LUI & ZOU

[2019] FamCA 444

FAMILY COURT OF AUSTRALIA

LUI & ZOU [2019] FamCA 444

FAMILY LAW – CHILDREN – With whom a child spends time – Interim – Where there is a history of family violence – Where the mother opposes the father having unsupervised time with the child – Where significant supervision of visits has occurred – Where the child and the father have a meaningful relationship.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-643
Goode & Goode [2006] FamCAFC 1346
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461
Pascoe & O’Keefe and Ors [2018] FamCAFC 243

APPLICANT: Mr Lui

RESPONDENT: Ms Zou

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3381 of 2017

DATE DELIVERED: 10 July 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Berman J

HEARING DATE: 14 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stenhouse

SOLICITOR FOR THE APPLICANT:  Du & Associates

COUNSEL FOR THE RESPONDENT: Mr Levet

SOLICITOR FOR THE RESPONDENT: The Law Society of New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Until further order

1. The mother shall have sole parental responsibility for X born … 2015 (“the child”).

2. That the child live with the mother.

3. That the child shall spend time with the father as follows:

   (a)       For a total of eight (8) visits each Saturday from 9.30 am to 1.30 pm    commencing 13 July 2019;

   (b)       Thereafter, each alternate Saturday from 9.30 am to 3.30 pm; 

4. That handover shall occur under the supervision of a Children’s Contact Service but until such arrangements can be made (in the absence of any other agreement between the parties) handover shall take place at a Police Station proximate to the mother’s home or as maybe otherwise agreed.          

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lui & Zou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYC 3381 of 2017

Mr Lui

Applicant

And

Ms Zou

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the court relate to the competing applications of Mr Lui (“the father”) and Ms Zou (“the mother”) with respect to settlement of property and the ongoing parenting arrangements for X born in 2015 (“the child”).

2. The parties commenced a relationship in 2012, married in 2014 and separated in July 2016.

3. Following separation the child has lived with the mother and spent limited time with the father. Orders were made on 27 October 2017 that provided for the child to spend supervised time with the father at a Children’s Contact Service.

4. The mother alleges a history of family violence during the course of the parties’ cohabitation. She asserts that the violence comprised sexually coercive conduct, controlling and intimidating behaviour and physical assault.

5. The mother contends that the father’s abusive conduct escalated following the birth of the child and she alleges that a catalyst for his conduct was his dissatisfaction with the child and the extent to which the mother involved herself with the child’s parenting and aspects of her care.

6. The date of separation is marked by the mother’s allegation that on 9 July 2016 the parties argued about bathing the child which the mother says resulted in the father hitting and kicking her and when she barricaded herself the bedroom, the father broke through the door and continued to assault her.

7. On … July 2016 the mother was taken to the hospital by ambulance with serious blood loss resulting in the loss of 2.5 litres of blood.

8. A patient health record dated … July 2016 forms part of Exhibit “3” in the proceedings. Following a CT scan the following comment appears under the Radiology Results:

   the constellation of these features raise the possibility of inflammatory bowel disease (especially Crohn’s disease) …

9. On 11 July 2016 the mother secured an apprehended domestic violence order (“ADVO”) and on 2 August 2016 the order was made final for a period of one year.   

10. Following the orders of 27 October 2017 the mother acknowledges that the father has satisfactorily completed a number of parenting programs but that she:

    [S]till remain(s) uncomfortable with the Father having any time [with] [the child], particularly unsupervised time. Whenever it is time for [the child] to go on contact, I think of the time when [the father] physically and sexually assaulted me, and remember that [the child] was conceived as a result of one of these occasions. It makes me feel upset whenever it is time for contact…”

11. The father denies the mother’s allegation that he perpetrated family violence by being sexually coercive or physically violent. He denies that he forced the mother to engage in non-consensual sex and contends that he encouraged the mother to return to the workforce in circumstances where there had been an agreed arrangement for the care of the child.

12. He specifically denies each and every allegation of physical assault and whilst he concedes that he forced open the bedroom door to get a change of clothes, he denies that he did so to perpetrate or continue to physically assault the mother as she alleges.

13. He contends that upon entering the bedroom the mother tried to stab him with scissors and bit him on the arm which required medical assistance.

14. On … August 2016 the father pleaded guilty to a single common assault charge and was ultimately sentenced to a 12 month good behaviour bond.

15. The father denies that he in any way caused the mother to haemorrhage.

16. The father points to his completion of the “Taking Responsibility” course conducted by Relationships Australia and concedes that he should not have forced his way into the bedroom.

Current arrangements

1. The father has spent supervised time with the child at the Children’s Contact Centre each Saturday between November 2017 and February 2019.

2. Consistent with the observations of a developing relationship with the child, the supervised time is now spent in “playgroups” as opposed to one on one supervision.

3. It appears uncontroversial that the Children’s Contact Centre has cancelled their supervised contact service and the father has been forced to seek an alternative organisation that is able to provide a service that offers the father to spend time with the child in a playgroup setting.

4. The father has enrolled in the Family Centre A program at a cost of $341 for each three hour visit. The father considers the cost of supervised time is onerous and he is only able to meet the current costs by borrowing funds from family and accessing his credit.

5. There is no suggestion that the mother is prepared to contribute towards the costs of continued supervision.

Single expert report

1. Following the recommendation in the report of 22 September 2017 a further family report was published on 20 April 2018. The family consultant challenged the father as to the level of insight that he may have gained from his parenting course and in particular how he might behave in the future.

2. The following paragraphs from the report are of assistance;

   24. The report writer asked [the father] what he thinks he needs to do to reassure [the mother] that he would not behave towards either her or the [the child] like this in the future. He said that if he had the chance, “I would say to [the mother] that I am very sorry about what happened. That I have changed myself a lot. Because of the course and thinking about things. And I am determined to attend more courses to make myself a better parent.”

   25. The report writer commented that [the father] could just be saying these things without necessarily meaning them, as a way to secure more time with [the child] and once this has occurred, return to his previous behaviours. [The father] said that he recognises that people might think this, “but before, I wasn’t really aware that I had a bad temper. Until I started doing the course. Then I did. I really want to change myself. So I get better as a father. And my mother can help me respond to [the child] better as well.”

   26.The report writer asked [the father] if the course had given him any insights into the gendered aspects of family violence. He said that, “I (see now) that I used to control the situation (with [the mother]) and dominate the decision making process. I can remember a situation when we were in China and we wanted to invite friends for dinner but we disagreed. Nowadays, I would act differently, I would give my wife more to say in the decision making, which would have been better.”…

3. The mother reported to the family consultant that “she still feels quite emotionally and physically vulnerable (as a result of her traumatic experiences with [the father]) and she had been trying out a number of different things to try and improve her mental health”

4. An important observation of the mother was there had not been any adverse reactions from the child spending time with the father apart from some initial tears.

5. She conceded that the Children’s Contact Centre allowed the child to bond with her father and it was her assessment that the child seems content in his care.

6. The mother was candid in her assessment of future parenting arrangements and considered that she was conflicted about the extent of time that the child should spend with the father and was not satisfied that the father had gained a level of insight that he professes to have achieved.       

7. In her evaluation the family consultant noted that the father was now able to acknowledge that he did have an anger management problem and that he was controlling in the relationship with the mother.

8. The family consultant observed at [70] the current state (as it then was) of the father’s relationship with the child;

   There is no doubt that, in this respect, things have changed for the better. In the intervening six months with the benefit of weekly, supervised visits, [the child] has established a positive relationship with her father. During this round of report interviews, she was affectionate towards her father and she appeared relaxed and comfortable in his presence. …     

9. The family consultant considered that there should be a cautious approach and that any changes should be made “in a child-focused and incremental, outcome-based manner”.

10. The family consultant recommended that following the completion of the “Taking More Responsibility” course the child should spend time with the father for a period of six months each Saturday from 11.00 am until 4.00 pm unsupervised save as to supervised handover. A condition of the unsupervised time commencing was that the father commence the “Circle of Security” parenting course and following the father completing the course his time should be extended to each alternate Sunday from 9.00 am to 5.00 pm and on one other Saturday each month from 11.00 am to 4.00 pm. The father has completed the following parenting courses:   

    a)Taking Responsibility;

    b)Circle of Security;

    c)Further counselling services conducted by B Group;

    d)PPP Parenting Program offered by C Group.

Family Centre A

1. The father relies upon a number of reports prepared by the supervisor of the father’s observed interaction with the child.

2. The reports appear as annexure “F” to the father’s affidavit filed 3 May 2019.

3. They are detailed and comprehensive and provide a convenient summary of the child’s time with the father. A consistent feature appears in the summary report of the interaction of the father and the child on 13 April 2019:

   [The child] ran to the father when she saw him and she started to talk to him in Mandarin. [The father] crouched down to embrace her and he acted animatedly to seeing her again.

   [The father] responded promptly and appropriately to [the child’s] wishes. He prepared a container of fruit, juice, water and her favourite biscuits as snacks. He would act animated to make [the child] laugh and she often smiled in response. He was quick to respond and clean [the child] up when she threw up.

   The visit was positive. [The child] enjoyed spending time with [the father] she said she enjoyed many aspects of the visit (e.g. biscuits, movie, ice cream) when I asked her.

Interim parenting

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the question of making findings on contested evidence and as highlighted by the following remarks, a cautious approach is desirable:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121. …

   122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

2. In Deiter & Deiter [2011] FamCAFC 82 the court considered the situation where the contested facts related to an assessment of risk and the following appears at [61]:

   …Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In Eaby & Speelman (2015) FLC 93-643 the Full Court further considered the issue at [18]:

   … that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

The law

1. The relevant principles in relation to parenting and interim proceedings are well settled. In Goode & Goode [2006] FamCAFC 1346 the Full Court considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461.

2. Section 60B of the Act outlines the principles underlying Part VII of the Act which provides for the best interests of the child to be met by ensuring that children have the benefit of both of their parents having a meaningful relationship in their lives and protecting children from physical or psychological harm, abuse, neglect or family violence.

3. Section 60CA provides that the court is to have regard to the best interests of the child as a paramount consideration and that is to be determined by consideration of the primary and additional considerations in s 60CC.

4. Section 61DA provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility other than in circumstances of abuse or family violence, where the court considers that in interim proceedings it would not be appropriate for the presumption to apply, or if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. If the presumption in s 61DA is to apply, and the court makes orders for equal shared parental responsibility, s 65DAA operates to require the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

Best interests

1. The mother continues to mistrust the father and considers that she is unlikely to be satisfied that his controlling coercive and at times physically violent behaviour is now the subject of genuine insight and regret.

2. The mother does concede that the child has developed a strong bond with the father and whilst she may well hold the view that the father is acting appropriately because he realises that he is under observation, the family consultant and more recently, the supervisor observing the father’s current interaction with the child are strongly supportive of a genuine bond having been developed between the father and the child.

3. The observations are of the child expressing delight at the time she spends with her father and it is appropriate that the observations of the family consultant and the supervisor should be given weight.

4. Family violence is however a matter that must be given proper consideration.

5. In Pascoe & O’Keefe & Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight. At [46] the following is said:

   46. Quite properly, the trial judge observed the issue of family violence must be treated seriously… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85-748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).

   47. The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither [of the children] exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.

6. It is important however that the advantages to the child of a meaningful relationship with the father as considered by the family consultant is supported provided it is safe to do so.

7. I find that the interest of the child will be served by a graduated increase in the time the father spends with the child together with relief from the constraint of supervision. The reports of the family consultant and supervisors do not support the contention that the father presents as a risk to the child.

8. The father continues to gain the assistance of therapeutic intervention with a counsellor and there is no reason to dispute the observations of the family consultant and the counsellor but there has been a qualitative change in the father’s presentation. The extent that the child reflects increasing delight in the time that she spends with the father may well be an indication that whatever his motivation may have been, the efflux of time and the extent to which he has committed to a process of insight and reformation as to his previous controlling behaviour is an important consideration.

1. I consider that the orders sought by the father in terms of paragraphs 3 and 4 of the application represent a reasonable increase in the father’s time which is likely to have a beneficial impact upon the child but also are of sufficiently limited duration that will limit the mother’s anxiety about the child’s time with the father being unsupervised.

2. I consider that when the time is extended to six hours, the frequency of the father’s time should be reduced to each alternate weekend.

3. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 July 2019.

Associate: 

Date:  10 July 2019