Nghiem and Alberts & Ors
[2019] FamCA 704
•3 October 2019
FAMILY COURT OF AUSTRALIA
| NGHIEM & ALBERTS AND ORS | [2019] FamCA 704 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Where there are two children aged three years and nine years who have different fathers – Where the mother seeks equal shared parental responsibility for one child and sole parental responsibility for the other – Where the mother seeks that both children live with her – Where the Independent Children’s Lawyer (“ICL”) proposes that the children live with their father and paternal grandmother respectively and that those parties have parental responsibility – Where the other parties largely agree with the ICL’s proposal – Where there are allegations of family violence made against each of the parents – Where the mother has engaged in family violence against the elder child – Where Y’s father engaged in family violence against the mother - Orders made largely in accordance with those sought by the ICL – Mother to engage in family therapy prior to resuming time with the elder child. FAMILY LAW – COURTS AND JUDGES – Disqualification – Oral application by the mother that the judge recuse himself based on a reasonable apprehension of bias – Where it was submitted on behalf of the mother that the judge’s comments indicated a level of pre-judgment – Where it was submitted that it was open to the Court to make findings at any stage of the proceedings – Where the comments forming the basis of the application were made by the judge at the conclusion of evidence and prior to submissions on behalf of the mother – Where the fictional observer, properly advised, would not reasonably apprehend bias – Application dismissed. |
| Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61B, 61DA, 65D, 65DAA, 65Y, 69ZR Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 |
| Champness & Hanson (2009) FLC 93-407 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Nghiem |
| 1st RESPONDENT: | Mr Alberts |
| 2nd RESPONDENT: | Mr Thach |
| 3rd RESPONDENT: | Ms Hoang |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 679 | of | 2017 |
| DATE DELIVERED: | 3 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 1 - 9 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Harris Freidman Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Lioumis |
| SOLICITOR FOR THE 1ST RESPONDENT: | Godden Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Fermanis |
| SOLICITOR FOR THE 2ND RESPONDENT: | Phillip A Wilkins & Associates |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Turnbull |
| SOLICITOR FOR THE 3RD RESPONDENT: | Forshaw Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous parenting orders in relation to the children, X, born … 2016 and Y, born …, be discharged.
X
X live with the first respondent father, Mr Alberts.
Mr Alberts have sole parental responsibility for X.
Prior to making any major long term decision concerning X, other than in circumstances of medical emergency, Mr Alberts shall:
(a)notify the mother in writing of his proposed decision;
(b)take into account any views expressed by the mother in relation to that proposed decision, and
(c)notify the mother in writing once a final decision has been made.
Y spend time with X as agreed between the paternal grandmother and Mr Alberts.
Subject to the conditions set out in Order 7, X shall spend time with the mother as follows:
Stage 1
(a)for a period of four weeks from the date of these Orders, from 10.00 am – 12 noon each Saturday and Sunday at a park or indoor play centre agreed in writing between the mother and Mr Alberts, such time to be unsupervised but Mr Alberts may remain in the vicinity if he wishes during the first two weeks.
Stage 2
(b) thereafter, for a period of four weeks:
(i)from 2.30 pm – 5.30 pm each Wednesday and
(ii)from 9.30 am – 12.30 pm each Saturday.
(c)for the purposes of Order 6(b)(i), the mother is to collect X from his child care centre, the K Centre at Suburb J at 2.30 pm and return him at 5.30 pm to that child care centre, or at such other location as is agreed in writing between the mother and Mr Alberts.
(d)for the purposes of Order 6(b)(ii), changeovers are to occur at McDonald’s Suburb M, or such other location agreed in writing between the mother and Mr Alberts.
Stage 3
(e) thereafter, for a period of four weeks:
(i)from 2.30 pm – 5.30 pm each Wednesday; and
(ii)from 9.30 am – 3.00 pm each Saturday.
(f)for the purposes of Order 6(e)(i), the mother is to collect X from his child care centre at 2.30 pm and return him at 5.30 pm to that child care centre, or at such other location as is agreed in writing between the mother and Mr Alberts.
(g)for the purposes of Order 6(e)(ii), changeovers are to occur at McDonald’s Suburb M, or such other location agreed in writing between the mother and Mr Alberts.
Stage 4
(h) thereafter, until 1 June 2020:
(i)from 2.30 pm – 5.30 pm each Wednesday;
(ii)from 2.30 pm – 5.30 pm each Friday; and
(iii)from 9.30 am – 5.00 pm each Saturday.
(i)for the purposes of Orders 6(h)(i) and 6(h)(ii), the mother is to collect X from his child care centre at 2.30 pm and return him at 5.30 pm to that child care centre, or at such other location as is agreed in writing between the mother and Mr Alberts.
(j)for the purposes of Order 6(h)(iii), changeovers are to occur at McDonald’s Suburb M, or at such other location as is agreed in writing between the mother and Mr Alberts.
Stage 5
(k) from 1 June 2020 until 1 September 2020:
(i)each week from 2.30 pm – 5.30 pm on Wednesday, and
(ii)each week from 2.30 pm on Friday until 5.00 pm on Saturday.
(l)for the purposes of Orders 6(k)(i) and 6(k)(ii), the mother is to collect X from his child care centre at 2.30 pm and return him to Mr Alberts at that centre for the purposes of Order 6(k)(i) and to McDonald’s Suburb M for the purposes of Order 6(k)(ii), or at such other location as is agreed in writing between the mother and Mr Alberts.
Stage 6
(m) from 1 September 2020 until the commencement of Term 1 2021:
(i)each week from 2.30 pm – 5.30 pm on Wednesday, and
(ii)each alternate weekend from 2.30 pm on Friday until 5.00 pm on Sunday.
(n)for the purposes of Order 6(m)(i) and Order 6(m)(ii), the mother is to collect X from his child care centre at 3.00 pm and return him to Mr Alberts at that centre for the purposes of Order 6(m)(i) and to McDonald’s Suburb M for the purposes of Order 6(m)(ii), or at other such location as is agreed in writing between the mother and Mr Alberts.
Stage 7
(o)during school terms from the commencement of Term 1 2021 onwards, in a two-week cycle as follows:
(i)week 1 – From the conclusion of school on Friday until the commencement of school on Monday, and
(ii)week 2 – From the conclusion of school on Wednesday until the commencement of school on Thursday.
(p)during the school holidays at the end of Terms 1, 2 and 3 in 2021 as follows:
(i)from the conclusion of school on the last day of term until 5.00 pm on the Wednesday in the first week of the school holiday period.
(q) during the school holidays at the end of Term 4 in 2021 as follows:
(i)from 9.30 am on the Monday in the first week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter.
(r) during school holiday periods from 2022 onwards:
(i)for one half of the school holidays at the end of Terms 1, 2 and 3 each year;
(ii)during the school holidays at the end of Term 4 in odd-numbered years – From 9.30 am on the Monday in the first week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter, and
(iii)during the school holidays at the end of Term 4 in even-numbered years – From 9.30 am on the Monday in the second week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter.
(s) for the purposes of Orders 6(o) – 6(r):
(i)changeovers on school days shall occur at X’s school, and on non-school days, shall occur at McDonald’s Suburb M, or such other location agreed in writing between the mother and Mr Alberts.
(ii)any reference to “the conclusion of school” includes after school care, such that the mother may collect X from after school care if X is enrolled on the relevant day.
(iii)any reference to “the commencement of school” includes before school care, such that the mother may deliver X to before school care if X is enrolled on the relevant day.
(t)X shall spend such other times with the mother as may be agreed in writing between the mother and Mr Alberts.
X’s time with the mother as set out in Order 6 shall be conditional upon the mother’s compliance with the following orders:
(a)the mother is to forthwith re-engage in counselling with Dr N, Psychologist for the purposes of assisting the mother with:
(i)emotional regulation;
(ii)managing stress; and
(iii)any other issues that Dr N considers appropriate.
(b)for the purposes of Order 7(a), the mother is to contact Dr N within seven days of the date of these Orders and make an appointment to attend upon Dr N at the earliest opportunity.
(c)the mother is to forthwith advise the Independent Children’s Lawyer of the date of the first appointment with Dr N.
(d)the mother is to continue to attend counselling with Dr N at such frequency and for such length of time as recommended by Dr N.
Upon being advised by the mother of the date of the first appointment with Dr N in accordance with Order 7(c), the Independent Children’s Lawyer is requested to provide Dr N with the following documents:
(i)a copy of Dr L’s report dated 7 May 2019;
(ii)a sealed copy of these Orders; and
(iii)a copy of the reasons for judgment in these proceedings.
The mother and Mr Alberts do all things necessary to arrange family therapy with a therapist nominated by the Independent Children’s Lawyer (“the therapist”) for the purposes of improving their capacity to communicate and co-operate with each other, and to assist them in the implementation of the parenting arrangements set out in Order 6.
For the purposes of Order 9:
(a)the mother and Mr Alberts are to contact the therapist within seven days of receiving details from the Independent Children’s Lawyer, and make an appointment with the therapist at the earliest opportunity.
(b)the mother and Mr Alberts each have leave to provide the therapist with the following documents:
(i)a copy of Dr L’s report dated 7 May 2019;
(ii)a sealed copy of these Orders; and
(iii)a copy of the reasons for judgment in these proceedings.
(c)the mother and Mr Alberts shall each attend appointments with the therapist as recommended by the therapist and comply with all reasonable recommendations made by the therapist.
(d)in the event that the therapist requests to meet with X, the mother and/or Mr Alberts will ensure that X attends upon the therapist.
(e)the mother and Mr Alberts shall share the costs of the family therapy equally.
For the purposes of Order 6, in the event that Mr Alberts relocates his place of residence away from the P Area, then changeovers on days when X is not at day care or school will take place at a public location nominated by Mr Alberts approximately half way between his home and the mother’s home.
Y
Y shall live with the paternal grandmother, Ms Hoang.
The paternal grandmother and the second respondent father, Mr Thach (“Mr Thach”), have equal shared parental responsibility for Y.
Y shall spend time with Mr Thach as agreed between Mr Thach and the paternal grandmother.
Y shall spend time with X as agreed between the paternal grandmother and Mr Alberts.
Prior to making any major long term decision concerning Y being made, other than in circumstances of medical emergency, the paternal grandmother shall:
(a) notify the mother in writing of the proposed decision;
(b)ensure that any views expressed by the mother in relation to that proposed decision are taken into account; and
(c) notify the mother in writing once a final decision has been made.
Subject to the conditions set out in Order 19, Y shall spend time with the mother as follows:
(a)commencing after the completion of six family therapy sessions between the mother and Y in accordance with Order 19, for a period of one month:
(i)supervised time once per week for two hours on a Saturday or Sunday, with days and times to be agreed in writing between the mother and the paternal grandmother;
(ii)time to be supervised by GG Services with the mother to bear the costs.
(b) thereafter, for a period of five months:
(i)supervised time once per week for four hours on a Saturday or Sunday, with days and times to be agreed in writing between the mother and the paternal grandmother;
(ii)time to be supervised by GG Services with the mother to bear the costs.
(c) thereafter, for a period of six months:
(i)from 10.00 am to 5.00 pm each Sunday with changeovers to occur at the O Childcare at the R Shopping Centre, or such other location agreed in writing between the mother and paternal grandmother.
(d) thereafter, for a period of three months:
(i)each week from 10.00 am Saturday until 10.00 am Sunday with changeovers to occur at O Childcare at the R Shopping Centre, or such other location agreed in writing between the mother and paternal grandmother.
(e) thereafter:
(i)in the event that X’s school is within a 10 kilometre radius of Y’s school, then Y will spend time with the mother during school terms on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
(ii)in the event that X’s school is not within a 10 kilometre radius of Y’s school, then Y will spend time with the mother during school terms on each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday.
(iii)during school holiday periods, Y will spend time with the mother at the same time as X’s time with the mother in accordance with Orders 6(p), 6(q) and 6(r).
(f)Y shall spend such other times with the mother as may be agreed in writing between the mother and the paternal grandmother.
For the purposes of Order 17(e):
(a)changeovers on school days shall occur at Y’s school, and on non-school days, shall occur at O Childcare at the R Shopping Centre, or such other location as is agreed in writing between the mother and the paternal grandmother;
(b)any reference to “the conclusion of school” includes after school care, such that the mother may collect Y from after school care if Y is enrolled on the relevant day; and
(c)any reference to “the commencement of school” includes before school care, such that the mother may deliver Y to before school care if Y is enrolled on the relevant day.
Y’s time with the mother as set out in Order 17 shall be conditional upon the mother’s compliance with the following Orders:
(a)the mother is to forthwith engage in family therapy with a family therapist nominated by the Independent Children’s Lawyer in consultation with Y’s counsellor, Dr C (“the family therapist”), for the purposes of repairing her relationship with Y and to assist in the implementation of the parenting arrangements set out in Order 17;
(b)the mother is to contact the family therapist within seven days of receiving details from the Independent Children’s Lawyer, and make an appointment with the family therapist at the earliest opportunity;
(c)the mother is to forthwith notify the Independent Children’s Lawyer of the date of her first appointment with the family therapist;
(d)the mother shall attend appointments with the family therapist as recommended by the family therapist and comply with all reasonable recommendations made by the family therapist; and
(e)the arrangements for Y to spend time with the mother in accordance with Order 17 will not commence until the family therapist has completed six sessions of family therapy with the mother and Y.
For the purposes of the family therapy referred to in Order 19:
(a)the paternal grandmother is to ensure that Y attends all appointments requested by the family therapist;
(b)the paternal grandmother and Mr Thach shall each attend appointments with the family therapist if requested to do so, and shall each comply with all reasonable recommendations made by the family therapist; and
(c) the mother is to bear the costs of the family therapy.
Upon being advised by the mother of the date of her first appointment with the family therapist in accordance with Order 19(c), the Independent Children’s Lawyer is requested to provide the family therapist with the following documents:
(i)a copy of Dr L’s report dated 7 May 2019;
(ii)a sealed copy of these Orders; and
(iii)a copy of the reasons for judgment in these proceedings.
Any reference in these Orders to agreement between parties “in writing” shall include text message.
In the event that Y suffers a medical emergency or serious illness requiring admission to hospital, when she is in the care of the paternal grandmother or Mr Tran, the paternal grandmother shall, as soon as reasonably practicable:
(a)cause the mother to be notified of the medical emergency or serious illness;
(b)cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
In the event that Y suffers a medical emergency or serious illness requiring admission to hospital, when she is in the care of the mother, she shall, as soon as reasonably practicable:
(a)cause the paternal grandmother to be notified of the medical emergency or serious illness;
(b)cause the paternal grandmother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)authorise the medical practitioner or medical facility to discuss with the paternal grandmother the child’s medical condition or illness.
In the event that X suffers a medical emergency or serious illness requiring admission to hospital, when he is in the care of Mr Alberts, he shall, as soon as reasonably practicable:
(a)cause the mother to be notified of the medical emergency or serious illness;
(b)cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
In the event that X suffers a medical emergency or serious illness requiring admission to hospital, when he is in the care of the mother, she shall, as soon as reasonably practicable:
(a)cause Mr Alberts to be notified of the medical emergency or serious illness;
(b)cause Mr Alberts to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)authorise the medical practitioner or medical facility to discuss with Mr Alberts the child’s medical condition or illness.
Each of the parties is restrained from making critical or derogatory remarks in relation to any other party in these proceedings, or a family member of any other party in these proceedings, to or in the presence or hearing of either of the children, and each party shall do all things necessary to ensure that no other person makes such remarks.
The mother and Mr Alberts shall keep each other advised of their contact telephone numbers (including both landline and mobile phone number if applicable) and email addresses, and any changes to these details within seven days of such change occurring.
The mother and paternal grandmother shall keep each other advised of their contact telephone numbers (including both landline and mobile phone number if applicable) and email addresses, and any changes to these details within seven days of such change occurring.
The mother is at liberty to attends events to which parents are generally invited at either of the children’s schools, provided that:
(a)the mother gives prior notice in writing of her intention to attend to Mr Alberts (in relation to X) or the paternal grandmother (in relation to Y); and
(b)the mother shall not attend any such events in relation to Y until Y has commenced spending time with the mother in accordance with Order 17.
The mother is authorised to obtain school reports from any school attended by Y and X now and in the future, and this Order shall act as sufficient authority for that purpose.
The mother is at liberty to liaise directly with each child’s school in relation to the child’s progress.
Leave is granted to Mr Alberts to provide a sealed copy of these Orders to X’s current child care centre and any child care centre or school X attends in the future.
Leave is granted to the Independent Children’s Lawyer and the paternal grandmother to provide a sealed copy of these Orders to VV School and any other school Y attends in the future.
The mother and Mr Alberts are each hereby restrained from using any form of physical discipline on X.
The mother, Mr Thach and the paternal grandmother are each hereby restrained from using any form of physical discipline on Y.
The mother and Mr Alberts, their servants and/or agents be and are hereby restrained, for a period of 12 months from the date of these orders, from removing or attempting to remove or causing or permitting the removal of the child, X (male) born … 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for 12 months from the date of these orders.
Following completion of her obligations under Orders 8, 9, 19(a) and 21 the Independent Children’s Lawyer is discharged.
Within 21 days of receiving a written request from the Independent Children’s Lawyer, the mother and Mr Alberts shall each pay one half of Dr L’s fees for attending Court on 5 July 2019 (such sum to be calculated after taking into account any contribution to be paid by Legal Aid NSW on behalf of Mr Thach and the paternal grandmother).
Within three months of the date of these Orders, the mother and Mr Alberts shall each pay a contribution towards the costs of the Independent Children’s Lawyer in these proceedings in the sum of $6,202.50.
Leave is granted to any party to restore the proceedings to the list within two months after the date of these orders in relation to the machinery provisions of the orders.
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 Nghiem & Alberts & Thach & Hoang 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 SYDNEY |
FILE NUMBER: SYC679 of 2017
| Ms Nghiem |
Applicant
And
| Mr Alberts |
First Respondent
And
Mr Thach
Second Respondent
And
Ms Hoang
Third Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to two children, X born in 2016 who is three years of age and Y born in 2010 who is nine years of age. Ms Nghiem (“the mother”) is the applicant and mother of both children. The first respondent and father of X is Mr Alberts. The second respondent and father of Y is Mr Thach. The third respondent and paternal grandmother of Y is Ms Hoang (“the paternal grandmother”).
Applications
The mother sought the following orders:
FINAL ORDERS PROPOSED BY APPLICANT – 9 JULY 2019
1.That all previous Orders be discharged.
2.That the mother shall have sole shared [sic] parental responsibility for the child Y born in 2010.
3.The first respondent and the mother shall have equal shared parental responsibility for the child X born in 2016.
4.That X born in 2016 live with the Mother.
5.That Y born in 2010 live with the Mother.
6.That the applicant and second respondent sign all documents and authorities required to enrol Y to attend at B School
7.That the applicant attend upon Dr C at D Family Services, or such as medical practitioner as he may recommend, for family therapy with Y.
8.That for the purpose of Order 5 and pursuant to section 13C of the Family Law Act 1975, the applicant, the second Respondent and the third respondent contact D Family Services at E Street, Suburb F,within 48 hours of the date of these Orders to arrange initial consultation for the applicant and Y to participate in therapeutic counselling (‘the Counselling’) with Dr C (‘the Therapist’) at the earliest possible date, specifically for the purpose of psycho-education and the re-introduction of Y to the applicant, and for that purpose each party shall ensure that:
a.they attend at such times, dates and places as requested by the Therapist, with Y; and
b.such fees as may be charged for the Counselling are paid jointly in equal shares by them;
c.they participate in and complete such sessions of Counselling as are assessed as suitable and offered by the therapist.
9.That for a period of 3 months following the making of these orders Y spend no time with the second respondent and the paternal grandmother.
10.That from the date 3 months following the making of these orders, Y spend time with the second respondent and the paternal grandmother from 3pm to 6pm on Monday, Wednesday and Sunday each week.
11.That for the purpose of Order 10 each of the Mother, the second respondent and the paternal grandmother do all acts and things and sign all documents to arrange to appoint GG Services to provide the supervision, with all costs to be paid by the second respondent and/or the paternal grandmother.
12.That from the date 3 months following the expiration of the period provided by order 10, Y spend time with the second respondent and paternal grandmother as follows –
a.During school term:
i.Every second weekend from the end of school day on Friday until commencing of school day on Monday.
ii.Every Wednesday at the end of school hour until the commencing of school day on Thursday.
b.During school holiday of term 1, term 2 and term 3, for the 2nd week of school holiday from Monday 8am until the commencement of the 1st day of the term.
c.During summer school holiday
i.for the 1st three weeks of summer school holidays in even numbered years.
ii.for the 2nd three weeks of summer school holiday in odd numbered years.
d.During the Easter period, from 9am Friday to 9am Sunday.
e.During the Christmas period, from 9am until 3pm on Christmas day.
f.On Father’s Day, from 9am Sunday to 9am Monday
g.On Y’s birthday, from 9am to 3pm if it is on the weekend.
13.That X spend time with the first respondent as follows –
a.During school term or while attending childcare, from the conclusion of school or childcare on Thursday until the commencement of school or childcare on Monday in week 1, and from after school or childcare on Tuesday until the commencement of school or childcare on Thursday in week 2;
b.During school holiday of term 1, term 2 and term 3, (when X commences school, for the 2nd week of school holiday from Monday 8am until the commencement of the 1st day of the term.
c.During summer school holiday (when X commences school)
i.for the 1st three weeks of summer school holidays in even numbered years.
ii.for the 2nd three weeks of summer school holiday in odd numbered years.
d.During the Easter period, from 9am Friday to 9am Sunday.
e.During the Christmas period, from 9am until 3pm on Christmas day.
f.on Father Day from 9am Sunday to 9am Monday
g.on X’s birthday, from 9am to 3pm if it is on the weekend.
14.That for the purpose of Orders 10, 12 and 13, the child be collected from school at the commencement of time and returned to school at the conclusion of time, if it is a school day, and if it is not a school day then the child be collected from and delivered to Suburb J train station at the commencement and conclusion of time.
15.For the purpose of Order 8, each parent and the paternal grandmother (if appropriate) to provide all consents, authorities and cooperation as are necessary to enable the attendance upon and referral by a General Practitioner by way of Medicare Mental Health plan to aid and fund the Counselling.
16.In the alternative to Orders 9 to 12 inclusive, if the Court finds that it is not satisfied that there is no risk to Y in living with the mother, then Y live with the paternal grandmother and spend time with the mother as follows:
a.(i) for a period of one month following the making of these Orders, each Saturday from 1pm to 3pm to be supervised by GG Services;
(ii)for the purpose of Order 16(a)(i), Y is to be delivered by the second respondent and/or the paternal grandmother to the indoor playcentre at G Shopping Centre at the commencement of the time, and collected by them from there at the conclusion of the time, and the Mother is to be responsible for the cost of the supervision;
b.From the date one month following the making of these orders, from the conclusion of school or 3pm if not a school day until 6pm on Monday, Wednesday and Saturday each week, to be unsupervised;
c.(i) from the date 3 months following the expiration of the period described by Order 16b from 9am on Saturday to the commencement of school or 9am if not a school day, on Wednesday each week;
(ii)for the purpose of Order 16(c)(i), the mother collect Y from school or from Suburb H Railway Station if not a school day at the commencement of time, and return Y to school or to Suburb H Railway Station if not a school day, at the conclusion of time;
d.During school holiday of term 1, term 2 and term 3, for the 2nd week of school holiday from Monday 8am until the commencement of the 1st day of the term.
e.During summer school holiday
i.for the 1st three weeks of summer school holidays in even numbered years.
ii.for the 2nd three weeks of summer school holiday in odd numbered years.
f.During the Easter period, from 9am Friday to 9am Sunday.
g.During the Christmas period, from 9am until 3pm on Christmas day.
h.On Mother’s Day, from 9am Sunday to 9am Monday
i.On Y’s birthday, from 9am to 3pm if it is on the weekend.
17.That in the alternative to Order 13, if the Court finds that it is not satisfied that there is no risk to X living with the mother, then X spend time with the mother as follows:
a.For a period of one month following the making of these Orders, each Monday and Tuesday from 3pm to 6pm and each Sunday from 9.30am until 12.30pm;
b.(i) from the date one month following the date of making these orders from 9.00am Sunday to 9.00am Wednesday each week;
(ii)for the purpose of order 17(b)(i) the first respondent deliver X to the mother at Suburb J Library at the commencement of the time and the mother deliver X to childcare at the conclusion of the time;
c.From the date upon which X commences primary school/kindergarten in 2021, from the conclusion of school or 3pm if not a school day on Monday until the commencement of school or 9am if not a school day, the following Monday, each alternate week commencing on the first Monday following the start of term 1;
d.During school term or while attending childcare, from 8am Sunday to the end of school or childcare on Monday and from the commencement of school or childcare on Thursday to 8am on Saturday, every week
e.During school holiday of term 1, term 2 and term 3, (when X commences school, for the 2nd week of school holiday from Monday 8am until the commencement of the 1st day of the term.
f.During summer school holiday (when X commences school)
i.for the 1st three weeks of summer school holidays in even numbered years.
ii.for the 2nd three weeks of summer school holiday in odd numbered years.
g.During the Easter period, from 9am Friday to 9am Sunday.
h.During the Christmas period, from 9am until 3pm on Christmas day.
i.on Mother’s Day from 9am Sunday to 9am Monday
j.on X’s birthday, from 9am to 3pm if it is on the weekend.
18.That all parties sign all documents required for the issuing of passports for each child and to maintain the currency of such passports, with the passports to be retained by the Sydney Registry of the Family Court of Australia to be released to the parties in accordance with their written agreement or by an Order of the Court.
19.That each of the mother and the first respondent be permitted to take X out of the Commonwealth of Australia for a holiday for a period of up to 14 days duration, and each of the mother and the second respondent and the paternal grandmother be permitted to take Y out of the Commonwealth of Australia for a holiday for a period up to 14 days duration, on the following conditions:
a. The travelling parent provide to the non travelling parent a full and comprehensive itinerary at least 2 months prior to the scheduled departure date including but not limited to:
(i) Flight details;
(ii) Copies of return air tickets;
(iii) Detailed information of all destinations and accommodation including street address and contact telephone numbers;
(iv) Detailed information on all persons who will be travelling with the child other than the travelling parent;
(v) Neither parent make any alteration/s to the travel arrangements without first seeking the consent of the non travelling parent, which consent shall not be unreasonably withheld;
(vi) In the event that the travelling parent is required to make alterations to the travel arrangements due to circumstances beyond their control, then the travelling parent, within 24 hours of the alterations, provide to the non travelling parent the details set out above;
(vii) The travelling parent ensure and facilitate telephone contact between the child and the non travelling parent at least twice each week while the child is away.
20.That each party be restrained by injunction from denigrating any other party to the proceedings, and from allowing or abiding any other person doing so, and in the event that any other person does so, they shall remove the child from the presence of that person immediately.
21.That no party show any document produced in or for these proceedings or discuss any issue/s in these proceedings to the children, nor allow or abide any other person doing so.
22.That all parties be at liberty to attends events to which parents are generally invited at either of the children’s schools, provided that:
a.The Mother gives prior notice in writing of her intention to attend to Mr Alberts (in relation to X) or the Paternal Grandmother (in relation to Y), and
b.The Mother shall not attend any such events in relation to Y until Y has commenced spending time with the Mother in accordance with Order 14.
23.That the Mother and Mr Alberts are each hereby restrained from using any form of physical discipline on X.
24.That the Mother, Mr Thach and the Paternal Grandmother are each hereby restrained from using any form of physical discipline on Y.
Mr Thach proposed different orders over the life of the proceedings. Ultimately Mr Thach adopted the orders sought and the submissions made on behalf of the Independent Children’s Lawyer (“ICL”), insofar as they would apply to Y.
The paternal grandmother of Y also changed the orders she sought over time. She ultimately substantially adopted the proposals made by the ICL save that she also sought an order that the communication between the mother and Y referred to in Orders 17(a) and (b) should be only in English.
Various orders were sought by Mr Alberts during the proceedings. However, at the commencement of final submissions his counsel said that he accepted and adopted the proposals of the ICL save that:
·The times proposed for Wednesdays should be 2.30 pm to 5.30 pm rather than 3.00 pm to 6.00 pm with X being picked up and delivered to and from his current child care centre, the K Centre at Suburb J; and
·Beyond the ICL’s proposals, Mr Alberts presses orders numbered 9 to 22 inclusive which were contained in the document titled Amended Minute of Order proposed by Mr Alberts which is exhibit 59 as follows:
…
9.That the father shall notify the mother and keep the Mother notified of the child’s child care and school. The father shall do all things and acts necessary to provide consent for the Mother to collect and deliver the child to the school or childcare centre as nominated in Order 4.
10.Unless otherwise agreed the father shall not be present at the child school or pre-school at any time when the mother is collecting or delivering the child in accordance with these orders.
11.That the child X shall spend time with Y on a weekly basis and such time to be as agreed with Mr Mr Thach and [Ms Hoang] [sic].
12.That in conjunction with the commencement of time in Orders 4, 5, 6 and 7 the mother and father shall do all things necessary to arrange Family Therapy with a therapist nominated by the Independent Children’s Lawyer and thereafter:
a.The mother and father shall attend appointments as directed and shall follow the nominated therapists reasonable recommendation’s [sic],
b.The mother shall facilitate the child’s attendance upon nominated therapist on dates and times as directed by the nominated therapists.
13.That leave be granted to the mother to provide to the Therapist a copy of the Expert Report of Dr L dated 25 June 2019.
14.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no party makes critical comments about the other party in the presence or hearing of the children.
15.That each party is permitted to serve a copy of these Orders upon the children’s schools that they attend from time to time and thereafter each party is authorised to liaise directly with the school concerning the children’s progress and receive copies of all notices, reports and such other documents that parents are ordinarily entitled to receive from the school.
16.That in the event of a child suffering a medical emergency or serious illness requiring admission to hospital, when the child is in the father’s care, the father shall, as soon as reasonably practicable:
a.Cause the mother to be notified of the medical emergency or serious illness;
b.Cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
17.That in the event that the child suffers a medical emergency or serious illness requiring admission to hospital, or attendance upon a medical practitioner or allied health provider which the child is in the mother’s care, the mother shall, as soon as reasonably practicable:
a.Cause the Father to be notified of the medical emergency or serious illness;
b.Cause the Father to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the Father the child’s medical condition or illness.
18.That within 14 days of the date of these orders the mother shall provide to the father a postal address for the purpose of the father sending letters, cards and gifts as provided for in these orders, and the mother shall keep the father informed of any change to that postal address.
19.That within 14 days of the date of these orders the father shall provide to the mother a postal address for the purpose of the children sending letters as provided for in these orders, and the father shall keep the mother informed of any change to that postal address.
20.That the parties shall communicate with one another via the Our Family Wizard Application. Both parties shall forthwith:
a.Do all things necessary to sign up to the Our Family Wizard Application;
b.Notify the other party of the necessary details so that they can communicate with one another
c.Each be responsible for the payment of their own fees to maintain a subscription to Our Family Wizard Application.
21.That each party, their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [sic] X born in 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children [sic] on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order of the Court.
22.The mother be restrained by injunction from approaching the father’s home, motor vehicles or his place of employment.
The ICL’s proposals were set out in a draft document submitted during final submissions on 9 July 2019. That document was provided in final form by email on 10 July 2019. The ICL sought:
1.That all previous parenting orders in relation to the children, X, born in 2016, and Y, born in 2010, be discharged.
X
2.That X live with the 1st Respondent Father, Mr Alberts.
3.That Mr Alberts have sole parental responsibility for X.
4.That, prior to making any major long term decision concerning X, other than in circumstances of medical emergency, Mr Alberts shall:
(a)Notify the Mother in writing of his proposed decision;
(b)Take into account any views expressed by the Mother in relation to that proposed decision, and
(c)Notify the Mother in writing once a final decision has been made.
5.That Y spend time with X as agreed between the Paternal Grandmother and Mr Alberts.
6.That, SUBJECT TO the conditions set out in Orders 9, X shall spend time with the Mother as follows:
Stage 1
(a)For a period of 4 weeks from 10 am – 12 noon each Saturday and Sunday at a park or indoor play centre agreed in writing between the Mother and Mr Alberts, such time to be unsupervised but Mr Alberts may remain in the vicinity if he wishes during the first 2 weeks.
Stage 2
(b)Thereafter, for a period of 4 weeks:
(i)From 3 pm – 6 pm each Wednesday and
(ii)From 9.30 am – 12.30 pm each Saturday.
(c)For the purposes of Order 5(b)(i), the Mother is to collect X from his child care centre at 3 pm and return him to Mr Alberts at McDonalds Suburb M, or at other such location agreed in writing between the Mother and Mr Alberts.
(d)For the purposes of Order 5(b)(ii), changeovers are to occur at McDonalds Suburb M, or such other location agreed in writing between the Mother and Mr Alberts.
Stage 3
(e)Thereafter, for a period of 4 weeks:
(i)From 3 pm – 6 pm each Wednesday and
(ii)From 9.30 am – 3 pm each Saturday.
(f)For the purposes of Order 5(e)(i), the Mother is to collect X from his child care centre at 3 pm and return him to Mr Alberts at McDonalds Suburb M, or at other such location agreed in writing between the Mother and Mr Alberts.
(g)For the purposes of Order 5(e)(ii), changeovers are to occur at McDonalds Suburb M, or such other location agreed in writing between the Mother and Mr Alberts.
Stage 4
(h)Thereafter, until 1 June 2020:
(i)From 3 pm – 6 pm each Wednesday;
(ii)From 3 pm – 6 pm each Friday and
(iii)From 9.30 am – 5 pm each Saturday.
(i)For the purposes of Orders 5(h)(i) and 5(h)(ii), the Mother is to collect X from his child care centre at 3 pm and return him to Mr Alberts at McDonalds Suburb M, or at other such location agreed in writing between the Mother and Mr Alberts.
(j)For the purposes of Order 5(h)(iii), changeovers are to occur at McDonalds Suburb M, or such other location agreed in writing between the Mother and Mr Alberts.
Stage 5
(k)From 1 June 2020 until 1 September 2020:
(i)Each week from 3 pm – 6 pm on Wednesday, and
(ii)Each week from 3 pm on Friday until 5 pm on Saturday.
(l)For the purposes of Orders 5(k)(i) and 5(k)(ii), the Mother is to collect X from his child care centre at 3 pm and return him to Mr Alberts at McDonalds Suburb M, or at other such location agreed in writing between the Mother and Mr Alberts.
Stage 6
(m)From 1 September 2020 until the commencement of Term 1 2021:
(i)Each week from 3 pm – 6 pm on Wednesday, and
(ii)Each alternate weekend from 3 pm on Friday until 5 pm on Sunday.
(n)For the purposes of Order 5(m)(i) and 5(m)(ii), the Mother is to collect X from his child care centre at 3 pm and return him to Mr Alberts at McDonalds Suburb M, or at other such location agreed in writing between the Mother and Mr Alberts.
Stage 7
(o)During school terms from the commencement of Term 1 2021 onwards, in a 2-week cycle as follows:
(i)Week 1 – From the conclusion of school on Friday until the commencement of school on Monday, and
(ii)Week 2 – From the conclusion of school on Wednesday until the commencement of school on Thursday.
(p)During the school holidays at the end of Terms 1, 2 and 3 in 2021 as follows:
(i)From the conclusion of school on the last day of term until 5 pm on the Wednesday in the first week of the school holiday period.
(q)During the school holidays at the end of Term 4 in 2021 as follows:
(i)In odd-numbered years – From 9.30 am on the Monday in the first week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter.
(ii)In even-numbered years – From 9.30 am on the Monday in the second week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter.
(r)During school holiday periods from 2022 onwards:
(i)For one half of the school holidays at the end of Terms 1, 2 and 3 each year;
(ii)During the school holidays at the end of Term 4 in odd-numbered years – From 9.30 am on the Monday in the first week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter, and
(iii)During the school holidays at the end of Term 4 in even-numbered years – From 9.30 am on the Monday in the second week of the school holidays until 9.30 am on the following Monday, and each alternate week thereafter.
(s)For the purposes of Orders 5(o) – 5(r):
(i)Changeovers on school days shall occur at X’s school, and on non-school days, shall occur at McDonalds Suburb M, or such other location agreed in writing between the Mother and Mr Alberts.
(ii)Any reference to “the conclusion of school” includes after school care, such that the Mother may collect X from after school care if X is enrolled on the relevant day.
(iii)Any reference to “the commencement of school” includes before school care, such that the Mother may deliver X to before school care if X is enrolled on the relevant day.
(t)X shall spend such other times with the Mother as may be agreed in writing between the Mother and Mr Alberts.
7.That X’s time with the Mother as set out in Order 5 shall be conditional upon the Mother’s compliance with the following Orders:
(a)The Mother is to forthwith re-engage in counselling with Dr N, Psychologist for the purposes of assisting the Mother with:
(i)Emotional regulation;
(ii)Managing stress, and
(iii)Any other issues that Dr N considers appropriate.
(b)For the purposes of Order 6(a), the Mother is to contact Dr N within 7 days of the date of these Orders and make an appointment to attend upon Dr N at the earliest opportunity (“the first appointment”).
(c)The Mother is to forthwith advise the Independent Children’s Lawyer of the date of the first appointment with Dr N.
(d)The Mother is to continue to attend counselling with Dr N at such frequency and for such length of time as recommended by Dr N.
8.That upon being advised by the Mother of the date of the first appointment with Dr N in accordance with Order 6(c), the Independent Children’s Lawyer is requested to provide Dr N with the following documents:
(i)A copy of Dr L’s report dated 7 May 2019;
(ii)A sealed copy of the Final Orders made by Justice Loughnan in these proceedings, and
(iii)A copy of Justice Loughnan’s reasons for judgement.
9.That the Mother and Mr Alberts do all things necessary to arrange family therapy with a therapist nominated by the Independent Children’s Lawyer (“the therapist”) for the purposes of improving their capacity to communicate and co-operate with each other, and to assist them in the implementation of the parenting arrangements set out in Order 5.
10.For the purposes of Order 8:
(a)The Mother and Mr Alberts are to contact the therapist within 7 days of receiving details from the Independent Children’s Lawyer, and make an appointment with the therapist at the earliest opportunity.
(b)The Mother and Mr Alberts each have leave to provide the therapist with the following documents:
(i)A copy of Dr L’s report dated 7 May 2019;
(ii)A sealed copy of the Final Orders made by Justice Loughnan in these proceedings, and
(iii)A copy of Justice Loughnan’s reasons for judgement.
(c)The Mother and Mr Alberts shall each attend appointments with the therapist as recommended by the therapist and comply with all reasonable recommendations made by the therapist.
(d)In the event that the therapist requests to meet with X, the Mother and/or Mr Alberts will ensure that X attends upon the therapist.
(e)The Mother and Mr Alberts shall share the costs of the family therapy equally.
11.For the purposes of Order 5, in the event that Mr Alberts relocates his place of residence away from the P Area, then changeovers on days when X is not at day care or school will take place at a public location nominated by Mr Alberts approximately half way between his home and the Mother’s home.
Y
12.That Y live with the Paternal Grandmother, Ms Hoang.
13.That the Paternal Grandmother and the 2nd Respondent Father, Mr Thach (“Mr Thach), have equal shared parental responsibility for Y.
14.That Y spend time with Mr Thach as agreed between Mr Thach and the Paternal Grandmother.
15.That Y spend time with X as agreed between the Paternal Grandmother and Mr Alberts.
16.That, prior to making any major long term decision concerning Y, other than in circumstances of medical emergency, the Paternal Grandmother shall:
(a)Notify the Mother in writing of the proposed decision;
(b)Take into account any views expressed by the Mother in relation to that proposed decision, and
(c)Notify the Mother in writing once a final decision has been made.
17.That, SUBJECT TO the conditions set out in Order 16, Y shall spend time with the Mother as follows:
(a)For a period of 1 month (following the completion of six family therapy sessions between the Mother and Y in accordance with Order 16):
(i)Supervised time once per week for 2 hours on a Saturday or Sunday, with days and times to be agreed in writing between the Mother and the Paternal Grandmother;
(ii)Time to be supervised by GG Services with the Mother to bear the costs.
(b)Thereafter, for a period of 5 months:
(i)Supervised time once per week for 4 hours on a Saturday or Sunday, with days and times to be agreed in writing between the Mother and the Paternal Grandmother;
(ii)Time to be supervised by GG Services with the Mother to bear the costs.
(c)Thereafter, for a period of 6 months:
(i)From 10 am to 5 pm each Sunday with changeovers to occur at the O Childcare at the R Shopping Centre, or such other location agreed in writing between the Mother and Paternal Grandmother.
(d)Thereafter, for a period of 3 months:
(i)Each week from 10 am Saturday until 10 am Sunday with changeovers to occur at O Childcare at the R Shopping Centre, or such other location agreed in writing between the Mother and Paternal Grandmother.
(e)Thereafter:
(i)In the event that X’s school is within a 10 km radius of Y’s school, then Y will spend time with the Mother during school terms on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
(ii)In the event that X’s school is not within a 10 km radius of Y’s school, then Y will spend time with the Mother during school terms on each alternate weekend from the conclusion of school on Friday until 5 pm on Sunday.
(iii)During school holiday periods, Y will spend time with the Mother at the same time as X’s time with the Mother in accordance with Orders 5(p), 5(q) and 5(r).
(f)Y shall spend such other times with the Mother as may be agreed in writing between the Mother and the Paternal Grandmother.
18.For the purposes of Order 14(e):
(a)Changeovers on school days shall occur at Y’s school, and on non-school days, shall occur at O Childcare at the R Shopping Centre, or such other location agreed in writing between the Mother and the Paternal Grandmother.
(b)Any reference to “the conclusion of school” includes after school care, such that the Mother may collect Y from after school care if Y is enrolled on the relevant day.
(c)Any reference to “the commencement of school” includes before school care, such that the Mother may deliver Y to before school care if Y is enrolled on the relevant day.
19.That Y’s time with the Mother as set out in Order 14 shall be conditional upon the Mother’s compliance with the following Orders:
(a)The Mother is to forthwith engage in family therapy with a family therapist nominated by the Independent Children’s Lawyer in consultation with Y’s counsellor, Mr C (“the family therapist”), for the purposes of repairing her relationship with Y and to assist in the implementation of the parenting arrangements set out in Order 14.
(b)The Mother is to contact the family therapist within 7 days of receiving details from the Independent Children’s Lawyer, and make an appointment with the family therapist at the earliest opportunity.
(c)The Mother is to forthwith notify the Independent Children’s Lawyer of the date of her first appointment with the family therapist.
(d)The Mother shall attend appointments with the family therapist as recommended by the family therapist and comply with all reasonable recommendations made by the family therapist.
(e)The arrangements for Y to spend time with the Mother in accordance with Order 14 will not commence until the family therapist has completed six sessions of family therapy with the Mother and Y.
20.For the purposes of the family therapy referred to in Order 16:
(a)The Paternal Grandmother is to ensure that Y attends all appointments requested by the family therapist.
(b)The Paternal Grandmother and Mr Thach shall each attend appointments with the family therapist if requested to do so, and shall each comply with all reasonable recommendations made by the family therapist.
(c)The Mother is to bear the costs of the family therapy.
21.That upon being advised by the Mother of the date of her first appointment with the family therapist in accordance with Order 16(c), the Independent Children’s Lawyer is requested to provide the family therapist with the following documents:
(i)A copy of Dr L’s report dated 7 May 2019;
(ii)A sealed copy of the Final Orders made by Justice Loughnan in these proceedings, and
(iii)A copy of Justice Loughnan’s reasons for judgement.
22.That any reference in these Orders to agreement between parties “in writing” shall include text message.
23.The Paternal Grandmother shall ensure that the Mother is kept informed of any serious injury or illness suffered by Y while in the care of the Paternal Grandmother or Mr Thach.
24.The Mother shall ensure that the Paternal Grandmother is kept informed of any serious injury or illness suffered by Y while in the Mother’s care.
25.Mr Alberts shall ensure that the Mother is kept informed of any serious injury or illness suffered by X while in Mr Alberts’s care.
26.The Mother shall ensure that Mr Alberts is kept informed of any serious injury or illness suffered by X while in the Mother’s care.
27.That each party refrain from making critical or derogatory remarks in relation to any other party in these proceedings, or a family member of any other party in these proceedings, to or in the presence or hearing of either of the children, and each party shall do all things necessary to ensure that no other person does so.
28.That the Mother and Mr Alberts keep each other advised of their contact telephone numbers (including both landline and mobile phone number if applicable) and email addresses, and any changes to these details within 7 days of such change occurring.
29.That the Mother and Paternal Grandmother keep each other advised of their contact telephone numbers (including both landline and mobile phone number if applicable) and email addresses, and any changes to these details within 7 days of such change occurring.
30.That the Mother is at liberty to attends events to which parents are generally invited at either of the children’s schools, provided that:
(a)The Mother gives prior notice in writing of her intention to attend to Mr Alberts (in relation to X) or the Paternal Grandmother (in relation to Y), and
(b)The Mother shall not attend any such events in relation to Y until Y has commenced spending time with the Mother in accordance with Order 14.
31.The Mother is authorised to obtain school reports from any school attended by Y and X now and in the future, and this Order shall act as sufficient authority for that purpose.
32.The Mother shall be at liberty to liaise directly with each child’s school in relation to the child’s progress.
33.That leave be granted to Mr Alberts to provide a sealed copy of these Orders to X’s current child care centre and any child care centre or school X attends in the future.
34.That leave be granted to the Independent Children’s Lawyer and the Paternal Grandmother to provide a sealed copy of these Orders to VV School and any other school Y attends in the future.
35.That the Mother and Mr Alberts are each hereby restrained from using any form of physical discipline on X.
36.That the Mother, Mr Thach and the Paternal Grandmother are each hereby restrained from using any form of physical discipline on Y.
37.That following completion of her obligations under Orders 7, 8, 16(a) and 18 the Independent Children’s Lawyer is discharged.
38.That within 21 days of receiving a written request from the Independent Children’s Lawyer, the Mother and Mr Alberts shall each pay one half of Dr L’s fees for attending Court on 5 July 2019 (such sum to be calculated after taking into account any contribution to be paid by Legal Aid NSW on behalf of Mr Thach and the Paternal Grandmother).
39.That within 3 months of the date of these Orders, the Mother and Mr Alberts shall each pay a contribution towards the costs of the Independent Children’s Lawyer in these proceedings in the sum of $6,202.50.
Written Evidence
The mother relied on:
·Her Initiating Applications filed 6 February 2017
·Affidavit of Ms Nghiem filed 5 June 2019 and the associated exhibits
·Affidavit of Ms T filed 5 June 2019
·Affidavit of Ms U filed 5 June 2019
·Affidavit of Ms W filed 14 June 2019
·Affidavit of Ms V filed 25 June 2019
·Affidavit of Dr N filed 23 September 2018
Mr Alberts relied on:
·Minute of Orders contained within his case outline document received 26 June 2019
·Affidavit of Mr Alberts filed 5 June 2019
Mr Thach relied on:
·Response filed 6 March 2017
·Notice of Risk filed 6 March 2017
·Affidavit of Mr Thach filed 24 June 2019
·Affidavit of Mr Z filed 5 June 2019
·Affidavit of Ms AA filed 15 November 2018
The paternal grandmother relied on:
·Response filed 30 January 2019
·Affidavit affirmed by Ms Hoang on 5 June 2019
Expert Evidence
The written evidence of the single expert, Dr S, was contained in her report dated 7 May 2019.
The Hearing
The hearing commenced on 1 July 2019. Each of the parties was represented by counsel. Despite several draft trial plans there was significant time pressure during the hearing and it was necessary to enforce time limits. I should record that the parties and their lawyers generally cooperated with extended sitting hours on several days. In particular I was grateful that the single expert, Dr L, kindly made herself available until after 5.30 pm on 5 July, long after normal sitting hours and after the time for which she had arranged to attend. On 9 July 2019 judgment was reserved.
Application for disqualification
On 9 July 2019 the mother, through her counsel, made an oral application that I disqualify myself from further hearing the matter. I dismissed the application and after conferring with counsel and without objection, said that I would incorporate my reasons for doing so in the reasons in the substantive proceedings. What follows are those reasons.
The mother’s application rests on statements made by me on the final day of the trial during the final submissions made on behalf of the paternal grandmother.
The relevant passage of the transcript[1] related to the paternal grandmother being encouraged to be more proactive in addressing with Y, any expressed fears about the mother. In respect of the paternal grandmother I said words to the effect:
His Honour: ….
She has shown herself to be independent of the father and the mother. Y is a lucky girl to have your client. As Dr L said, short of that we are into a very ugly place in terms of where Y would be. So, all credit to her, somebody who puts her life on hold, gives up time. I don’t buy into - this is all a plot by your client to seize a young child, it’s laughable, this whole thing.
[1] At about 2.47 pm on 9 July 2019.
Not long after those words were spoken the mother’s counsel asked for an opportunity to confer with his client. Thereafter, an oral disqualification application was made.
The oral submissions of learned counsel for the respondent were to the following effect:
Mr Richards: Your Honour, notwithstanding the - I make this application, it is my application that your Honour disqualify yourself from hearing the case on this basis. I will be quick. It is absolutely a feature of my client’s case that the paternal family, and I will call them that, the paternal grandmother and father, have acted in a way that had influenced Y’s attitude to her mother whatever it currently is, although we accept what’s been expressed. The other feature of the case which is of central importance as well, is whether or not any of that conduct has occurred to the degree that your Honour might find that they won’t facilitate a relationship with Y in the future because, and it flows from Dr L, it flows from all the submissions made by the parties that it is essential that for this to work for them to be on board. And, your Honour in the context of at least that influence, your Honour described it as being laughable that she bought into it. That is a rough memory of what you said. Now, your Honour - I withdraw that – your Honour knows that the test is not about what your intended. The test is about the objective observer sitting in the back of the court with enough of the facts to grasp the issues and, it is my submission, that the perception that would have been gleaned as a consequence of that exchange with your Honour, was that your Honour was rejecting out of hand two things: Firstly, that the grandma was actively working in a way to interfere with that relationship to achieve the goal, that has now being achieved, that is Y living with her. And secondly, it follows from that the prospect that she is going to facilitate that relationship because unless and the statement that your Honour’s made seems to reject, seems to reject that she is capable of even the latter, that is she is capable of facilitating that relationship. As I say your Honour, it’s the perception.
His Honour: “It seems to reject the concept that she is incapable of facilitating the relationship?”
Mr Richards: Let me put that differently. It seems to accept that the grandmother is completely filled with bona fides in terms of that relationship to the point where contrary to the mother’s case it’s been one that she hasn’t …..
His Honour: You have wandered so far with what I have said that I can’t even see it from where I am sitting. Anyway you finish…
Mr Richards: Your Honour can see the comments. I am only drawing on that exchange where, and your Honour used colloquial words “It is laughable that she bought into it”. Meaning
His Honour: I don’t think I said I bought into anything.
……..
Mr Richards: But if it is in a case that it is along the lines that I have made a submission about what your Honour said, that is certainly my recollection. Ah then the lay observer in the back of the court could have the
His Honour: But it is the end of the case.
Mr Richards: But your Honour, your Honour has not heard it all.
His Honour: It’s my obligation to give people that information of the way I am thinking so that you can address it in submissions.
Mr Richards: Except that
His Honour: It is my obligation.
Mr Richards: Except your Honour has expressed it in a way that it doesn’t matter what I say now.
His Honour: Oh okay.
Mr Richards: It doesn’t matter. That was the way it was – whether your Honour means it or not that’s not the test. It doesn’t matter what I say.
His Honour: Yeah.
Mr Richards: It’s terribly unfortunate, but it is about perception. It is not about what your Honour meant. It is about what was said and the effect on the hypothetical observer. And, I. Anyway they’re my submissions about that your Honour.
Counsel for the other parties and the ICL opposed the mother’s application. In particular, as was submitted on behalf of Mr Thach, the Court is permitted to make findings of fact at any stage of the proceedings.[2]
[2] Section 69ZR of the Family Law Act 1975 (Cth).
The reply of learned counsel for the mother included words to the effect that the strength of the expression “laughable”, and the fact that I made no reference to the evidence supporting the finding, justified the hypothetical observer having a reasonable apprehension of bias.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the joint judgment of the majority of the High Court contains the following:
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
(Footnotes omitted)
The High Court also considered the issue of bias in Johnson v Johnson (2000) 201 CLR 488 (“Johnson”). There the High Court dealt with and ultimately dismissed an appeal against a decision of the Full Court of this Court, which in turn dismissed an appeal against a refusal by a judge of the Family Court of Western Australia to disqualify himself. The High Court said at 630:
11 It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12 That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
14 There was argument in this Court, prompted by Anderson J’s explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.
(Footnotes omitted)
In my view the circumstances here fell well short of justifying my recusal.
I do not understand there to be an argument that I was biased, rather that there was an apprehension of bias. The idea of prejudgment is itself a difficult one in the context of something said in the course of final submissions on the last day of the trial. I am not confident about it but I concede that it may have been a different thing if I had rejected the mother’s apprehension before the evidence in the trial had closed.
In paragraph 13 of the judgment in Johnson above, the High Court referred to “ordinary judicial practice” and the “exigencies of modern litigation”. As I said when the application was made, in my view there is an obligation on judicial officers to raise in a timely way, issues that are agitating their minds and which may influence how the evidence or arguments are to be weighed. Rather than leaving all such observations to be revealed only in reasons for judgment, a timely reflection on a particular answer or proposition facilitates the matter being addressed, in this instance in the final submissions made in the mother’s case.
I understand that the application arose solely from my reference to the mother’s contention about the extent of the influence on Y’s present circumstances of the paternal grandmother, being laughable. It seems to me that care is needed before, in effect proscribing the use of particular adjectives or figures of speech by judicial officers, particularly in the busy day to day business of courts. In courts as elsewhere, the purpose of language is communication. In the natural process of the development of language the use of particular forms of speech and of particular words will provide effective communication of the intended meaning to a greater or lesser proportion of society over time.
I am confident that the words complained about effectively communicated the meaning I intended.
In any event, I made one observation about the mother’s assertion as to the motivation of the paternal grandmother and the outcome she has allegedly caused.
The phrase used by me does not imply an opinion about the evidence of the mother, nor does it imply anything about the ultimate issue in the proceedings, let alone an inclination to determine the proceedings on a basis other than the merits of the evidence and the submissions.
In any event, I do not understand how such an observation could raise an apprehension of bias. These are complicated proceedings. I am to make orders about two children where their best interests are the paramount consideration. The decisions involve an analysis of a significant volume of written, audio-visual and oral evidence. They are unlikely to turn on a view about one aspect of the mother’s case. The observation was not about the mother’s credit nor her parenting capacity but about her apprehension.
The fictional informed observer would be aware of those circumstances, would be told that the proceedings are not about a single act or conversation or event, but about a history and about expert opinion evidence. The observer would be aware that the offending comment was made on the final afternoon of a seven day trial, after the cases of all parties had closed and after submissions had been made on behalf of the ICL, each of the fathers and during submissions on behalf of the paternal grandmother, but before those on behalf of the mother.
Nothing else said or done by me in the conduct of the hearing to that point was raised in support of the disqualification application. I do not accept that my verbal rejection of the mother’s contention, that Y’s present circumstances have resulted from a campaign by the paternal grandmother to retain her custody, could cause an apprehension that I was biased against the mother or had impermissibly prejudged the case.
In those circumstances the fictional observer, properly advised, could not reasonably apprehend bias from my statement.
On that basis the application was refused.
Short History
The mother was born in 1981 and was 38 years of age at the time of the hearing. Mr Thach was born in 1979 and aged 40 years at the time of the hearing. The mother and Mr Thach were married in 2007 and were divorced in 2013. Y is the only child of their marriage and she was born while her parents were separated.
In or around September 2016 Mr Thach re-partnered with Ms Z. Mr Thach deposed that Ms Z has a son named BB who was born in 2017 and aged two years at the date of the hearing. Ms Z gave evidence in cross-examination to the effect that BB is the child of her and Mr Thach. The difference in the evidence of Mr Thach and Ms Z about BB was not explained.
The paternal grandmother of Y was born in 1955 and was 64 years old at the time of the hearing.
Mr Alberts was born in 1978 and was 40 years of age at the time of the hearing. The mother and Mr Alberts commenced their relationship in September 2014 and they separated on a final basis in June 2015. X is the only child of their relationship and was born after his parents separated.
Credibility
English is not the mother’s first language but she gave her evidence without the assistance of an interpreter. To my observation the mother’s facility in English is good although her expression is heavily accented. On occasions she apparently struggled to understand a question asked in cross-examination or to find the appropriate words to answer questions. However, the mother demonstrated a very clear recollection of conversations, events and documents. At times she readily made concessions adverse to her case and that lent credibility to her testimony when she refused to make concessions about other matters. In my view some of the disputed factual issues involving the mother were matters of perception or judgment rather than credit. That said, there were occasions when the mother refused to concede an obvious contention. For example, the mother would have it that it was a coincidence that she moved close to Mr Alberts’s residence after separation. In June 2015 the mother lived in Suburb CC and the father in Suburb DD. In late June or July 2015 the mother moved into the block of apartments where the father lived in Suburb DD. It was her evidence that she did that so as to ensure that X lived in the right area for B School. It is trite to say that the catchment area for a school would be more extensive than one block of apartments. When asked about the decision to move next door to the father the mother said words to the effect: “It wasn’t the best decision but I needed to write a letter to the school to show I lived in Suburb DD”. Again there is more of Suburb DD than the block of apartments in which Mr Alberts lived. The mother harassed Mr Alberts, including at those apartments. It is highly improbable that the mother accidentally rented an apartment in the same block as the father. Although the evidence is far from clear, I accept that the same concern does not arise in relation to a block of apartments in Suburb EE. In September 2015 Mr Alberts bought an apartment in Suburb EE. In November 2015 the mother bought an apartment in the same block and next door to the father’s apartment at Suburb EE. It was the effect of the mother’s evidence in cross-examination that when she bought her apartment, she was unaware that the father owned the apartment next door. She said: “Yes but how can I know he bought in that building?” It is not clear why the mother did not refer to the circumstance set out in her affidavit[3] - that she had recommended those Suburb EE apartments to the father. That would explain how she and Mr Alberts came to have apartments in the same building in Suburb EE and no inference adverse to the mother arises from that circumstance.
[3] Paragraph 55 of the mother’s affidavit.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Dr L described Y as a pretty, outspoken, outgoing eight year old who was cooperative and chatty. She displayed to Dr L no separation anxiety when seen individually and seemed euthymic.
The mother identifies her Language FF background as a source of pride and expresses a wish for her children to know and recognise their Language FF background as a part of their own cultural identities. This has at times created conflict between the parties, such as with the haircut that the mother has given to X a number of times. Mr Alberts expressed concerns over the haircuts and believes that they have made X the subject of ridicule and bullying while the mother insists that it is a traditional style in her culture. The mother acknowledges that there are certain cultural traditions that may offend Australian culture and that she has taken steps to help her to better understand the existing cultural differences. The mother conceded that the haircuts may have exposed X to embarrassment.
The mother has adduced no evidence to confirm that the haircuts administered to X are based in a Country FF cultural tradition. There is no reference to Y being treated in that way. Mr Thach was asked about that and knew nothing of Y being shaved. Of course it could be that the tradition is only applied to male children. The only scrap of evidence supporting the mother’s contention was that of the paternal grandmother to the effect that she saw a picture of a child with such a haircut at a temple. Albeit that the matter is far from clear, I find it probable that the shave/haircut administered to X on several occasions by the mother followed a religious or cultural tradition from the mother’s background.
Dr L opined that X’s identity will be more integrated by him becoming comfortable with and aware of both his Country FF as well as his Australian heritage.
The mother laments that Mr Thach and the paternal grandmother, despite both being of Language FF background themselves, are not supportive of Y being spoken to in or learning to speak the Language FF language. She expresses concerns about Y not being able to maintain a link to her Country FF heritage in the care of Mr Thach and the paternal grandmother.
Mr Alberts says that he supports X’s exposure to his Country FF culture. Although the mother has been criticised on occasions for speaking to X in Language FF on some supervised visits, it transpires that Mr Alberts is not opposed to the mother doing so. I gather that he would support the mother speaking in Language FF to X in order to enhance his knowledge and experience of the language. If I understand Mr Alberts’s evidence he did nothing about the actions of some supervisors to prevent the mother conversing with X in Language FF because he thought that it was the enforcement of a requirement of the agency involved. In a perfect world the father might have informed the agency of his views. Indeed, in a perfect world the mother could have asked Mr Alberts to intervene.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother’s attitude is reflected in the detail of her conduct set out elsewhere in these reasons.
Mr Alberts did not provide the mother with any financial support for the first months of X’s life. For a period the mother wanted the father to care for X and he did not agree because it would have interfered with his work.
Mr Thach conceded that he baited the mother, in the presence of Y.
(3)(j) any family violence involving the child or a member of the child’s family;
I refer to the findings set out earlier in these reasons.
It is an agreed fact that the mother and Mr Thach have been responsible for family violence. Mr Thach says that on 29 or 30 November 2010 the mother accused him of sleeping with Ms Nghiem who lived with them at that time. Mr Thach alleges that the mother started attacking him and he says he pushed her away in defence and she fell back and broke the front gyprock wall. The police interviewed both of them and also interviewed Ms Nghiem. Mr Thach pleaded guilty to assault. He says he did this because he “did not want to make a bigger mess or add more stress to my family”. He was given a bond and ordered to attend an anger management course.
The mother slapped Y in the face.
Although family violence is alleged against Mr Alberts the evidence is not clear and no probative findings are possible.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I refer to the earlier evidence about such orders.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There was no reference to such orders being sought in the proceedings.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the fathers or the mother have abused them or engaged in family violence. The mother and Mr Thach have inflicted family violence. Therefore the presumption does not apply.
Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
Dr L made the following recommendations about parental responsibility:
In relation to Y, Dr L recommended in her report that she live with the paternal grandmother. However, under the heading “living arrangements” she also stated:
To prevent further conflict between the paternal family and Y’s mother, parental responsibility should be given to her father.
When asked by counsel for the father, Dr L confirmed that her intention was that the child live with the paternal grandmother, but the father was to have sole parental responsibility. However, she expanded on her recommendation in her oral evidence, noting that both the paternal grandmother and Mr Thach proposed shared parental responsibility and that if both parties were comfortable with such an order, she would not oppose it. She said:
I was just concerned if the grandmother and the father might have issues about what should happen then it’s the father’s decision that should be given more weight.
I will make an order that Mr Alberts have sole parental responsibility for X and that Mr Thach and the paternal grandmother have equal shared parental responsibility for Y.
It is logical that the parent with whom the child mostly lives should have parental responsibility.
The mother does not have a good relationship with the other parties. Mr Alberts and Mr Thach have a workable relationship and they each have a good relationship with the paternal grandmother.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in X and Y’s best interests does not apply. The proper order is one that places parental responsibility with Mr Alberts for X and with the paternal grandmother and Mr Thach for Y.
Living Arrangements
In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular living arrangements.
The recommendations of Dr L were that Y live with the paternal grandmother and that X live with Mr Alberts.
Dr L opined that stability must be a priority and that the children must have a main base with an appropriate caregiver, in a community organised around their schools and friendship groups. She also said:
Ideally, siblings are not separated but live together with a predictable, attuned, emotionally available parent/caregiver. Y and X can only be together if they live with their mother, which, as discussed, I cannot support at this time. Nor do I believe it is in Y’s interest for Orders to be made for her to live with her father as this household is currently in a state of flux, without the long-term certainty Y requires. Currently, [Ms Hoang] [sic] has the most stable and familiar household for Y. This may change in the future, as Y spends regular time with her father and reconnects with her mother.
In regards to X, she said his living arrangements are complicated by his parents’ lack of trust in each other and that predictability of his time with each parent will be necessary. She opined:
In the next two years, before he commences school, X could spend increasing amount of time with his mother. Handovers should occur through a third party, such as his childcare, to prevent parental conflict (until they are confident they will not be reactive to each other). At this point, it is difficult to predict whether X and his parents will become settled and robust enough for them to adapt to a shared care living arrangement.
Mr Alberts supports the ICL’s proposals for time with the mother save that he seeks that the times proposed for Wednesdays should be 2.30 pm to 5.30 pm rather than 3.00 pm to 6.00 pm with X being picked up and delivered to and from his current child care centre, the K Centre at Suburb J. Obviously the preferences of Mr Alberts will be very influential over those of the ICL as Mr Alberts will need to make the arrangement work. I recall no evidence or complaint on behalf of the mother about those details. I will make the orders proposed by the ICL with the changes sought by the father. Although they were not specifically mentioned I will assume that the same considerations would equally apply to Fridays and I will make the same changes to times on Fridays. The orders proposed at paragraph 6(q) do not make sense and I will impose the regime proposed in 6(q)(i).
As to the paternal grandmother’s proposal that Y’s communication with her mother during the period to be supervised under the ICL’s proposals (orders 17(a) & (b)) in my view such an order is not required. It is artificial in that there is no restriction on Y communicating with her grandmother or her father in Language FF. Y has shown herself to be independent of her mother and to be securely attached to her paternal grandmother. I appreciate that without that condition an aspect of the protection afforded by supervision may be lost. However, as I said to the parties during submissions, if the mother sets out to sabotage the early sessions with her by denigrating or demonising the paternal grandmother or Mr Thach then she will risk losing the opportunity to restore her relationship with her daughter.
Other Orders
As to Mr Alberts’s application for orders in terms of paragraphs 9 to 22 (inclusive) of his minute:
9.That the father shall notify the mother and keep the mother notified of the child’s childcare and school. The father shall do all things and acts necessary to provide consent for the mother to collect and deliver the child to the school or childcare centre as nominated in order 4.
The parenting orders are already very complicated. Here the father seeks orders binding himself to facilitate the mother’s time with X. The father is obviously alive to the need to notify the mother and to advise the school or child care centre. In my view the order he proposed is not necessary.
10.Unless otherwise agreed the father shall not be present at the child [sic] school or preschool at any time when the mother is collecting or delivering the child in accordance with these orders.
The ICL’s proposals identify this issue at 6(a). Mr Alberts is obviously alive to the potential for problems if he and the mother come together at handover. In my view the order proposed is not necessary.
11.That the child X shall spend time with Y on a weekly basis and such time to be as agreed with Mr Thach and [Ms Hoang] [sic].
This issue is addressed at paragraph 15 of the ICL’s proposals. In my view the order proposed is not necessary.
12.That in conjunction with the commencement of time in orders 4, 5, 6 and 7 the mother and father shall do all things necessary to arrange Family Therapy with a therapist nominated by the Independent Children’s Lawyer and thereafter:
a.The mother and father shall attend appointments as directed and shall follow the nominated therapists reasonable recommendations,
b.The mother shall facilitate the child’s attendance upon nominated therapist on dates and times as directed by the nominated therapists.
This issue is addressed at paragraph 9 of the ICL’s proposals. In my view the order proposed is not necessary.
13.That leave be granted to the mother to provide to the therapist a copy of the expert report of Dr L dated 25 June 2019.
This issue is addressed at paragraph 10 of the ICL’s proposals and no further order is required.
14.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no party makes critical comments about the other party in the presence or hearing of the children.
This issue is addressed at paragraph 27 of the ICL’s proposals and no further order is required.
15.That each party is permitted to serve a copy of these orders upon the children’s schools that they attend from time to time and thereafter each party is authorised to liaise directly with the school concerning the children’s progress and receive copies of all notices, reports and such other documents that parents are ordinarily entitled to receive from the school.
This issue is addressed at paragraph 33 of the ICL’s proposals and no further order is required.
16.That in the event of a child suffering a medical emergency or serious illness requiring admission to hospital, when the child is in the father’s care, the father shall, as soon as reasonably practicable:
a.Cause the mother to be notified of the medical emergency or serious illness;
b.Cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
17.That in the event that the child suffers a medical emergency or serious illness requiring admission to hospital, or attendance upon a medical practitioner or allied health provider which the child is in the mother’s care, the mother shall, as soon as reasonably practicable:
a.Cause the Father to be notified of the medical emergency or serious illness;
b.Cause the Father to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the Father the child’s medical condition or illness.
This issue is addressed in respect of X at paragraphs 25 & 26 of the ICL’s proposals. The orders do not require the detail proposed by Mr Alberts. In my view there would be utility is specifying that detail in respect of both children. I will replace paragraphs 23, 24, 25 & 26 with the following:
23.In the event that Y suffers a medical emergency or serious illness requiring admission to hospital, when she is in the care of the Paternal Grandmother or Mr Thach, the paternal grandmother shall, as soon as reasonably practicable:
a.Cause the mother to be notified of the medical emergency or serious illness;
b.Cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
24.In the event that Y suffers a medical emergency or serious illness requiring admission to hospital, when she is in the care of the mother, she shall, as soon as reasonably practicable:
a.Cause the Paternal Grandmother to be notified of the medical emergency or serious illness;
b.Cause the Paternal Grandmother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the Paternal Grandmother the child’s medical condition or illness.
25.In the event that X suffers a medical emergency or serious illness requiring admission to hospital, when he is in the care of Mr Alberts, he shall, as soon as reasonably practicable:
a.Cause the mother to be notified of the medical emergency or serious illness;
b.Cause the mother to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with the mother the child’s medical condition or illness.
26.In the event that X suffers a medical emergency or serious illness requiring admission to hospital, when he is in the care of the mother, she shall, as soon as reasonably practicable:
a.Cause Mr Alberts to be notified of the medical emergency or serious illness;
b.Cause Mr Alberts to be provided full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c.Authorise the medical practitioner or medical facility to discuss with Mr Alberts the child’s medical condition or illness.
Returning to Mr Alberts’s proposals:
18.That within 14 days of the date of these orders the mother shall provide to the father a postal address for the purpose of the father sending letters, cards and gifts as provided for in these orders, and the mother shall keep the father informed of any change to that postal address.
19.That within 14 days of the date of these orders the father shall provide to the mother a postal address for the purpose of the children sending letters as provided for in these orders, and the father shall keep the mother informed of any change to that postal address.
This issue is addressed at paragraph 28 of the ICL’s proposals and no further order is required.
20.That the parties shall communicate with one another via the Our Family Wizard Application. Both parties shall forthwith:
a.Do all things necessary to sign up to the Our Family Wizard Application;
b.Notify the other party of the necessary details so that they can communicate with one another
c.Each be responsible for the payment of their own fees to maintain a subscription to Our Family Wizard Application.
The mother will be aware of the father’s preference for communication through this application. The orders are very detailed and in my view this is a complication that is not required. I do not recall any significant evidence or submissions about this issue.
21.That each party, their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [sic] X born in 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children [sic] on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order of the Court.
This was an issue specifically mentioned by learned counsel for Mr Alberts. Section 65Y of the Act makes it an offence to remove a child from Australia without an order of the Court or the written consent of people in whose favour a parenting order has been made. It is not obvious what additional protection the proposed order would give save that it would prevent any overseas travel for X, presumably until he turns 18. The proposals of Mr Alberts would require fresh proceedings if X is to leave Australia. No reason is given for the need to restrain Mr Alberts in this regard. The Watchlist component of the order is unremarkable because of s 65Y save that the Court would be reluctant to leave the entry in place indefinitely. At one point there was discussion about X living with members of his maternal family in Country FF. Even then there is no evidence that the mother attempted to remove X from Australia for that or any purpose. Otherwise, there is nothing in the background facts that warrants this approach. In addition to her work and residence, the mother’s relationship with Y would presumably deter her from leaving the jurisdiction with X. In the modern world it is not uncommon for children to have the opportunity to travel overseas with friends, family, school or extracurricular groups. The parents should have the option that s 65Y provides of agreeing to his travel. There is the potential for embarrassment and/or cost if agreed travel is frustrated by an unnecessary Court order.
In order to give the parents an opportunity to reflect on the issue I will grant the injunction sought and request a Watchlist entry but in each case, only for 12 months.
I will make an order in the following terms:
That the mother and Mr Alberts, their servants and/or agents be and are hereby restrained, for a period of 12 months from the date of these orders, from removing or attempting to remove or causing or permitting the removal of the child, X (male) born in 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for 12 months from the date of these orders.
Returning to Mr Alberts’s proposals:
22.The mother be restrained by injunction from approaching the father’s home, motor vehicles or place of employment.
By this order Mr Alberts seeks an injunction, presumably in the nature of an order for personal protection. There have been AVOs and the mother has breached those orders. I have two concerns about Mr Alberts’s proposal. Firstly, it is vague and therefore there may be problems with compliance and enforcement. Secondly, the parenting orders which I intend to make will require or permit the mother and Mr Alberts to be at the same place at the same time. For example, Order 6(a) will allow the parents to be in the same vicinity.
I will not make the order proposed by Mr Alberts. However, the mother would be aware that if there is any repetition of the stalking or harassing behaviour that occurred in the past, it will inevitably adversely impact on her time with X.
Conclusion
The orders made will provide for X to live with Mr Alberts and for Y to live with her paternal grandmother. The sole parental responsibility for X will be exercised by Mr Alberts, while Mr Thach and the paternal grandmother will share parental responsibility for Y. The orders will allow for the children to spend time with one another as agreed between the paternal grandmother and Mr Alberts.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 3 October 2019
Associate:
Date: 3 October 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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