Nhan and Vuong - [2010] FMCAfam 989

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NHAN & VUONG

[2010] FMCAfam 989

FAMILY LAW – Parenting – husband’s rigid approach to parenting and education has resulted in a breakdown of his relationship with the two eldest children – husband’s time with youngest child progressing well and ordered to continue – orders made for therapeutic intervention to address the breakdown in the husband’s relationship with the two eldest children and to enable the husband to develop insight into the impact of his parenting style on the children.

Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Goode & Goode (2006) FLC 93-286

Applicant:

MS NHAN

Respondent:

MR VUONG

File Number:

MLC 8798 of 2009

Judgment of:

Bender FM

Hearing date:

6, 7 & 8 September 2010

Date of Last Submission:

8 September 2010

Delivered at:

Melbourne

Delivered on:

9 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Nehmy

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Triaca

Solicitors for the Independent Children’s Lawyer:

T.J. Mulvany & Co.

ORDERS

All previous parenting orders be discharged.
The wife have sole parental responsibility for the children [X] born [in] 1997 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2001 (“[Z]”).
[X], [Y] and [Z] live with the wife.
[X] and [Y] spend time and communicate with the husband as agreed between the husband and wife after taking into consideration any wishes expressed by [X] and/or [Y].
As soon as practicable, each of the husband and the wife shall engage in such therapeutic counselling as recommended by the Project

Co-odinator, Australia Vietnamese (Women’s) Association (who is currently Ms N) – telephone [omitted].
In the event the Project Co-Ordinator recommends and requests the attendance of any one or more of either [X], [Y] and/or [Z] at any such counselling, the wife shall apply her best endeavours to ensure that such requests are fully complied with.
The parties shall provide the Project Co-Ordinator with a copy of the Family Report of Mr S dated 3 August 2010, a copy of these orders and a copy of the Reasons for Judgment delivered on 9 December 2010.
[Z] shall spend time and communicate with the husband as follows:
(a)from 12.30 pm Sunday to before school Monday (or 5.00 pm if Monday is not a school day) each alternate week commencing 19 December 2010;
(b)from 3.30 pm or the conclusion of school Friday to 10.00 am Sunday each alternate week commencing 22 January 2011;
(c)for three hours on [Z]’s birthday and Christmas Day at times agreed between the parties and failing agreement from 3.30 pm to 6.30 pm;
(d)during the term holidays 2011 the husband’s time pursuant to orders 8(a) and 8(b) herein shall continue with the time set out in order 8(a) herein to be extended to conclude at 5.00 pm on Wednesday;
(e)during the term holidays 2012 from after school on the last Friday of the term to 5.00 pm on the following Thursday;
(f)commencing from the first term holidays in 2013 for one week in each of the term holidays as agreed between the parties and failing agreement from after school on the last day of term until 12.00 noon on the middle Saturday;
(g)
in the 2010/2011 long summer vacation, the time set out in

order 8(a) herein be extended to 5.00 pm Wednesday on two weekends, the husband to advise the wife of which two weekends he proposes to extend time by no later than

15 December 2010;
(h)in the 2011/2012 long summer vacation, the time set out in order 8(a) herein be extended to 5.00 pm Thursday on two weekends, the husband to advise the wife of which two weekends he proposes to extend time by no later than 15 December 2011;
(i)commencing from the 2012/2013 long summer vacation for two periods of one week at times agreed between the parties and failing agreement for the first week of the long summer vacation commencing after school on the last day of term and for the last week concluding at 5.00 pm two days prior to [Z] returning to school;
(j)as otherwise agreed between the parties.
As from the first term in 2012, the husband’s time with [Z] as provided in orders 8(a) and 8(b) herein shall be suspended during the school holidays and recommence on the first weekend of each term as if the holiday had not intervened.
Notwithstanding anything heretofore contained in these orders, the husband’s time with [Z] shall be suspended from 1 to 15 January each year to enable the wife to take [X], [Y] and [Z] on extended holiday.
Changeover for the time [Z] spends with the husband, if not at [Z]’s school, will take place at McDonald’s [suburb omitted].
The parties utilise and maintain a communication book to record all matters relevant to the welfare of [X], [Y] and [Z], such communication book to be exchanged at each changeover.

BY CONSENT

Save and except in any counselling and/or like appointment, each of the parents are hereby restrained from discussing with any one or more of [X], [Y] and [Z] and/or in the presence or hearing of any one or more of [X], [Y] and [Z], whether individually or jointly, their wishes as to time in each parental household, these proceedings and like matters.
Each of the parents be and is hereby restrained from questioning or discussing with any of [X], [Y] and/or [Z] their conduct and/or activities in the household of the other parent, and from directing and/or suggesting the manner in which [X], [Y] and/or [Z] shall behave and/or be engaged in the household of the other or permitting any other person to do so.
Each of the parents shall be at liberty to attend all school functions to which a parent is customarily invited, including but not limited to sports days, concerts, presentations and graduation days on the following conditions:
(a)such attendance is subject to the directions of the Principal, or a person delegated by the Principal of any school or schools attended by [X], [Y] and [Z];
(b)each of the parents if so attending shall comply with the directions of the Principal or Principal’s delegate; and
(c)in the event of the husband attending, the wife shall apply her best endeavours to facilitate a brief congratulatory meeting between the husband and [X], [Y] and [Z].
The parties do all things required to renew the passports for [X], [Y] and [Z] with such passports to be kept in the possession of the wife.
In the event that the wife intends to take [X], [Y] and [Z] overseas on a holiday she shall provide the husband with:
(a)28 days written notice of her intention to do so;
(b)a detailed itinerary with return flight details; and
(c)contact details for [X], [Y] and [Z] for the duration of the travel period.
The husband shall ensure he administers all prescribed medication to [Z] when he is in his care in accordance with the written directions of [Z]’s treating medical practitioner and the wife shall ensure that [Z] has such prescribed medication and written directions with him when he is spending time with the husband.

IT IS NOTED that publication of this judgment under the pseudonym Nhan & Vuong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8798 of 2009

MS NHAN

Applicant

And

MR VUONG

Respondent

REASONS FOR JUDGMENT

Introduction

This matter relates to the arrangements that are to be put in place for the husband to spend time with the parties’ son [Z] born [in] 2001 (“[Z]”), aged nine years.
The parties have two older children [X] born [in] 1997 (“[X]”), aged 13 years and [Y] born [in] 1999 (“[Y]”), aged 11 years. [X] and [Y] live with their mother and brother and have not spent any time with their father for well over 12 months.
The parties have agreed that orders are to be made that provide for [X] and [Y] to spend time with their father as agreed and subject to [X] and [Y]’s wishes, and that they will pursue therapeutic intervention with a view to repairing the father/daughter relationship.
The parties are in dispute as to whether there should be equal shared parental responsibility for [X], [Y] and [Z] as is sought by the husband or whether the mother should have sole parental responsibility for the three children as is sought by her.
The parties have had an ongoing highly conflicted relationship to which [X], [Y] and [Z] have been exposed for many years. Both parties agree they have no capacity to communicate with each other about their children or at all.
To their credit, the parties were able to agree to many of the arrangements for [Z] and presented a Minute of the agreed orders to the court at the commencement of the final hearing of this matter.
The parties were in agreement that [Z] would live with his mother and spend time with his father but were unable to agree on the “mechanics” of that time.
The wife seeks orders that [Z] spend time with his father as follows:
(a)In week one from 3.30 pm Friday to 5.00 pm Saturday;
(b)In week two from 3.30 pm Friday to 10.00 am Sunday;
(c)During school term holidays that the times in (a) and (b) continue and be extended to 5.00 pm Tuesday;
(d)
During the Christmas vacation, the times in (a) and (b) continue and be extended to 5.00 pm Tuesday on two occasions nominated by the husband, save that the time be suspended from

1 to 15 January each year during which time the wife can take holidays with the children;
(e)As otherwise agreed; and
(f)If not at [Z]’s school changeover occur at [omitted] McDonald’s and if inappropriate at Berry Street in Richmond.
The husband proposes that [Z] spend time with him as follows:
(a)In week one from 12.30 pm Sunday to before school Monday (or 5.00 pm Monday if not a school day);
(b)In week two from 3.30 pm Friday to 10.00 am Sunday;
(c)For one week in each of the school term holidays;
(d)
For half of the long summer vacation (not to include

1 to 15 January as requested by the wife);
(e)As otherwise agreed between the parties; and
(f)Changeover, when not at [Z]’s school, take place at [church omitted].
In relation to the therapeutic intervention to assist the relationship between [X] and [Y] and their father, the husband preferred that this take place at Lifeworks whereas the wife proposed the Australian Vietnamese (Women’s) Association. At the conclusion of the evidence, the parties indicated they would abide by the orders of the court as to where such intervention should occur.

Background

The wife was born in Vietnam [in] 1967 and is 42 years of age. She is currently a student undertaking a [omitted] course. She has not

re-partnered.
The husband was born in Vietnam [in] 1961 and is 49 years of age. He is currently a student at [omitted]. He has not re-partnered.
The parties married in Saigon, Vietnam [in] 1995 before immigrating to Australia. They separated in Australia in or around 2003.
The husband initially saw [X], [Y] and [Z] by agreement on a weekly basis. Orders were made by consent on 20 April 2005 which provided for [X], [Y] and [Z] to live with the wife and spend time with the husband each Sunday from after Mass until the following day when the husband was to take [X] and [Y] to school and deliver [Z] to the wife at 12.30 pm.
These arrangements for [X], [Y] and [Z] remained in place until

15 February 2008 when [X] refused to spend time with her father. [X] has not spent any time with her father since then. [Y] and [Z] continued to spend time with their father until 16 August 2009 when [Y] too refused to spend time with her father. [Y] has not spent any time with her father since then. [Z] continued to spend time with his father pursuant to the orders of the court.
These proceedings commenced on 1 October 2009 when the wife issued an urgent Application seeking a Recovery Order in relation to [Z] as she alleged the husband had retained [Z] in his care in breach of the 2005 orders from August 2009.
The matter came before the court on 12 October 2009 and an interim order was made which provided for the 2005 orders to remain in full force and effect.
On 10 November 2009 the parties, [X], [Y] and [Z] attended upon

Ms G, Family Consultant, for child inclusive counselling pursuant to s.11F of the Family Law Act 1975 (“the Act”). Ms G gave a brief oral report to the court on 10 November 2009 in which she advised:
·[X] and [Y] reported that after separation, even though their parents lived separately, they needed to abide by the father’s rules at all times. He called every evening and would become angry and they would get into trouble if he did not approve of what they had been doing;
·[X] and [Y] were asked by their father to write reports regarding their mother and their daily movements and behaviours which had to be read to their father each evening when he called;
·[X] and [Y] were very distressed about the way their father talked about their mother as he used very degrading terms;
·[X] and [Y] were required by their father to convey messages to their mother of a very negative form;
·In order to avoid the parental conflict and the pressure being placed on them, [X] and [Y] had both decided to stop spending time with their father;
·[Z] liked spending time with his father and wanted to spend more time with him;
·The children’s educational progress was extremely important to the father; and
·It is in [X] and [Y]’s best interests to re-establish their relationship with their father but they would need help to do this and because of language and cultural issues, a Vietnamese Agency would be preferable.
On 8 December 2009, orders were made which discharged the 2005 orders in relation to the time [X], [Y] and [Z] spent with the husband and interim orders were made that [Z] only spend time with the husband from 12.30 pm at the conclusion of Mass on Sunday to the commencement of school (or 5.00 pm if Monday was not a school day) each alternate week and from 3.30 pm or the conclusion of school Friday to 10.00 am at the commencement of Mass Sunday in the other alternate week. Changeover, if not at [Z]’s school, was to take place outside [church omitted]. Both parties were restrained from discussing the proceedings with the children or denigrating each other in the presence or hearing of the children.
The orders also provided for the parties and the children to engage in such child-inclusive therapeutic program as nominated by the Independent Children’s Lawyer.
The Independent Children’s Lawyer arranged for [X] and [Y] to attend Lifeworks for child-inclusive therapy. After the initial appointment, both girls refused to attend any further appointments.
The interim arrangements for [Z] to spend time with his father have remained in place since the orders were made in December 2009.

The evidence

The wife

The wife’s proposal has been set out earlier in this judgment. It was the wife’s evidence that she and the husband had been in a conflicted relationship for many many years. It was her evidence that they continuously argue, particularly in relation to the husband’s demands on the children in terms of his expectations of them regarding their education.
It was the wife’s evidence that the children were constantly exposed to their parent’s conflict.
It was the wife’s evidence that both [X] and then [Y] refused to spend time with the husband. The wife indicated that initially she tried to encourage the girls to spend time with their father, but after they continually refused to do so, she finally ceased to pursue this issue with them.
It was the wife’s evidence that she and the husband do not communicate at all any more. She indicated that she had in the past sent the husband text messages in relation to [Z], but that in recent times he had changed his telephone number and had not provided his new telephone number to her. It was her evidence that on the rare occasion she did need to convey any information to the husband in relation to [Z], she gave [Z] a note to pass to the husband.
It was the wife’s evidence that she could not see any way for the parties to improve their communication, but was open to the idea of a communication book as well as the use of other technology such as text messaging and emailing.
It was the wife’s evidence that in the circumstances where she and the husband are completely unable to communicate, where neither [X] nor [Y] at this time are spending any time with the husband and because of the long entrenched conflict in relation to educational issues, an order for sole parental responsibility in her favour would be in the children’s best interests.
It was the wife’s evidence that after the initial appointment with Lifeworks that was organised by the Independent Children’s Lawyer earlier this year, both [X] and [Y] refused to further attend counselling, indicating to her that all they were telling them was the:
“usual stuff”
being that they should see their father.
It was apparent to the court that if therapeutic intervention was to be successful, the wife would need some assistance in being given strategies to assist the girls in engaging in that process.
In relation to [Z], the wife agreed that [Z] does enjoy his time with his father and that theirs is a good relationship.
It was the wife’s evidence that [Z] has learning difficulties and that he has been assessed through his school, [S] School, to ascertain the extent of those difficulties.
It was the wife’s evidence that [Z] has:
“a language disorder”
and that he has been diagnosed with a speech impediment and that he can’t pronounce words properly. It was her evidence that [Z] is seen by a speech therapist at the school on a regular basis.
The wife’s evidence in relation to [Z]’s learning difficulties was rather vague. It was difficult to ascertain whether this was because the wife herself didn’t understand his issues or whether it was a language difficulty. English is the wife’ second language and her grasp of the English language is most limited. Her evidence to the court was given in Vietnamese with the assistance of an interpreter.
The wife made available to the court a confidential psychological report for [Z] that was completed by the Catholic Education Office dated 29 August 2009, together with an educational assessment from the Catholic Education Office dated 24 June 2009. It is apparent from that documentation that [Z] has real difficulties in relation to written and spoken English, and that he requires special assistance and a modified teaching program to enable him to address those issues.
It was the wife’s evidence that on the advice of the school principal, she had attempted to organise tutoring for [Z] to assist him with his reading difficulties. It was her evidence, after a great deal of clarification, that she had arranged tutoring through a Vietnamese Agency each Saturday for two hours in the first term of 2010. It was her evidence that at the end of the first term, she was advised that [Z] needed one-on-one tutoring rather than group tutoring and that unless he was able to attend each week, there was little point in him engaging in that endeavour. It was the wife’s evidence that the husband refused to take [Z] to tutoring on the Saturday that he had [Z] in his care, and in those circumstances the tutoring had not been further pursued.
At my request, enquiries were made as to whether there was tutoring available for [Z] after school rather than on a weekend so that he could enjoy his time on the weekends and more importantly to avoid there being any issues around his attendance when in his father’s care. The preliminary enquiries made at my request were such that there did not appear to be such tutoring available for [Z] during the week.

It was the wife’s evidence that she is seeking a variation of the current arrangements for [Z] so that in each second week he spends time with his father from after school Friday until 5.00 pm Saturday, rather than from 12.30 pm Sunday to before school Monday. It was her evidence that now that [Z] is older, he is able to attend religious classes that coincide with the Mass for older children which is conducted at [church omitted] at 5.00 pm each Sunday. It was the wife’s evidence that she wishes to be able to take all three children to Mass together each second week.
In relation to the school holidays, it was the wife’s evidence that she did not believe the husband would properly care for [Z] if he were to be with him for an entire week. It was her evidence that [Z] is a very fussy eater and that she has to cook special meals for him. It was her evidence that when with his father, [Z] predominantly ate takeaway food.
The wife also gave evidence that when with his father, [Z] does not engage in activities other than playing on the computer and she is concerned that he will become bored if with his father for more than a few days.
The wife also indicated that [Z], other than for the period he was overheld by the husband in 2009, had never spent more than two nights in the husband’s care.
In relation to changeover, it was the wife’s evidence that because of the long-standing conflicted relationship between herself and the husband, she wished for changeover to take place in a well-populated public place. It was her evidence that there can be occasions when the church is very quiet and in those circumstances she would prefer that the changeover take place at McDonald’s in [suburb omitted] where there are always a lot of people as it is very busy.

Ms M

To assist the court in clarifying [Z]’s special educational needs, arrangements were made for [Z]’s current Grade Three classroom teacher, Ms M, to give evidence to the court in relation to [Z].
It was Ms M’s evidence that [Z] has a severe language disorder which impacts on his ability to learn and process the English language.
It was her evidence that [Z] currently has a Teacher’s Aide who sits with him for up to two hours at a time on two to three occasions per week and he also spends time with the Literacy Co-Ordinator, who takes him and other like students for extra tuition.
It was Ms M’s evidence that [Z] is making some progress, albeit slowly.
It was her evidence that she did not believe that [Z] required a tutor at this stage, but rather needed to be encouraged to read every night at home as well as working on his spelling.
It was Ms M’s evidence that she would recommend that [Z]’s older sisters read with him, rather than his mother because of her limitations with the English language and because of her pronounced accent, issues that neither of his older sisters have.
Ms M described [Z] as a hard worker who really wants to learn and puts in the effort to improve. She was of the view though that [Z] will always have some difficulty with his language skills.
Ms M indicated that [Z] was very good at maths but this was restricted by the limitations imposed by his language difficulties in that if the question involved a reading component as well as a numeracy component he struggled.
Ms M noted that [Z] has quite a strong Vietnamese accent, which is surprising for a young child who has spent most of his time in Australia and in circumstances where neither of his sisters have an accent.
In relation to the husband, Ms M confirmed that there had been unpleasant interactions between the husband and the school. There had been times when he had been quite aggressive and she was aware of two occasions where he had been asked not to attend the school. It was her evidence that she had had no interaction with Mr Vuong this year.

The husband

The husband is clearly distressed by the breakdown in his relationship with his daughters and, to his credit, accepts that orders that would require the girls to spend time with him at this time would not be in their best interests and he was prepared to engage in the necessary therapeutic interventions in the hope that that relationship could be restored.
It was the husband’s evidence that he wishes to have shared parental responsibility for all three children, as:
“I am the father, she is the mother and we should share that responsibility and because the children are from me, they are from my heart.”
It was the husband’s evidence that he had come from an impoverished background in Vietnam which had prevented him from being able to undertake formal education to a high level, despite his desire to do so. He had therefore primarily educated himself. The husband is therefore passionate for his children to make the most of their educational opportunities in Australia and to this end has personally tutored both [X] and [Y] with a view to them obtaining scholarships to attend private schools.
The husband agreed that he had at times required both [X] and [Y] to attempt schoolwork at a level higher than their academic level, but maintained the view that this was necessary for them to be able to maximise their potential.
In relation to the reports that he required of them, it was the husband’s evidence that the purpose of the reports was not to spy on the wife and her household, but rather to be able to ascertain what the children were doing to ensure that they were maximising the time available to them for their studies. He did this in response to the girls telling him they had not been able to complete the homework he had set them because they were doing other things.
The husband expressed concerns in relation to the quality of the education that [Z] is receiving at [S] School. It was his evidence that he did not accept that [Z] had any learning difficulties and was of the view that if he was able to tutor [Z], then many of his current issues could be resolved in a relatively short period of time.
The husband was passionate in his evidence when speaking of these issues and it is apparent that he is obsessive about wanting his children to achieve academically at the highest level to maximise their opportunities in life, and for them to have the opportunities that were denied him.
What was also apparent from his evidence was that the husband had little understanding of how this passion has impacted on his children and the contribution it had made to the breakdown in his relationship with [X] and [Y].
In relation to the arrangements for [Z], it was the husband’s evidence that he wished for the current arrangements to stay in place. It was his evidence that he wishes to be able to take [Z] to school on Monday morning as he believes it is important that he be able to share this component of [Z]’s life with him.
It was the husband’s evidence that if [Z] asked to go to Mass with his sisters on Sunday afternoon whilst in the husband’s care, he would arrange for him to do so.
In relation to the holidays, it was the husband’s evidence that whilst he is studying he has the same holidays as [Z]. It was his evidence that he wanted the opportunity to spend more time with his son during the holiday periods.
The husband denied that he did not feed [Z] properly and indicated that he does cook for him, though on occasions by way of a special treat he will buy [Z] a pizza as that is one of his favourite meals.
The husband was asked about other families and friends that he and [Z] associate with. Somewhat sadly, it would appear that the husband is quite isolated in his life and he was unable to tell the court of any friends or associates with whom he and [Z] associate, save for a neighbour’s son who [Z] plays with occasionally when staying with his father.

Mr S

Mr S is a Family Consultant with the Federal Magistrates Court of Australia. Mr S prepared a Family Report in this matter dated 3 August 2010. Mr S also gave oral evidence at the hearing of this matter.
In his Family Report, in paragraph 76, Mr S makes the following recommendations:
76.Based on the aforementioned information and in the absence of evidence to the contrary, it is respectfully recommended that:-
·[X], [Y] and [Z] continue to live in their mother’s care.
·That [X] and [Y]’s time with their father be reserved at this point in time.
·That [Z] continues to spend time with his father each weekend according to current Orders, with handover between the parents to occur at a community based facility such as Berry Street, Richmond, telephone 9429 9266.
·The current Orders in this respect are likely to need to be adjusted to accommodate [Z]’s attendance at his Saturday Language class.
·
Mr Vuong to consider engaging with a community based service to address the aforementioned issues. A community agency considered to offer a suitable service to Mr Vuong is the Australian Vietnamese (Women’s) Association and which offers a range of counselling services related to family conflict and parenting skill development, telephone [omitted]

Ms N (Project Coordinator).
·The Court consider having any Orders translated into Vietnamese in order to avoid any misunderstandings inherent in implementing the Orders and to avoid yet further conflict occurring between the parents.
In paragraph 14 of the Family Report, Mr S describes the wife as follows:
“a pleasant woman who although focussed on apportioning blame to Mr Vuong for the current situation, also began to demonstrate a developing insight into the impact of the identified issues on the children.”
In relation to the relationship that [X] and [Y] have with their father, Mr S in paragraph 15 noted that the wife was:
“supportive of the children having a relationship with their father, although qualified that view stating ‘if they want to see him.’”
Mr S indicated that the wife lacked confidence in the husband’s capacity to love and be affectionate towards the children and that in light of her experience of significant inter-parental conflict, the husband’s role in perpetuating family violence in the form of significant verbal abuse, including the children having been exposed to that conflict, and the ongoing issues in relation to education, that the wife was seeking an order for sole parental responsibility.
In paragraph 25 of his Report, Mr S describes the husband as someone who:
“initially presented as a pleasant man who cooperated in respect of the interview process, and although he remained respectful throughout the process, at times, he appeared frustrated or angry about being challenged when various propositions were put to him.”
Having discussed with the husband the issues around the parents’

long-standing unresolved conflict, Mr S reports in paragraph 28 of his Report:
“Mr Vuong claims that since 2004 there has been no communication between him and Ms Nhan because they do not share parenting goals.”
Mr S was most concerned about the husband’s non-acceptance of [Z] having significant learning difficulties. In paragraph 34 of his Report, Mr S stated as follows:
“Although Mr Vuong is perhaps understandably anxious about what he perceives as a lack of progress, he presents as either unwilling or unable to accept that [Z] has some special needs and thus cannot be expected to achieve at the level Mr Vuong expects of him. Such a view is perhaps demonstrated by Mr Vuong’s historically single minded approach about the importance of education and achievement, for example, not allowing the children to speak Vietnamese in the family home.”
In the context of the preparation of the Family Report, Mr S spoke to [R] School where [X] is a student and to [S] School where [Y] and [Z] are in attendance.
Mr S reports that [R] indicated that [X] is doing very very well at school and is considered to be one of the top students at the school.
In relation to [S] School, Mr S reports that they consider [Y] to be a very intelligent child, popular, in a large friendship group and that they had no concerns for [Y] at the school.
Mr S reported that in relation to [Z], the school considered him to struggle. The school confirmed to Mr S that [Z] had been diagnosed with a:
“severe language disorder”
and as a result had been provided with an Integration Aide. The school indicated that the provision of the additional support had resulted in [Z] demonstrating an enormous improvement in his language, to such an extent that he is now considered to be making excellent progress.
Mr S reported that the school was concerned that [Z] appeared to be under significant pressure from his father, who they believe does not understand, or indeed accept that [Z] has a language disorder. The husband blames the school for [Z]’s perceived lack of academic progress as opposed to accepting that [Z] has a disorder.
The school confirmed instances of significant aggressive behaviour towards staff members by the husband, such that there had been a breakdown in the parent/teacher relationship to the point that the staff will now not engage with the husband in any way.
In paragraph 67 of his Report, Mr S notes as follows:
“[Z]’s relationship with his father, however, would appear somewhat tenuous at this point in time, because of his anxiety and experience about how his father handles academic matters.”
Mr S was asked in cross-examination to explore this matter further. It was his evidence that there was no question that [Z] has a positive relationship with his father, and in fact wants to spend more time with him. It was Mr S’s evidence however that the real issue was whether the husband was prepared to seek assistance to understand the overall impact on his son’s emotional development if he persists in those behaviours (sic in relation to educational matters). If they were alleviated or ameliorated, then Mr S felt there would be no issue with [Z] spending more time with his father during holidays and in fact, in developmental terms, Mr S noted that as [Z] matures he is likely to want to spend more time with his father as he approaches adolescence.
In relation to the issue of changeover, it was Mr S’s evidence that he had recommended Berry Street in Richmond because of the historical evidence of there being verbal conflict between the parties at changeover. It was his evidence that if the parties were able to restrain themselves from exposing [Z] to their ongoing conflict then a changeover at Berry Street may not be necessary. However, if such behaviour were to continue then it would not be appropriate for [Z] to be exposed to that conflict and the protective measure of supervised changeover would need to be imposed.
It was Mr S’s evidence that in order for the relationship between [X] and [Y] and their father to improve, the initial therapeutic intervention needed to focus on the parents.
It was Mr S’s evidence that the wife needed to be supported in developing a greater insight into the importance of both girls having an ongoing relationship with their father and that the husband needed support to develop greater insight into the impact that his current parenting style, and in particular his single-minded obsession with education, was having on his relationship with the girls.
It was Mr S’s evidence that in these circumstances the parents needed to initially engage in the therapeutic process and that [X] and [Y] then be invited by the counsellor to engage in such counselling subsequent to a proper engagement by their parents.

Best interests of the child

Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
As noted earlier, the wife is seeking orders for sole parental responsibility for [X], [Y] and [Z], whilst the husband seeks orders for equal shared parental responsibility.
The wife argues that because of the long-standing conflict between herself and the husband, the reality that they have not communicated effectively or at all in relation to the children since 2004, the fact that at this time [X] and [Y] are not spending any time with their father, the husband’s single-minded obsession in relation to the education of the children and his ongoing current dispute with [Z]’s Primary School, including his inability to accept that [Z] has learning difficulties mean that orders should be made that she have sole parental responsibility for [X], [Y] and [Z].
The husband seeks that orders be made for shared parental responsibility on the basis that both he and the wife are the children’s parents and both should be involved in making long-term decisions for the children that they love.
The Independent Children’s Lawyer proposed that the parties have equal shared parental responsibility, subject to an order that if they were unable to reach agreement in relation to educational decisions, then they should attend upon a facilitator to resolve those matters.
Section 65dac of the Act sets out that where an order has been made for shared parental responsibility and the exercise of that responsibility involves making decisions about a major long-term issue in relation to the children, then the parents are required to consult the other in relation to the decision and make a genuine effort to come to a joint decision about that issue.

It is apparent from the evidence that the parties in this matter have no capacity to communicate and are unlikely to develop such capacity in the future. In that circumstance there is no ability for them to consult and reach a joint decision in relation to issues pertaining to their children. Nor is there any capacity for them to utilise a facilitator to resolve any issues between them, as proposed by the Independent Children’s Lawyer.
Section 61da(4) of the Act provides:
4. The presumption (sic of equal shared parental responsibility) may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the circumstances of this matter, having regard to the entrenched conflict between the parties, particularly in relation to education, the husband’s ongoing refusal to accept the advice of [Z]’s school in relation to his educational needs and where the husband is currently estranged from [X] and [Y], an order for equal shared parental responsibility cannot be seen to be in the children’s best interests.
Further, given the complete lack of communication between the parties and as [X] and [Y] at this time are spending no time with the husband, the husband would not be able to participate in making decisions for and about either of [X] and/or [Y].
In all these circumstances, I intend to make orders that the wife have sole parental responsibility for [X], [Y] and [Z].
Section 65daa of the Act requires the court to consider a child spending equal time or significant and substantial time with each of his or her parents where the court has made orders for the parties to have equal shared parental responsibility.
Even where such an order has not been made, the Full Court in the matter of Goode & Goode (2006) FLC 93-286 held that the court must still consider whether an order for equal time or significant and substantial time is in the child’s best interests.
At this time the parties are in agreement that [X] and [Y] will live with their mother and spend time with their father as agreed between the parties and [X] and [Y].
In relation to [Z], neither party is seeking orders that he spend equal time with them, but rather that he live with the wife and spend significant and substantial time with the husband, albeit that their proposals differ as to what that time should be.
When determining what arrangements should be put in place for a child, the Act is quite clear that the orders the court makes must be in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, is in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

At this time, the husband’s relationship with [X] and [Y] has broken down.
In his Family Report at paragraphs 47 & 48, Mr S reported as follows:
47.Although she is not sure about the future, [X] insightfully stated that in relation to the conflict, she wants her parents ‘…to get it all over with [because] it’s got dragged on and on.’ [X] spoke positively of her relationship with her father outside of the conflict and considered that he was “…an okay dad [and that she] loved him [however] over time it got harder and we grew apart.”
48.Notwithstanding this, [X] considered that although she has not spent any time with her father since late 2008, and she feels sad and angry at his treatment of her and her mother, she would like the past to “ be put behind us and wants a nice father / daughter relationship” in the future. In order to achieve this [X] insightfully considers that her parents need “…to stop denigrating each other and focus on us instead of each other.” Invited to consider what her father could / should change, to facilitate a more positive relationship, [X] thought that if her father could just “help her out” and allow her “to go at her own pace” and not make her study material so far in advance. In addition [X] wants her father to stop denigrating her mother, thus when combined [X] is hopeful that positive steps to a supportive relationship may result. [X] considered that if her father could take responsibility for addressing the issues she has identified she could envisage beginning to spend some incrementally increasing time with him, commencing, for example, by sharing an ice-cream, progressing to sharing a dinner together, with a view to working towards spending time together.
In relation to [Y], in paragraph 51 of his Report, Mr S noted as follows:
“In simple terms [Y] wants a relationship with her father and seeks that their relationship is “normal”, one where she is “…happy with [her] dad.” Unfortunately, given what has transpired to date, [Y] lacks confidence that her father has changed and on that basis feels unable to spend time with him at present.”
[Z] on the other hand would appear to have a positive relationship with his father, has continued to spend regular time with him and expressed a desire to spend additional time with him when he was speaking to

Mr S.
However, [Z], like his sisters has reservations about his father’s approach to educational issues and exhibited some degree of trepidation about his father’s response to his ongoing learning difficulties.
The wife has a close and loving relationship with all three children.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The parties have failed to shield the children from their long-standing, intensely conflicted relationship and there is no doubt that this has impacted negatively on all three children.
The husband’s single-minded obsession about the children maximising their educational opportunities has also impacted negatively on the children, and to date he has shown limited insight as to the need for him to modify his interactions with his children in this regard, to the extent that his relationship with [X] and [Y] has broken down completely at this time.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each of those will be considered in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

[X] and [Y]’s views in relation to the living arrangements that they seek at this time have been clearly set out previously in this judgment.
To their credit, the parents and in particular the husband, have taken on board the views of their two eldest children and have agreed to enter into orders that respect those views.
It is apparent that [Z] wishes to spend time with his father and again, albeit that they cannot agree precisely on what the makeup of that time should be, both parties are open to orders being made that enable that to take place.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

As noted previously in this judgment, there has been a breakdown of [X] and [Y]’s relationship with their father at this time.
Both girls indicate a desire to have a relationship with their father but at this time are ambivalent as to how that can occur absent a cessation of hostilities between their parents and their father developing some insights to allow them to continue to achieve academically at their pace rather than in accordance with his stringent criteria.
[Z] has a close and loving relationship with both his parents, but again as noted by Mr S in his Report, if the husband cannot accept that [Z] does have learning difficulties and that those charged with his education are best qualified to put in place the strategies that will assist [Z] and insists on pressuring [Z] to achieve in excess of his abilities, then he runs the real risk of his relationship with [Z] going down the same path as that of [X] and [Y].

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
For some considerable time after separation, [X], [Y] and [Z] spent consistent and regular time with the husband despite the parties’ highly conflicted relationship.
However, neither of the parties shielded [X], [Y] and [Z] from that conflict and the husband in particular spoke very derogatively of the wife in the children’s presence, required them to write reports on the activities they undertook in the wife’s household and required them to pass inappropriate messages to the wife on his behalf.
Because of their exposure to the conflict between the parents, and in particular because of the husband’s denigration of their mother and his obsession with their education, [X] and [Y] made the decision to distance themselves from their father.
Whilst the wife speaks of supporting [X] and [Y] being able to have a relationship with their father, she lacks insight into the importance of [X] and [Y] having that relationship and will need support to be able to assist them in this regard into the future.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Both parties live geographically close to each other with the wife residing in [omitted] and the husband residing in [omitted].
Any orders made by this court will not cause a change in the children’s circumstances.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are no practical difficulties in relation to the children spending time with either of their parents.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

As has already been clearly set out in this judgment, the husband’s ability to meet his children’s emotional needs is of concern. His single-minded obsession in relation to their education, his requirements for [X] and [Y] to prepare reports as to the goings on in their mother’s home, his insistence that they undertake study above their academic level in face of their resistance and resentment of same and his ongoing arguments with [Z]’s school as to [Z]’s educational needs are of major concern and have, in fact, led to the breakdown of his relationship at this time with [X] and [Y].
Mr S in his evidence, when questioned on the husband’s capacity to reflect on those matters that need to be addressed if he was to mend his relationship with his daughters, made the following observations:
“I would say that Mr Vuong demonstrated some capacity for some insight because through the afternoon, through a very long afternoon I might add, Mr Vuong was really quite gracious in being able to make some concessions, minor concessions albeit, but they were – there was a sense of insightfulness when he, if I can use again in layman’s terms, when the penny dropped on a couple of issues, and there was a sense that he got things that – when he was challenged, quite strongly by me, I might add, and he came to understand that perhaps his world view was not the only or the right world view necessarily and if there is one comment, but again it may not be complete, but it was in relation to, “I’ll do anything to be able to re-establish a relationship with my girls. I hadn’t realised that it had got to this point,” or words to that effect… It was insightful in terms of moving along, the journey from an obsession about wanting to be successful based on his experiences in Vietnam.”
It can only be hoped that the husband’s journey in this regard can continue and be facilitated through intensive therapeutic intervention.
Similarly, it will be important for the wife to develop the necessary insight and strategies to assist [X] and [Y] in the journey towards repairing their relationship with their father, including her recognising how important it is for them that they be able to do this.

Section 60cc 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

The impact of the husband’s impoverished upbringing in Vietnam, and in particular his limited educational opportunities and how that has shaped his passion/obsession that his children maximise their education in this country has already been discussed in this judgment.
Whilst the husband’s commitment to his children’s education is understandable in the context of his background, the husband struggles with the reality that the experience for his children growing up in this country and the influences that has on them are completely different to his experiences of growing up in Vietnam.

Section 60cc 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;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

There is no doubt that both the husband and the wife love their children dearly and want what is best for them.
However, as has been set out in some detail in this judgment, the parties’ ongoing and continuous conflicted relationship, to which the children have been exposed, and the husband’s rigid approach to parenting and the importance of education has not allowed him to be as responsible a parent as he would like to be.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

Section 60cc 3(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

It is to be hoped that the orders made in relation to the arrangements for [Z] are such that they will hold the parties in good stead into the future.
How well that occurs, to some extent, will be in the hands of the husband and the insights he is able to develop about his approach to his parenting, particularly the support he will need to give [Z] into the future with his educational needs, and in particular an acceptance that [Z] does have learning difficulties that will impact on [Z] into the future.
It is also hoped that with the intervention of appropriate therapy, [X] and [Y] will be able to re-establish a relationship with their father and once again spend time with him in an age-appropriate way without further recourse to the court.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

It was the wife’s evidence that, save for the period that the husband overheld [Z] in 2009, [Z] has not spent any longer than two consecutive nights with his father since separation.
In relation to the time that [Z] spends with his father, the Independent Children’s Lawyer indicated that there was no compelling reasons to change the current arrangements which appear to be working well.
In relation to changeover, the Independent Children’s Lawyer indicated that it needed to be workable and take place in a public setting.
In relation to school holidays, the Independent Children’s Lawyer indicated that in circumstances where [Z] had not spent more than two days with his father in a block of time, an immediate move to an equal sharing of holidays would be:
“too much, too soon.”
The Independent Children’s Lawyer proposed that a graduated increase of holiday time would be more appropriate, especially in circumstances where the wife’s reasons for limiting holiday time were not compelling.

Conclusion

This matter comes before the court in the context of a highly conflicted parental relationship, the breakdown of the relationship between the father and his two eldest daughters as a result of his rigid and obsessive approach to parenting and his children’s education, and the need to “fine-tune” the arrangements for the time the parties’ youngest son [Z] spends with his father.
To their credit, the parties were able to agree to engaging in therapeutic intervention in the hope that this would facilitate the repairing of the relationship between the husband and his daughters [X] and [Y].
During the running of the matter, there was some issue as to who should provide that therapeutic intervention and I indicated to the parties that, with the assistance of Mr S the Family Report Writer, I would ascertain what I thought to be the body best qualified to provide that intervention, taking on board the issues involved, the parties’ language and cultural issues, and my being satisfied as to the providers having the requisite professional qualifications.
In this regard, Mr S has made enquiries and I am satisfied that the Project Co-Ordinator of the Vietnamese (Women’s) Family Services (who is currently Ms N) is appropriately qualified to assist this family. To ensure the Service has all necessary information to assist the family, I will order the parties to provide the Project Co-Ordinator with a copy of Mr S’s Family Report and a copy of these Reasons for Judgment.

I have already indicated that I intend to make orders for sole parental responsibility in the wife’s favour. Whilst the Independent Children’s Lawyer did not support such orders being made and raised concerns that such an order may send a message to [X] and [Y] that their father will have no input into their lives whatsoever, I am satisfied that such an order has to be made in their best interests at this time for reasons as set out in the body of the judgment.
I would also note that an order for sole parental responsibility does not mean that the husband does not continue to be responsible for his children or that his commitment to their care is in any way diminished. The only message [X] and [Y] should be given about the orders made by this court is that their father has listened to them and is desperate to have a loving and ongoing relationship with them.
In relation to what orders should be made for [Z] to spend time with his father during the school term, it is apparent that the wife and the children have an active involvement in their church. The existing arrangements, which the husband proposes continue, will allow [Z] to attend church with his mother and sisters on a fortnightly basis and at the same time afford the husband an opportunity to not only pick [Z] up from school but also to take him to school on Monday morning every fortnight. Such an interaction I believe is very important. The husband has also indicated to the court that he will make arrangements for [Z] to attend Mass with his sisters on the Sunday [Z] is with him if [Z] asks to attend and I accept the husband’s evidence in this regard.
In all these circumstances I intend to make orders such that the existing arrangements for [Z] to spend time with his father continue.
In relation to holiday time, I found the wife’s arguments as to why such time should be limited to be less than compelling. However I am also in agreement with the Independent Children’s Lawyer that to immediately move that time to a sharing of those holidays when [Z] has not spent more than two nights in any block of time with his father to be “too much too soon”.
In those circumstances I will make orders that make provision for [Z] to spend holiday time with his father on a graduated basis, such that his holiday time will incrementally increase over the next two years after which time [Z] will be spending half holiday time with his father.
I note the husband was in agreement that in the long summer vacation the children would remain with their mother from 1 to 15 January in each year to enable her to take the children to Sydney on holiday to visit with the maternal extended family. The orders will reflect this agreement.
In relation to changeover, it is apparent that it would be in [Z]’s best interests that changeover take place in a public place where the chance of exposure to his parent’s conflict is limited. It was both parties’ evidence that there had been no overt conflict between them at changeover this year.
In those circumstances I am satisfied that a supervised changeover is not needed at this time. However if the wife feels more safe and secure with that changeover taking place at McDonald’s in [suburb omitted] then it is clearly best for [Z] that changeover occur at that location and I intend to order accordingly.

I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 9 December 2010