Mou and Chhoi

[2014] FamCA 108

FAMILY COURT OF AUSTRALIA

MOU & CHHOI [2014] FamCA 108

FAMILY LAW – CHILDREN – Application to vary parenting orders dismissed
FAMILY LAW – PROPERTY – Application to sell former matrimonial home dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Mou

RESPONDENT: Ms Chhoi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5013 of 2013

DATE DELIVERED: 5 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Moores

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

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

Orders

1. That the husband and the wife do all things necessary and sign all such documents as may be required to enable the husband to borrow such funds up to a maximum of 50 per cent of the value of the real property at I Street, Suburb B as may be required to satisfy the debts when properly due to the Australian Taxation Office and Medicare.

2. Prior to requiring the wife to sign any such documents referred to, the husband provide to the wife all such documents as will show that the said debts are properly due.

3. Upon being provided with the relevant loan funds, the husband apply them only towards the satisfaction of the Australian Taxation Office debt and the Medicare debt.

4. That the obligation for the payments of the costs of the said borrowings and also the payments of the debts be a matter for determination at trial.

5. That until further order, and subject to the views of the Principal to the contrary, the husband be at liberty to attend events at C Primary School to which parents are customarily entitled to attend provided that the husband does not come into physical contact with the child D during those events.

6. The wife attend the appointment on 20 May 2014 with Dr E made for her by the Independent Children’s Lawyer.

7. The application in a case filed 7 February 2014 and the response thereto filed 24 February 2014 are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5013 of 2013

Mr Mou

Applicant

And

Ms Chhoi

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The application in a case of Mr Mou, (“the husband”) filed 7 February 2014 was in the judicial duty list yesterday. After hearing from the parties and counsel for the Independent Children’s Lawyer, I said I would consider the material in greater detail overnight. I have done so.

2. The wife is Ms Chhoi. She appeared before the Court unrepresented and with an interpreter although her spoken English at various times indicated she understood what was being said.

3. Counsel for the Independent Children’s Lawyer appeared and put a position in relation to the parties’ proposals. In essence, he supported the wife’s position at this stage.

4. I propose to dismiss the husband’s application for an alteration to the extant parenting orders. I propose to dismiss the husband’s application for a sale of the former matrimonial home but otherwise intend to allow him to borrow against the property with the co-operation of the wife for the purposes of satisfying any provable debts to the Australian Taxation Office and Medicare.

5. The husband’s application concerned the two things just mentioned. In respect of the parenting matters, he sought an extensive set of orders that would cover the period of much of this year. Apart from that approach being opposed by the wife, the Independent Children’s Lawyer described it as bordering on an abuse of process. I do not agree that it is that simple. There are extant orders of Senior Registrar FitzGibbon from late 2013 which have not been reviewed and there is now a known hearing date of a first day before Johns J in May 2014.

6. The wife opposed the orders simply in her response by saying that the matter should await a trial. That is not satisfactory either.

7. The husband said there was a tax debt outstanding which is estimated at about $516,000 and there is currently an investigation being undertaken by Medicare where the husband, who is a healthcare professional, might be obliged to pay thousands of dollars back if he cannot justify the claims under the Medicare rules. That debt (if any) is yet to be quantified. He wanted to sell the former matrimonial home which is in joint names and which is unencumbered. The wife’s position is that the husband should look to other property for that satisfaction.

8. As an alternative, the husband proposed orders that would enable him to borrow up to 50 per cent of the home’s equity for the purposes of satisfying the debts.

9. The factual background of this case is complicated.  The proceedings began with the husband’s application in June 2013. They were filed in the Federal Circuit Court. There, he sought parenting orders concerning the parties’ child D, (“the child”) who is now aged almost 6 years.

10. The wife who was then represented filed a response on the return date but also a Notice of Risk of Child Abuse. That latter document alleged sexual abuse had been disclosed to the wife by the child. That notice referred to the affidavit but a fair reading of it would not suggest any statements were made by the child that implicated the husband.

11. The notice activated the Court’s requirement to advise the Department of Human Services who provided a report on 29 August 2013. The Department had received a report before the proceedings were even filed in the Court. The one allegation of a specific sexual nature was that the child had said that while watching TV and watching two people kissing, “that’s daddy and me playing”.

12. The Department and Police interviews provided no clear statements of sexual abuse by the child. There were significant allegations of family violence otherwise.

13. The Department assessment however was that the husband was a hoarder who had no insight into his problem and minimised the risk that it posed to the wife and the child.

14. In September 2013, Judge O’Sullivan transferred the matter to this Court.

15. On 30 October 2013, the parties came before Senior Registrar FitzGibbon in the Magellan Directions list. The Senior Registrar made an order that the parties attend for a psychiatric examination by Dr E. Nothing in the reasons that day indicated specifically what the wife’s attitude was to that appointment.  The issue was mentioned again in the adjourned hearing’s reasons but not such as to enable me to understand what the wife’s attitude was.

16. Needless to say, the wife did not attend the psychiatrist’s appointment but told the Independent Children’s Lawyer that she would explain it to the Court. She told the Court that this was another healthcare professional and that her husband being in the same profession was manipulative. That was not a basis to refuse to attend. If she had some such concerns, she should have raised them. The problem that has arisen is that Dr E saw the husband who now relies upon his report to request the Court to reconsider the supervision of his time with the child.

17. In the October hearing, the Senior Registrar made orders for supervised time and said that nothing in the evidence indicated any “disclosure” or “substantiation” of the allegations but other issues peripheral to it had been raised regarding family violence and the state of the home. Amongst the latter, concern was expressed about the husband hoarding medical supplies which could have been accessed by the child.

18. In a hearing before the Senior Registrar on 21 November 2013, further orders were made which the reasons show arose out of three sets of proposals proffered by the parties. The reasons showed the problems of the supervised time and how it was reconstructed to include a different supervisor. Needless to say, the husband’s time with the child was fixed at three hours twice per week.

19. In the November reasons, the Senior Registrar also said that the police and Department of Human Services had received no “disclosures” and that which had been raised had come from the mother as to what the child said to her.

20. Senior Registrar FitzGibbon then said:

    It is agreed that some time now should recommence being spent by [the child]…

    The emphasis I place is on the parties’ agreement.

21. The Senior Registrar then noted that the wife supported time but the husband reluctantly agreed for it to be supervised.

22. In her affidavit evidence filed on 24 February 2014, the wife deposed to the fact that the child said (and I interpolate here that the words were said in quotation marks) “daddy inserting finger in her vagina”. Accepting that English is not the wife’s first language and that she is not represented by a lawyer, I could understand the grammatical confusion but there is no temporal connection with the statement made by the child. I do not know whether that was investigated by the authorities or not.

23. Counsel for the Independent Children’s Lawyer submitted that these were new allegations but absent the wife’s attendance of Dr E, her filing a fresh notice of risk of child abuse, her indicating when these statements were made in the context of the husband not having been alone with the child in the second half of 2013 and no suggestion of any discussions with the Department or police, I consider it inappropriate to take the allegations into account.

24. That said, the husband’s counsel urged the Court to accept that the supervision was consented to reluctantly by the husband and that because of the wife’s refusal to go to Dr E, his concession or agreement to supervision was withdrawn. I do not accept that the 2013 orders can simply be reopened on that basis. The agreement was made at a time when the husband had advice and the Senior Registrar did not act upon the agreement alone.

25. Counsel for the husband said that Dr E did not say that the husband’s time should be supervised. However, Dr E did have the benefit of the Department documents and concerns. He said:

    The father demonstrated limited to no insight in regard to his hoarding and controlling behaviours and minimised the risk this posed to the mother and [the child].

26. That perception of Dr E is the same concern expressed by the Department of Human Services in the material filed pursuant to s 69ZW of the Family Law Act 1975 (Cth).

27. In my view, nothing justifies a change of the existing orders on the evidence presented. In his evidence, the husband said the orders had not worked but with the assistance of the Independent Children’s Lawyer and the wife, a professional supervisor was engaged. No suggestion was made that that is not working well despite his statement that he was concerned that the wife would come up with a reason why it should not proceed. He reiterated that the allegations against him are false but I am not in a position to test the evidence at all. Thus, nothing has changed.

28. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode and Goode (2006) FLC 93-286).

29. In Goode (supra) the Full Court indicated that the Court should:

    ·    Identify the competing proposals;

    ·    Identify the issues in dispute;

    ·    Identify any agreed or uncontested relevant facts;

    ·    Consider the matters in s 60CC that are relevant and if possible make findings.

30. The competing proposals are clearly set out above. The issue in dispute is whether the wife’s lack of response to her court ordered obligation to attend upon Dr E justifies an inference that she has something to hide from scrutiny in respect of the serious allegations. In my view, whilst the explanation of the mother for not attending Dr E is not only diaphanously thin, it shows little attempt is being made to sort out the serious parenting issues. I would not however find on this material that her approach to the litigation is such that I could conclude there is no problem here because of what Dr E said as I have described it above.

31. The relevant facts here are that there are allegations that need to be tested and they include not just sexual abuse allegations.

32. Section 65D(1) provides that in proceedings for a parenting order, the Court has a discretion no doubt guided by the various other parts of the legislation, to make such order as it thinks proper.  The Court should only exercise that power if it is in the best interests of the child but also necessary in the circumstances that prevail. 

33. In determining what is in the best interests of the child, the various considerations in s 60CC need to be taken into account. 

34. It is still a primary consideration for the Court to consider the protection of a child from any form of harm. That is, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and not just sexual abuse. There are many allegations here which concern family violence which are disputed. To the extent that such concerns clash with the benefit that the child might obtain from a meaningful relationship with her father, the protection must take priority. Absent being able to make findings about that on the evidence before me, it would not be appropriate to make any finding about all of the s 60CC factors.

35. I do not know what the capacity of the child to express a view about the time sought by the husband.  The evidence about the nature of the relationship between the child and her parents is conflictual. Whilst both parents claim to have had a very significant role in the child’s life, there are many disputes about the roles they fulfilled and the family violence that occurred.  I cannot make findings about those things nor should I endeavour to do so when the orders were made after a contested hearing only last November. Nothing has changed of significance since that time. I also do not know therefore the effect of the husband’s proposed orders on the child if she was to spend time with her father.

36. Section 61DA also requires the Court to apply a presumption about parental responsibility but that should not be applied in this interim hearing because of the difficulty with making findings on such limited evidence. I propose therefore not to consider the parental responsibility issue.

37. I find therefore that the husband’s application cannot succeed as initially pleaded.

38. At the hearing, the husband’s counsel also sought an order that the husband be able to attend a variety of school events that he had previously attended. That was opposed by the wife for reasons that remain obscure. The Independent Children’s Lawyer opposed the orders because of the constraints imposed by the supervision order. I note there is in place an intervention order.

39. I see no reason why the husband should not be involved in the child’s school activities if they do not bring him into contact with the child such that the supervision restrictions would not apply. That way, he can not only have something to discuss with the child at contact visits but also maintain knowledge of her development. Orders should be made accordingly.

40. The financial relief issues were also different at the hearing from that which were originally pleaded.

41. The husband sought an order for the sale of the home. The wife said he could sell something else. The home is unencumbered and the wife wants to retain it in the settlement. The husband wants to retain the only asset that he might otherwise live in. The uncontroversial evidence is that other real properties can either not be sold or would not solve the dilemma caused by the impending taxation and Medicare claims.

42. The husband produced evidence from his accountant but all that did was indicate that the debt to the Tax Office is looming and will have to be paid. The wife simply shrugged that off but at some stage, it will have to be faced. The wife’s substantive application was imprecise but when pressed (as she will be shortly before Johns J) she said she wanted the house. Counsel for the husband said that was fanciful. I am not in a position to decide.

43. It seems that there is no immediate threat of action by the ATO but there certainly is no other way on the evidence that the debt can be met other than by borrowing money. It is already running with penalty interest. The borrowing of money will require the wife’s co-operation. She is unwilling to see that occur but the increasing debt caused by the interest has to stop. Even if the debt ultimately comes out of the husband’s entitlements, the divisible assets would still seem modest.

44. The husband proposed that he be able to borrow against the home in which the wife lives as it is in joint names and unencumbered. There is no prejudice to the wife because an adjustment can be made that would ultimately see the sale of the husband’s other properties if the wife’s position is correct. The wife’s objections to the proposal were that the husband would default on the mortgage commitment and that would cause a sale by a different method but she can make the application to the Court if that occurs and then seek a sale of the other realty.

45. In the circumstances, the interim order sought by the husband should be made enabling him to borrow up to 50 per cent of the agreed value of the home and he be responsible for the servicing of the debt until further order.

46. In respect of Dr E, I was asked to make an order that the wife attend and as the wife accepted that she had to undertake the task with the hearing before Johns J looming, I will make the order again.

I certify that the preceding Forty Six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 March 2014.

Associate: 

Date: