Long & Tranh
[2008] FamCA 730
•13 August 2008
FAMILY COURT OF AUSTRALIA
| LONG & TRANH | [2008] FamCA 730 |
| FAMILY LAW – CHILDREN – Parental responsibility– Not in interests of child to have relationship with father – Mother has sole parental responsibility FAMILY LAW – CHILDREN – With whom a child spends time – Not in best interests of child to require child to spend time with the father FAMILY LAW – CHILDREN – Mother permitted to remove the child from jurisdiction from time to time FAMILY LAW – SELF REPRESENTED LITIGANTS – Whether father a vexatious litigant – Order made under s 118 of the Family Law Act 1975 (Cth) FAMILY LAW – COSTS – Notwithstanding entitlement of ICL to costs clearly established, in view of the resources of the father no order made |
| Family Law Act 1975 (Cth) Ss 106A and 118 |
| APPLICANT: | Ms Long |
| RESPONDENT: | Mr Tranh |
| INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co. |
| FILE NUMBER: | PAF | 2203 | of | 1994 |
| DATE DELIVERED: | 13 August 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 13 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self represented. |
| COUNSEL FOR THE RESPONDENT: | Self represented. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Braine of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co. |
Orders
That all previous parenting orders are hereby discharged.
That the mother Ms Long (hereinafter referred to as “the mother”) be allocated sole parental responsibility for the child born on in October 1993 (hereinafter referred to as “the child”) including the sole parental responsibility for obtaining overseas travel documents for the child, including a passport.
That the child live with the mother.
That the child spend no time with the father Mr Tranh (hereinafter referred to as “the father”) unless the child expresses a wish to do so.
That within 28 days of the making of these orders the father do all necessary and required things of him and sign all documents and consents required of him to enable the mother and/or the child to:
(i)Obtain a passport or visas for the child to allow the said child to travel overseas.
(ii)To remove the child and/or his mother from any airport watch list.
Should the father refuse or neglect to sign any document and/or give any consents reasonably required of him pursuant to Order 5 above then a registrar of the Family Court of Australia is hereby authorised pursuant to Section 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary that should have been done by the father to give effect to these orders.
All other applications are dismissed.
That subject to Section 118 of the Family Law Act of 1975 (Cth), except for any appeal against these orders, both parties are restrained from the date of these orders from instituting any proceedings in any court exercising jurisdiction under the Family Law Act 1975 (Cth), without first obtaining the permission of a Judge of the Family Court of Australia sitting at the registry at Parramatta.
Amended Order Notation:
That the father has confirmed to the Court that he will not sign the documents referred to in these orders and in those circumstances the mother need not further submit such documents to the father before seeking the Registrar of the Family Court to sign such documents pursuant to Section 106A of the Family Law Act 1975 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Long & Tranh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: Parramatta PAF2203 of 1994
| Ms Long |
Applicant
And
| Mr Tranh |
Respondent
REASONS FOR JUDGMENT
The proceedings before the Court relate to a child of the parties, who was born in October 1993. The child is accordingly fast approaching 15 years of age. The parties to the proceedings are the child’s natural mother and his natural father.
There are three issues requiring determination in the parenting proceedings. The first issue is whether there should be an order for shared parental responsibility or as the mother seeks, an order for sole parental responsibility in her favour. The second issue is whether as the father seeks the child should be ordered to spend time with him each alternate weekend, or as the mother seeks that there be no order that the child spend time with the father unless the child wishes to do so. The third parenting issue relates to whether the mother should have the ability to remove the child, from the jurisdiction for the purpose of visiting family members in China which does not seem to be a Hague Convention country, or as the father seeks she should be prohibited from doing so.
Finally, albeit not a parenting matter, there remains to be considered an application that the father be declared a vexatious litigant and an order made against him pursuant to s 118 of the Act. The mother consents to an order being made against her pursuant to s 118 without any admission that she is vexatious.
The reasons why orders will be made providing for sole parental responsibility to the mother that the child spend no time with the father unless the child wishes to do so, and that the mother be permitted to remove the child from the jurisdiction for the purpose of visiting relatives in China are essentially as follows.
By way of introduction to these reasons for judgment the Court incorporates the chronology appearing at the second and third pages of a very helpful chronology provided by counsel for the Independent Children's Lawyer, the ICL, under cover of an email dated 8 August 2008. Those matters of chronology will be incorporated in the Court's reasons for judgment should it be necessary to settle those reasons for other purposes.
The chronology can be supplemented by reference to two other matters. The first is that in either 2006, as the father appears to suggest, or 2007, as the mother clearly suggests, in circumstances where there was no Court order so providing, the mother facilitated the child’s attendance at the funeral of his paternal grandmother, the father's mother. The second matter is that on 3 June 2008 Dr H produced an updated family report which has been before the Court. It is convenient to refer to that document for the purpose of detailing the factual background of these proceedings as that has emerged during the trial.
It perhaps should be said at the outset that the father has represented himself and with respect to him has done so in a most inept fashion. Ultimately, the quality of the father's self representation does not have the potential to deflect the Court's attention from the real issues in this case. As these reasons will reveal, this case should never have got to Court. The father, in all the circumstances, particularly after Dr H's report issued should not have maintained his opposition to the relief sought by the mother or pursued the orders which he himself has pursued. Although the father's self representation has been totally ineffective the evidence, and particularly the circumstantial evidence, leaves no scope for thinking that the outcome of this case might have been any different had the father been competently represented or been more capable in representing himself.
As the record would reveal, consistent with the approach adopted by Waddy J in the 2007 hearing, time limits were imposed upon the father for the purpose of his cross-examination of the mother and Dr H. With all due respect to the father he could have cross-examined each of these witnesses for a week and nothing would have emerged from that process which would have either impacted upon the probabilities, or been remotely likely to change the outcome of the case.
Dr H was cross-examined. During the course of his cross-examination it was suggested to Dr H that he had lied and misrepresented the father in his report. Dr H was accused of having sought to put thoughts and words into the child’s mouth. He was accused of bias. The father thus said that the report should be rejected. Those challenges are utterly without foundation. The father’s attempts to cross-examine Dr H were revealing, although in ways that, if the father appreciated them, would not have intended.
As it transpired every matter of which the father complained in terms of the content of Dr H's report as being deficient or in which he had failed to report relevant matters actually found expression in the report. Dr H accurately reported events which the evidence revealed to have happened. For other complaints made by the father during the course of the case, which Dr H was not in Court and could not have heard of, to have substance, Dr H would need to have had an incredible capacity for fabricating events which subsequently transpired. The improbability of that state of affairs is obvious. To the extent that any factual matter in Dr H's report required underpinning the performance of the father during the trial provided such underpinning.
The Court is entitled, particularly in a case of this nature, to have regard to the demeanour of a party, but more importantly how the party in this case himself what he says. As a reading of the transcript would reveal, each of the matters of criticism levelled at the father was evidenced by him repeatedly during the course of the trial. Realistically, this is a case where on the father's own form of words during the trial, save in one respect, the findings of fact upon which the decision of the Court rests could all be made by reference to the child's own statements.
Dr H did not read earlier reports of Ms B. The Court has not read them either. The Court had not read them in case, as is likely, they were adverse to the father. Why Dr H did not read them is less clear but almost certainly arose from not dissimilar considerations. Ms B was cross-examined before Waddy J. A transcript of the proceedings before Waddy J was, by consent, before this Court. The Court has read the transcript in its entirety. The Court has disregarded Ms B's evidence given that she was not readily available to be cross-examined in these proceedings. That was one of the reasons why the Court did not read the reports.
Dr H very properly and fairly to the father confined his enquiries to recent developments within the family and to ascertaining the current situation. Much was sought to be made by the father in cross-examination of Dr H of the sequence of the interviews, the mystery surrounding telephone conversations and the like. Dr H set out in a way that is not suggested to be inaccurate how that arose. There is no mystery surrounding anything attaching to the interview process which Dr H conducted, at least so far as Dr H’s involvement is concerned.
Dr H confirmed that the parties, that is the mother and father, had roughly equal time with him. As is plain, the focus of Dr H’s enquiries was sensibly a young man. That is the reality. The child is a young man. What he thought about things was pivotal to the Court’s decision. The child is the focus of the enquiry, a proposition which does not seem to have registered with the father over the nearly 14 years of his lifetime during which there has been litigation about the child.
It can perhaps be recorded at this point that a central theme in the father's campaign is that the mother has poisoned the child against him. The evidence before this Court provides no rational basis for so concluding. Were it necessary to do so the Court would conclude that the child’s resistance to any contact with his father is far more referrable to things said by the father and done by him than anything ever said or done by the mother.
Dr H, an expert in child psychology, despite the father's apparent attempts to impugn his expertise, was clear in his evidence that he saw nothing or heard nothing from the child in terms which suggested to him that the child was expressing other than his own views.
The Court’s observations have been already recorded with respect to the father's demeanour. With respect to him, the father was an unimpressive witness. The Court would have little confidence in anything that he said with respect to controversial issues, unless what he said was corroborated by independent evidence, or circumstances which impacted in his favour with respect to the probabilities.
The mother impressed as a sensitive and honest witness. It is difficult for anyone who has not been in her position to imagine how she must feel after 14 years of litigation throughout which she has overall, and with few exceptions, been either a successful applicant for relief, or has successfully resisted the many and varied applications brought by the father.
The Court accepts that the child’s reluctance to have anything to do with his father is not referrable to the actions of the mother. To the contrary, the evidence is quite clear that, whenever the paternal grandmother died, the child’s attendance at her funeral in the absence of any Court order obliging him to go arose only because the mother wanted that to happen and brought that about. The Court does not accept that the child’s failure to attend for weekend contact is referrable to the actions of the mother.
Whatever happened in July 2005 and prior to that time, is far more likely to have influenced the child’s refusal to have anything to do with his father than anything said or done by the mother. Dr H recorded accurately that the child has not spent weekends with his father since 2005 and that the only occasion on which he has seen his father since 2005 was at the paternal grandmother's funeral.
Mr Tranh was interviewed by Dr H. Dr H, for reasons which he detailed and which the Court has no difficulty accepting were valid reasons, formed an essentially negative view of the father. The Court endorses that essentially negative view. Before Dr H the father sought to advance his case in ways identified by Dr H. As a reading of the transcript in this case would reveal, the father’s attempts to advance his case by the final trial included things such as the 1994 chicken pox suffered by the child and other events of not dissimilar antiquity.
There is a close correlation between the matters reported by Dr H in the second sentence in paragraph 8 of his report and the father's presentation before this Court. Indicative of that, as the record would show, was the father's capacity to communicate in English. The record would clearly reveal that when it suited him to do so, the father communicated quite capably in English and when it suited him not to do so, he retreated behind the interpreter. Many times throughout the trial the father was translating into Mandarin or Cantonese to the interpreter his answer or response to statements which were at the very same time being made in English. How he could have done that had he not understood in English what was being said is difficult to imagine.
Dr H also recorded the assertions of the father that the mother was totally responsible for the child’s negative attitude towards him. That stance was maintained by the father both in the evidence he gave before Waddy J and in his presentation before this Court. Paragraph 9 of Dr H’s report is also consistent with the father's presentation before this Court.
So far as the alleged abuse in July 2005 is concerned; the Court does not make a finding that the child was at that time abused by his father. Nor does it find that at this time the risk of physical abuse of the child by his father constitutes an unacceptable risk. There are several reasons why that is so. The first is that, as Dr H confirmed, the determination of these proceedings in the mother's favour and adverse to the position of the father does not depend upon making such a finding. There is an abundance of other evidence which would support the orders which the Court has made without the need to make a finding of abuse.
Although the Court has seen and heard the father and that process is revealing the reality is that the father was not, and sensibly was not, again cross-examined before this Court in relation to the allegations of abuse. There is a good deal of evidence which could be accepted would establish that abuse occurred. The evidence in support of the allegations is capable of being accepted. The father's denials are capable of being rejected having regard to the general unreliability of his recall of events and inability to see things other than as he wishes to see them.
A factor of considerable significance in relation to the alleged abuse relates to the circumstances in which the allegations of abuse surfaced. The Court struggles to recall a case where the allegations of abuse have emerged in as untainted or uncontaminated a fashion as they have in this case. Unlike most cases in the Court's experience, the child did not disclose to his mother or another interested person. The child's disclosure was inadvertent, and to another school student. It was inadvertent because it seems the child did not realise that the conduct of the kind of which he complained was not normal. Thankfully another student and those at the school had a different view of the allegations.
Were it necessary to do so, the Court would be satisfied according to the civil standard and having regard to the seriousness of the allegations that there was an unacceptable risk of physical abuse of the child in 2005 which but for the fact that the child is now considerably older would continue. The Court however does not rely upon the findings which it could make in that regard, there being an abundance of other evidence which has been before this Court and which the Court can comfortably rely upon in support of its conclusions.
The Court does not accept the father's assertions with respect to the child’s future non-return to Australia to be genuine. The truth is far closer in the Court's view to that implied by Dr H in paragraph 11 of his report. It is a matter of record that the mother has previously, pursuant to a Court order made in 2005, removed the child from the jurisdiction, taken him overseas and brought him back. There is no reason not to accept the mother's evidence that she would do so in the future if she has the capacity to take the child to China to visit an ageing relative or relatives.
Objectively, it is consistent with the manipulative conduct of the father that he would, as he said to Dr H, be prepared to reconsider the passport issue if the child resumes spending time with him. It is unnecessary to refer further to the father's claims with respect to the mother, other than to say that there is not a shred of evidence to support the claims he makes, as Dr H said, "with a tenacity that bordered on obsession."
Dr H referred to his interview with the mother. It is unnecessary to refer in detail to what he there recorded. Dr H clearly appreciating that the mother is not the focus of the enquiry, nevertheless found no basis for recording or finding that the mother had been instrumental in or influential on the child’s decision not to see his father.
Although the father does not see it this way, this case is ultimately about the child. It is little short of remarkable that as the child approaches his 15th birthday one of his parents does not respect his clearly stated and consistently held wishes. Dr H found the child in the course of his telephone interview with him to be polite and articulate. The child indicated he was doing well at school. Dr H thought the child was socially adjusting and adapting and developing well in life. That is consistent with the evidence of the mother.
The father sought to criticise the mother's parenting of the child in ways which are little short of extraordinary and reveal a complete lack of understanding of his son and what is reasonable for the son to want to do and not want to do. There is little room for doubt from the father's questioning of the mother that any time the child spent with the father would be a period in which the child would be expected to do what his father wanted and refrain from doing things which his father opposed. It would also be, there is not the slightest doubt, a period of intense interrogation with respect to the mother. It would be, on the evidence, a quite unpleasant and emotionally abusive experience for the child. The child expressed to Dr H his reasons for not wanting to see his father and his understandable desire that the proceedings relating to him be concluded once and for all.
Under the heading, "Evaluation," Dr H addressed a number of relevant issues. He recorded, accurately there is not the slightest doubt, that the child has spent his “entire life in the shadows of this Court”. Dr H concluded that the child’s current rejection of his father resulted partly from the father's conduct towards him, partly from the father's repeatedly stated conviction that the mother had contaminated the child’s relationship with him over the years. He recorded, accurately there is no doubt, that the child was obviously closely attached to his mother and did not want to be exposed to his father's endless criticism of her behaviour which the father seems incapable of controlling.
Interestingly, the whole thrust of the father's four hour cross-examination of the mother involved unsubstantiated criticisms of her. As before Dr H, the father was incapable of refraining from persisting with those criticisms, even though it would be obvious to the most obtuse person that they were utterly without foundation. Dr H recorded that the child’s age and maturity demand that his wishes be respected. With that statement the Court could not possibly disagree. It would be in the Court's view an abuse of the child to require him, unless he chooses to do so, to have any contact with his father. If he does, the child knows how to do that and would be able to contact his father, but to require him to do so would render this Court party to abuse of a boy who has regrettably been subjected to 14 years litigation of the almost 15 years that he has been on this earth.
Dr H recorded, accurately, that the child deserves to have some control over his family relationships. That is correct. He having expressed consistently, clearly, and with maturity his views, what that entails cannot be in doubt. Dr H touched on the father's difficulty responding appropriately to the rebelliousness and independence characteristic of adolescence. The Court has little doubt that that observation was accurate. The father revealed not the slightest hint of a capacity to negotiate, compromise and deal with a teenage son with whom he has had no contact for more than three years.
Dr H recorded the child’s views in relation to the passport and, correctly in the Court's view, recorded that the father's resistance to this was part of some attempt to gain leverage over the child. For the reasons which he articulated, Dr H accordingly recommended that orders be made in the terms in which they were earlier this morning.
The proceedings are governed by Part VII of the Act. It is not necessary to refer to each and every part of Part VII, particularly in a case such as this where, given the paramount consideration remains the best interests of the child, there can on the material before this Court be only the outcomes which the orders foreshadowed earlier reveal.
However, perhaps in the interests of protecting those who may have to defend the orders elsewhere, the Court has had regard to the principles underlying the Act as they appear in Part VII. The Court has had regard to the matters to which it must have regard in determining what is in the child's best interests as they are set out in the Act. The Court has had regard to the presumption in favour of shared parental responsibility and the factors which can lead to that presumption being rebutted.
Were it necessary to do so, the Court could make findings in terms of prior physical abuse as a basis for the rebuttal of the presumption. To expose the child to an obligation to spend time with his father would be to subject him to emotional abuse. A further basis for rebutting the presumption is that on the totality of the evidence it is not in the best interests of the child to require his mother and primary carer since he was one year of age to be involved in shared parenting with his father.
On the evidence before this Court it would be mischievous to preserve an order for shared parental responsibility in this case. To do so would not benefit or be likely to benefit the child in any way at all. On the contrary, it would provide in the father's view a capacity to interfere in the child's life for no good purpose, and potentially for ulterior and undesirable motives. Dr H has indicated what they are, and the Court accepts them. It would put the child and the mother in an impossible position were shared parental responsibility to be continued or imposed.
Shared parental responsibility would have the potential to put at risk the very successful parenting which the mother has demonstrated over a decade and a half under difficult circumstances, not the least of them being that, other than for a period of three years after a Court made an order that there could be no further applications, virtually every year of this child's life has been marked by litigation.
The Court does not need to consider equal time spent with the father having rebutted the presumption. On no view of the evidence could equal time spent be contemplated, at least not whilst ever the welfare of the child has any bearing on that issue. As the Act makes clear the welfare of the child is the paramount consideration.
The issue of substantial and significant time requires consideration. That can be addressed quite simply. It would be adverse to the child’s best interests for him to be required to spend any time with the father unless the child wishes to do so. The one possible benefit were it to occur emerging from the evidence in relation to the child spending time with the father arises from the evidence in relation to the father's child of a subsequent relationship. That child is the child’s half-brother.
The mother gave evidence, which the Court accepts that, whilst she and the child do not want the father having any part of the child’s life whilst ever the child opposes that occurring, they do not reject the child’s half-brother. The mother recognises, as the child seems to also, that there could be benefit both for the child in knowing his half-brother and the half-brother in knowing the child. To that end, the mother has given evidence, which the Court accepts, that the child’s half-brother could spend time with the child at the mother's home, provided that the father was not there. That would not seem difficult because the father is apparently still subject to one of the various AVOs which have been made against him over the years.
On the evidence before this Court, to order that the child spend time with the father to facilitate the possibility of his having some time with and a chance to get to know his half-brother would be no more and no less than to provide the father with an ability to pursue the agenda which so clearly emerged from Dr H’s report and the father's presentation before this Court. The Court is not confident that such time spent with the father would either achieve the objective which led to it being imposed, or otherwise be in the child’s best interests. The offer is there. If the father is genuine, which the Court doubts, that he is about the relationship between the child and his half brother, it can be taken up and the child can spend time with his half-brother at the mother's home.
No other facts or circumstances are relevant for the purposes of Part VII. Turning to the particular orders which the Court proposes, the Court has given its reasons for awarding the mother sole parental responsibility. The Court has also given its reasons for declining to order that the child spend time with his father unless the child wishes to do so.
So far as the removal of the child from the jurisdiction from time to time is concerned, there is little doubt that so doing would be beneficial in that it would enable him to know relatives who may not be around when he is old enough to take himself off to China for that purpose. It would also enable him to enhance his cultural knowledge and his cultural attachments. As belated developments in this country with respect to reconciliation acknowledge, the importance of those cultural attachments and heritage considerations cannot be lightly underestimated.
Realistically the sole issue in relation to the mother being able to remove the child from the jurisdiction relates to the risk that she will not bring him back. China is not a Hague Convention country. That is not a matter of great significance. It is somewhat disingenuous to believe that a parent who is intending to abscond will necessarily, if travelling to a Hague Convention country, conveniently and helpfully remain in that country, thereby risking having the objects of the absconding defeated, rather than move to a non-Hague Convention country.
More importantly in this case however, the mother has a demonstrated history of being entrusted with the child's removal from the jurisdiction and returning him to the jurisdiction. That was not without significance, particularly as it came at a time when as the record reveals there was ongoing litigation between herself and the father, at that time the record suggests, mostly instituted by the father. The mother's incentives in 2005 when the child was younger, his schooling not as far advanced, his development, socialisation and ties not as entrenched, to not return must have been considerable. The mother did return. She brought the child back to the jurisdiction.
The Court has seen and heard the mother. She presents as an impressive, sensitive, caring mother and there is no reason either in the circumstantial evidence, or anything emerging from the mother's own evidence, to suggest that she would not return with the child to the jurisdiction pursuant to orders enabling her to take him out of the jurisdiction.
It remains only to consider the application pursuant to s 118 of the Act. That relief should be granted. There are a variety of reasons why that is so. With respect to the father, if no sooner, by 3 June 2008 when Dr H’s report issued, he should have accepted that continuation with this case was doomed to failure. The Court struggles to recall a more hopeless case than that sought to be advanced by the father before this Court.
The father claims to have no assets and to be dependent upon welfare, hence he would say no doubt that he is not in any way vulnerable to any costs order. The father comes here, he represents himself, files no new evidence since September last year, although with respect to him having not seen the child; he couldn't. He does not do other than maintain what objectively was a hopeless stance in relation to each of the issues before the Court.
The father fails totally and walks out the Court door leaving behind him in his wake three days of wasted public resources in the form of the Court and the Court staff, two interpreters who have been here for two days at public expense, counsel for the ICL and the ICL who, it is not said critically of them, have also been here at public expense. This man ought not be allowed on that basis alone to visit such mischief on the public purse again.
There is another and perhaps more compelling reason why the father ought not be allowed to bring any further proceedings with respect to the child, and that arises from Dr H’s report. Whether the fault be with the system, parents or something else, it is an absolute disgrace that for 14 of this young man's almost 15 years of existence, his life has been blighted by litigation. As Dr H says he is entitled to be spared from any further proceedings, the outcome of which could not possibly be other than in accordance with his wishes. For this Court to leave open the prospect of this young man being dragged into further litigation, the evidence suggesting that it would only be his father who would seek to do that, would be for the Court's processes to be abused and the Court to be a party to emotional abuse of this child. That will not happen.
The Court will accordingly make the s 118 order appearing at paragraph 8 of the orders made earlier this morning. For those reasons the Court makes the orders which appear in the orders copies of which the parties have been given.
The Counsel for the ICL has sought an order for costs of the proceedings. The entitlement to a costs order is overwhelming. This case was an abuse of the Court's processes which occasioned the public purse considerable and totally unjustified expense. The Court has real doubts as to whether the father has been frank in disclosing his finances. In the absence however of anything to provide what might perhaps be called a lead which the Legal Aid Commission could pursue with a view to perhaps recouping costs, the Court thinks that it would probably be in practice more likely to occasion more wasted time and scarce public resources in the Legal Aid Commission than it would be worth to make an order for costs. That being so, notwithstanding that the entitlement to costs is clearly established, the Court declines to make that order.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Justice Coleman
Associate: …
Date: 27 August 2008
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