was “not her fault” and encouraged her to enjoy her new friends in the new school her mother had unilaterally enrolled her in, in Suburb C.
Ms F’s evidence is that historically, the child has spoken to her of her parents’ arguments and the child’s desire to remove herself from that conflict. Ms F’s response was an appropriate one. Her evidence was:-
“… I want to be calmed [sic] as my aim is to protect her from any unnecessary emotional damage”
In oral evidence, Ms F described her ongoing position as one where she wished to “stand alone by myself”. She referred to the difficulty in being in the middle of the parties’ conflict and wished to be aside from it. She saw her role as the child’s step-mother and said of the mother in response to the mother’s cross examination of her “I respect you as [the child’s] mother”.
Ms F was a credible witness, a person of integrity, who had a good understanding of the importance to the child of being able to have a supported relationship with each of her mother and father. Despite the enormous difficulties that the mother’s actions have presented to her, and the hurt the mother’s unfounded allegations have caused her, Ms F does not object to the child freely seeing each of her mother and father and her evidence was that the child “deserved both of [her parents]”. She denied having denigrated the mother to the child although she admitted that she had suggested to the child at changeovers that the child should go with her father and that if she did not do so, her mother would get into trouble. The reason she provided for saying this, was she thought it important to impress upon the child that she “should do the right thing” and comply with orders of the Court.
When cross examined by Counsel for the ICL, Ms F gave some insight into the child’s time in the household of she and the father since 9 November 2018. There have been two occasions when they have had to collect the child from a police station in circumstances where the child failed to return home and did not advise them of her whereabouts. These occasions were prompted by the child’s resistance to the current arrangement and her belief that she should make her own decision as to where she resides. This is not surprising. The mother’s evidence is that the child should never be forced to do that which she does not wish to do. For Mr Lac, these challenges, which are real and significant, have been part of the process of the reunification of the child with her father. She acknowledged that it was over two years since they had had the child in their household, and acknowledged that these things “take time to heal”. Her evidence was that there had been a “little bit of improvement in the child’s attitude as the weeks passed”; she observed the child to be less resistant to the arrangements; to be talking with, and texting with, her father; to be engaging in a two way verbal discussion with each of the father and she; and to be expressing her views in a forthright manner. Ms F thought this to be good progress and that it would not be in the child’s best interests for the child to “keep silence”. Ms F noted the child to be more accepting of the situation currently. She described her as a very intelligent girl, who has had few boundaries imposed upon her while in her mother’s and half-sister’s care. She acknowledged that the child wished to return to her mother’s care and understood the expression of that wish. She would like to see a free movement of the child between the respective households of the mother and father.
Ms G
Ms G was not a credible witness in every instance and appeared constrained in her responses by the presence of her mother in the courtroom.
Family Consultant Ms E’s evidence of 21 December 2016 as to her observations of the child and her father, and the child’s responses to times spent with her father and Ms F, included the following:-
“[X] described positive happy memories with her father and expressed concern that he might be angry with her and feel “…I have betrayed him.”
Mr Lac was observed with [X], and at one stage they were chanting Buddhist mantras’ recalling time when they attended Temple together and [X] was laughing. Whilst reserved with her father there was no evidence of [X] as being fearful of her father.
[X] reported that she had “...pranked” Ms F once and “…made her really afraid” which does not seem the likely behaviour of a child anxious and fearful of retribution.”
Ms G, in affidavit evidence, affirmed that in her conversations with the child following the s.11F assessment on 21 December 2016, the child told her that “she was scared of [the father] and she was scared the court will force her to go. She asked me why nobody in court is listening to her. She was very upset.” If this evidence is to be believed, then it is evidence going to a process of alignment occurring at that stage. The child had clearly learned what it was that was expected from her by her mother and half-sister when reporting on interactions with her father.
Ms G gave evidence that she saw it as her role to keep the child safe from the father. Nevertheless, at this time she would support the child in having a relationship with her father. Her evidence was “that she should have a relationship with him and that would be great”, despite her assertion and belief that the father has sexually abused the child and her ongoing assertions to the child that the father is someone to be feared, and someone who has a frightening temper.
Ms G resided with the father in his household from the commencement of his cohabitation with the mother for a period of approximately four years before, in 2006, Ms G commenced year nine at School 3. At that time Ms G moved from the home of the father in Suburb B to a housing commission home in Suburb C. Ms G resided in that home with three family friends in a three bedroom apartment. This movement out of the household of the father and the mother pre-dated the birth of the child. Thereafter, Ms G did not live in the same household as the father and the mother again.
Ms G’s evidence in her earliest affidavit was that she had observed the father shake the child when she would have been about one or two weeks of age. This accorded with her mother’s account. The father denied that allegation. No complaint nor reporting was made by the mother or Ms G to DHHS, to the police, or to any medical services. The child, being shaken as described by Ms G and the mother, would have sustained some injury. None has ever been apparent. The child was not taken to any doctor or any hospital. The mother continued to reside with the father for some six years leaving the child in the sole care of the father from time to time and following separation, for some months whilst she travelled to China. The Court does not accept the account of the mother and Ms G. Ms G’s further evidence was that “after this, I rarely saw my mother leave [X] on her own with [the father]”. This is not accepted by the Court. The child existed in the household of her parents and was left by each of them in the care of the other. The child developed a close and loving relationship with each of her parents. Ms G did not live in the household. She visited, on occasion. In 2010 she took up residence in Canberra.
Ms G’s further evidence was that the child did not see her father between the ages of 5 and 8 and that thereafter she saw him a few times before the proceedings commenced in July 2016. This stated chronology bears no resemblance to the facts as found by the Court. Following completion of school and in 2010, Ms G attended university in Canberra for some years. During those years while she was in Canberra, the child spent regular time with her father. Many of the difficulties in the father/child relationship commence to occur following the return to Suburb C of Ms G and her then availability to care for the child in substitution for the father and in the absence of the mother.
Ms G told Ms B that she observed “high levels of mutual verbal abuse” between her mother and the father. On the hearing of the matter, Ms G recalled verbal abuse perpetrated upon her mother by the father and not otherwise. She described her mother as not “usually” arguing and added that she could not recall hearing her arguing with anyone, save with the father.
Ms P
Ms P has been the father and Ms F’s neighbour since December 2014. The Court finds Ms P was a reliable witness. Her evidence was that the father and Ms F “are absolutely beautiful people” and further that “when the child was in their care, she was always a very happy little girl. I never heard them scream or argue ever”.
Ms P gave evidence that the mother criticised the father to her in an attempt to garner support for her in her ongoing conflict with the father. Ms P recalled an incident on 10 September 2016, when the mother was “quite furious and angry and screaming. She kicked the wire door.” Ms P said further that the mother spat during the confrontation but that nevertheless the father “remained pretty calm considering”. She claimed that [X] pleaded with her mother “Please, Mummy. Mummy, just leave. Just go.”
Ms Q
Ms Q and the parties have known each other for approximately ten years. Ms Q also now lives in Suburb B. Ms Q has for some indeterminate time and ‘often’ looked after the child from after school until approximately 6.00pm, when the mother in these proceedings collected the child from Ms Q’s home on those occasions when [X] has not been in the care of her sister Ms G. During the course of the proceedings, and on 10 September 2018, Ms Q left her home and went with the mother to Hungry Jacks. This was at approximately 6.35pm. Ms Q initially lied about this, saying she had not left her home and only saw the mother at her (Ms Q’s) front door around 6.00pm. The purpose of the meeting, as arranged by the mother, was for the mother to talk to the witness about why it was she was involved in the proceeding. Ms Q did not wish to be so involved. Her grand-daughter and the child are friends and so she assists in the care of the child after school. Ms Q described the child as “very independent, has her own opinions. She said adults should listen to kids.” Ms Q was called to give evidence by the father, he wanted to know who was caring for his daughter.
Ms R
Ms R arrived in Australia in 2004. She is a citizen of China. She arrived in Australia on a student visa and now has obtained permanent residency in Australia. She first met the mother and father in 2005 and lived with them and the child from 2009 until 2012. Her evidence went to two matters:-
a)a violent assault she claimed was perpetrated upon the mother by the father on an unknown date a “very long time” ago; and
b)a conversation had between she and the child on 30 November 2018 as claimed by her. This conversation followed her returning to Australia from China on 26 November 2018, and attending upon the mother shortly thereafter to take to her some gifts she had bought for the mother.
Ms R was not on affidavit and was only foreshadowed as a witness in the proceedings on the second last day of the trial. The mother had subpoenaed her to attend and give evidence. She had not served a copy of the subpoena on the other parties.
Ms R claimed that she was witness to a violent assault perpetrated by the father upon the mother in the presence of the child when the child was very young. Her evidence was that she observed the father to be lying on top of the mother and strangling her such that the mother could not breathe. Ms R said she tried to pull the father away from the mother, but that the father pushed her away and told her it had nothing to do with her. When cross-examined by the father as to this episode, Ms R denied observing the father to have a bloodied head. The mother however confirmed during the course of the proceedings that this particular alleged episode of violence between the parties, as described by Ms R, was that which the father had earlier described in the proceedings, where the mother had hit him with an object to the head, causing his head to bleed, as admitted by the mother. Ms R, when cross-examined by Counsel for the ICL, agreed that she did not contact the police or the DHHS in respect of what she described as a horrific assault where the mother had stopped breathing.
Ms R’s further evidence went to a conversation she claimed to have had with the child in the public library in Suburb B on 30 November 2018. This conversation she said, occurred after school hours. Ms R claimed that she came across the child in the library whilst visiting the Council building on a visit completely unrelated to the library. Nothing required her to enter the library. The Court finds that Ms R in fact on this occasion went in search of the child at the request of the mother. Ms R’s evidence as to the conversation which ensued was that the child said, relevantly, the following:-
a)that she missed her mother very much;
b)that she wished to return to her mother’s care;
The father accepted that the child may well have said these things.
c)that there was little communication between her and her father;
d)that her father yelled at her;
e)that her father threatened to call the police if she did not in effect, obey him; and
f)that she was very scared of her father and that he had physically assaulted her.
The father denied these further allegations save the father admitted the child had been upset and angry with him after hearing from a Chinese woman, possibly Ms R, that her maternal grandfather in China had died. The child blamed her father for her inability to visit him before his death.
Ms R gave further evidence that on 1 December 2018, being the day following her conversation with the child, she called the father and told him she needed to give him a very important document, related to the proceedings, that she needed him to sign and return to her. This evidence was adduced in cross-examination by the father. Ms R met the father at his home and handed to him an envelope. Ms R’s evidence was that she had not been instructed by the mother to serve same upon the father. Her implausible evidence was that a man, a complete stranger, required her to pass on some court documents to the father. She claimed to have “no idea” as to where the documents originated from. The father accepted the documents from Ms R; opened the envelope; and indicated to Ms R that he disagreed with the draft consent orders enclosed. Those orders, proposed by the mother and signed by her on 19 November 2018 were as follows:-
“1. Neither the mother nor father denigrate and/or argue with each other in the presence of the child.
2. The father spend time with the child on each Sunday as follows:-
a) between the hours of 11.00am and 12.30pm, the parties and child to meet at the restaurant;
b) at the restaurant known as [Restaurant] in Suburb A; and
c) in the presence of the mother.
3. That all other orders by the Honourable Court be dismissed.”
The provision of such document to the father was further evidence of how insightless the mother is, and how she would continue to thwart the development of the child/father relationship even at this time.
On 2 December 2018, Ms R engaged in a brief text exchange with the father. He wished for her to call him as soon as possible. She responded that she could not, but asked words to the effect of “What’s happening? Is [X] okay?” The father did not respond. Ms R’s evidence was that she then became worried, so worried she felt it necessary to call the police.
The father must have wondered whether it would ever stop. That evening he was again visited by police officers at his home. Ms R, out of Australia for most of 2017 and 2018, and having only returned to Australia less than a week earlier, somehow felt it necessary to interfere in this family’s life, completely absent any reliable knowledge, acting clearly on the instructions of the mother, to this extraordinary and unjustified extent.
As submitted by Counsel for the ICL, the Court gives very little weight to the evidence of this witness. Her evidence was vague, implausible and not truthful.
Conclusion
The Court finds that the child has not been subjected to sexual abuse by her father. The mother is not a credible witness. Her own evidence is inconsistent. The mother reported to family consultant Ms B, in December 2016 that the child had confided in Ms G a year earlier that her father had sexually assaulted her. On Ms G’s evidence, she first became aware of the allegation on 24 February 2017 when a police officer informed her that the child had made a disclosure of sexual abuse. There is no corroborating evidence independent of the child’s inconsistent and coached, unsubstantiated disclosures. The mother will say and do anything to achieve her object. In this case it is the total destruction of the child’s relationship with her father. [X] has been totally enmeshed in an alienation process instituted by her mother and encouraged by her half-sister. Both provided inconsistent accounts as highlighted accurately in the family report of Ms B.
The father was a credible witness. His evidence was supported by other evidence.
Despite the conflict between the parties, the father’s evidence was that he “would like to form a good cooperative relationship with the mother again”.
The Court determines, given the allegations of family violence by both parties and the highly volatile and conflictual nature of their unfiltered relationship, that the presumption of equal shared parental responsibility, as set out in s.61DA(1) of the Act, is rebutted, and that the father should have sole parental responsibility for the child.
The Court finds the child has been subjected to emotional abuse perpetrated by her mother to a degree which represents an unacceptable risk. There is no likelihood of its abatement. The wishes of the child are, in these circumstances, accorded little weight, an approach supported by the ICL.
The father has sought a change of surname for [X] from that of her mother to that of her father. This would sever a very real connection the child has with her mother, would cause further anxiety for the child, and, at this stage of her development, would not promote the child’s best interests. Rather than the eradication of her mother’s surname albeit one of many, the child should be at liberty to use the surname of ‘Yau’ by which she has been known for most of her life coupled with the father’s surname on all public documents. This will reassure her that she has a connection with both her mother and her father and will enable her, upon attaining the age of 18 years, to make a more informed decision as to what surname she wishes to be known by. The father’s name does not appear on the child’s birth certificate. He is at liberty to seek to have the birth certificate amended so that it correctly reflects that he is the child’s biological father.
The father has not made any significant payments of child support to the mother for at least four years. This has been in the context of his inability to see the child and develop his relationship with her because of the mother’s defiant opposition to comply with any Court orders of which she does not approve. Both the mother and father have fought over financial issues whilst living together and whilst separated. Each does not want to provide the other with any financial assistance or benefit. With the child in the father’s care, the mother will not pay any child support amount to the father. Neither party can see, nor is interested, in the adverse impact this has had, and will have, on the child into the future.
The ICL in these proceedings had an enormously difficult task. She performed it very well. The mother and child did not concede that the ICL was not obliged to act on the child’s instructions.[6] At times, the ICL was inundated with messages from the child and the mother.
[6] Family Law Act 1975 (Cth) s.68LA(4).
The Court has had to grapple with on the one hand, the child’s need to continue to reside, in a general sense, with her mother and thereby have ready access to, indeed live with her adult sister and brother. The child has historically been allowed to make her own decisions, and expects that her demands will always be met. This is detrimental to her long term emotional development. On the other hand, the child has a need, a very important one, to be allowed to have a nurturing and loving relationship with her father. This has been completely denied to her. More than that, he has been drawn as a monster, capable of gross betrayals of his daughter. That picture is continuing to be painted and, if possible, exaggerated further. It is in the child’s best interests to attempt to reverse this process.
The mother has no ability to behave in any reasonable way which might promote the child’s best interests. It is not possible for the child to live with her mother or spend unsupervised time with her presently. The child has a loving, consistent, ever present father that she cannot see or communicate with when in her mother’s care. In her father’s care, she is encouraged to have a relationship with her mother. Her siblings shall be able to arrange to see the child as agreed with her father. This may well be initially in his presence but he understands her need, emotionally, to continue this sibling connection but in a way that promotes the child’s best interests. That must include an acceptance, and support of, her living environment with her father and his wife.
The mother has filed a plethora of applications in these proceedings. Her recent applications for the child to travel outside the Commonwealth of Australia had no prospect of success. Nor did her application to disturb the orders made for DNA testing. Without an order requiring her to desist, the mother will continue to file vexatious applications. There is no benefit to the child or the other parties in her doing so. Some respite must be granted and I shall make an order to allow that to happen for a limited time.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 21 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Remedies
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