Niem & Tong

Case [2020] FamCA 1013

FAMILY COURT OF AUSTRALIA

Niem & Tong [2020] FamCA 1013

File number(s): PAC 3572 of 2014
Judgment of: FOSTER J
Date of judgment: 8 December 2020
Catchwords: FAMILY LAW – CHILDREN – undefended hearing – best interests – where appropriate that the matter proceed on an undefended basis – where consideration of applicable principles – orders made that the mother have sole parental responsibility for the children, that the children live with the mother and no order be made for time with the father.
Legislation:

 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN

Family Law Rules 2004 (Cth) rr 11.02, 16.07

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Goode and Goode (2006) FLC 93-286

Jarrah & Fadel [2014] FamCAFC 14

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Niem & Tong [2016] FamCA 1089

Niem & Tong [2018] FamCA 1072

Number of paragraphs: 119
Date of hearing: 2 October 2020
Place: Parramatta
Counsel for the Applicant: Mr Givney
Solicitor for the Applicant: Maclarens Lawyers
For the Respondent: The Respondent did not attend
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

PAC 3572 of 2014
BETWEEN:

MS NIEM

Applicant
AND:

MR TONG

Respondent

MS WEAVER

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

8 DECEMBER 2020

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for the children:

(a)C (dob … 2005); and

(b)D (dob … 2010).

2.The children referred to in Order 1 shall live with the mother.

3.There shall be no Orders for the father’s time in respect of the children referred to in Order 1.

4.All previous parenting orders be discharged.

Notations:

(A) The court notes that Mr B (dob … 2001) is living with the father and is a child over 18 years of age.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

FOSTER J:

  1. These long running parenting proceedings were commenced by the applicant mother by Initiating Application filed 1 August 2014.  The proceedings initially related to three children, one of whom, Mr B, born in 2001 (“the eldest son”) has now attained the age of 18 and the proceedings now only relate to the younger two children: C born in 2005 (“the middle child”) and D born in 2010 (“the youngest child”).

  2. The father in the proceedings has recently disengaged from the parenting proceedings with the mother’s application being heard on…

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Niem & Tong [2020] FamCA 1013
Case
[2020] FamCA 1013
Decision Date

CaseChat Overview and Summary

The case involved the mother and father of three children, C, D, and an older son, Mr B. The dispute concerned parenting orders, specifically the children's living arrangements and time with each parent. The matter was heard by Foster J in the Family Court of Australia.

The court was required to determine the appropriate parenting orders for the children, considering their best interests. Key issues included whether the matter should proceed on an undefended basis, the allocation of parental responsibility, the children's primary residence, and whether any orders for the father's time with the children should be made. The court also had to consider the impact of recent traumatic events, including a fire at the father's residence and his subsequent hospitalisation, as well as allegations of mental health issues and concerning behaviour from both parents and the eldest child.

Foster J reasoned that the matter was appropriate to proceed on an undefended basis, given the circumstances. The court applied the principles of the best interests of the child, taking into account the evidence presented. This evidence included the mother's concerns about the father's mental health and behaviour, the eldest son's aberrant behaviour and threats, the middle child's expressed wish not to have contact with the father, and the father's own history of psychiatric issues and medication abuse. The court noted the significant improvement in the middle child's school attendance and general well-being since residing with the mother. The father's actions in removing the eldest son from the mother's care without notice were also a significant factor.

The court ordered that the mother have sole parental responsibility for C and D, that the children live with the mother, and that there be no orders for the father's time with them. All previous parenting orders were discharged. The court also noted that the eldest son, Mr B, was over 18 and living with the father.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for the children:

(a) C (dob … 2005); and

(b) D (dob … 2010).

2. The children referred to in Order 1 shall live with the mother.

3. There shall be no Orders for the father’s time in respect of the children referred to in Order 1.

4. All previous parenting orders be discharged.

Notations:

(A) The court notes that Mr B (dob … 2001) is living with the father and is a child over 18 years of age.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

While the father was hospitalised for three months following the fire, the children resided with their mother. After the father came out of hospital the eldest son contacted him seeking to return to his care but the father was unable to provide suitable accommodation for the eldest son until 30 September 2018. At the time of the second interim hearing the eldest son was living with the father, the two younger children were living with the mother and had not seen the father for some time. The evidence before the Court in relation to the parties’ circumstances at the time of the second interim hearing (as set out in the second interim judgment) relevant to these final proceedings included:The mother’s evidence13.Subsequent to interim orders referred to above, the two elder children had continued to live with the father until 28 June 2018.14.On that day the father was seriously injured in a fire that occurred at his residence. The father was admitted to hospital suffering third degree burns. Subsequent to his admission to hospital, the father suffered a heart attack.15.The mother had some reservations as to the father’s mental health prior to the fire and more particularly after the fire.16.Consequently, the older two children moved to reside with the mother and joined the [youngest child] in her home. 17.Subsequent to moving into the mother’s care, the [eldest son] exhibited aberrant behaviour including suicidal ideation. In early July 2018 the mother met with the [eldest son’s] school principal and school counsellor in the context of the child threatening to kill the mother and the [middle child]. The [eldest son] was taken by ambulance to hospital where he was seen by a psychiatrist, not admitted and later permitted to return home with the mother. The [eldest son] was subsequently absent from school for about two months18.Subsequently, the mother has observed a significant change in the behaviours of both the children [the eldest son] and [the middle child] towards her when compared with their behaviour and attitudes when living with the father. The mother has observed that her daughter is now progressing better at school and appears to be happy and content living in the mother’s household. 19.To the mother’s observation the [eldest son] has adopted much of his father’s behavioural traits in being bullying and aggressive towards the mother and his sister.20.As at 20 August 2018 the [eldest son] had not been permitted to return to school although he appears to have had settled into the mother’s household. 21.On 21 August 2018 the [middle child] told the mother that “daddy said he was going to hang himself in front of the house if I don’t live with him”.22.On 20 September 2018 the mother received a text message from the father informing her that he would be discharged from hospital soon and he wished previous arrangements in relation to the children to be resumed. Subsequently, the mother received a communication from the father indicating that his residential address would be at the II Hotel at Suburb JJ.23.The father was discharged from hospital on 20 September 2018 on which date the mother was informed by the father’s solicitor “my client will reassess his position where the children are concerned. Suffice to say, I will provide you with prior written notice of those intentions and I confirm that my client will not take any unilateral actions with the children without first providing you with written notice”. It turns out such was an empty assurance.24.On 29 September the mother returned home to find the father’s car out the front of her property. She returned a short while later to find the car gone but observed that the father’s belongings that were packed at the back of her house had been removed together with the children’s pet cat and dog. This was distressing to the two younger children who were with the mother.25.On 30 September 2018 the [eldest son] told the mother “I’m going to live with dad”. With that she observed the father at the front of the premises and waiting for the child and his belongings. They both then left the property. Subsequently, the mother has had no contact with the [eldest son].The father’s evidence26.The father confirms the circumstances of the fire on 28 June 2018. He sustained burns to about 48 per cent of his body. The father was placed in an induced coma not gaining consciousness again until early July. After intensive treatment over a period of about three months the father was discharged on 20 September 2018.…29.The father is aware of the [eldest son’s] mental health issues with the child having said to him “I made a few comments at school that made some people concerned. They think I’m hearing voices and that I want to kill myself. I did not mean what I said I was just acting out because I was upset over your accident and I am pissed off that we all have to be forced to live with mum now.”…33.He asserts that his collection of the [eldest son] from the mother’s home was as a consequence of the child’s expressed wishes.… The objective documents37.Documents produced on subpoena by CC School attended by the [middle child] reveal that in 2018 whilst in the care of the father until the date of the fire on 28 June 2018 the [middle child] missed 42 mostly whole or partial days of school. Such an attendance record is appalling. After coming into the mother’s care the child has missed one day of school and six partial days.38.Documents produced by the Department of Family and Community Services reveal the engagement of that Department subsequent to the fire. It is readily apparent that some notifications to the Department have been precipitated by the mother, it appears, out of her concern that it was the father who set the fire. That circumstance no longer appears to be the case.The Independent Children’s Lawyer and submissions39.The Independent Children’s Lawyer was of the view that in relation to [the youngest child] that the father should have supervised time. The Independent Children’s Lawyer informed the Court that the [eldest son] was now attending FF Group for therapeutic intervention.40.There are significant historical allegations as to both parents seeking to alienate the children one against the other. Such seems to be the case in relation to the eldest child subsequent to the father’s release from hospital.41.The Independent Children’s Lawyer considered it somewhat problematic in relation to the [middle child] now 13 years of age who does not wish to have contact with the father. It appears that the child has settled well into the mother’s household and is now appropriately attending school.42.Counsel for the mother relied upon the mother’s evidence as to the wishes of the [middle child] and sought that no order be made in relation to her time with the father. Otherwise, the mother remains concerned as to the father’s physical and mental health following the traumatic circumstances of the fire and his hospitalisation. That concern overshadows her view as to the [youngest child] spending unsupervised time with the father. 43.The Single Expert Report of Dr HH dated 5 June 2017 (Exh “C”) is significantly critical of the father, see at [144], [149], [153] in particular the following:The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his deregistration as a medical practitioner …He will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.44.There are significant concerns in circumstances where the [eldest son] had settled reasonably well into the mother’s household but subsequent to ongoing contact with the father, the father manufactured a circumstance with the [eldest son] where he without notice to the mother in effect secreted the [eldest son] back into his full-time care. Subsequently, the [eldest son] has had no contact with the mother. It is readily apparent that the father has again facilitated the child becoming aligned with him.45.Counsel for the father refers to the mother’s evidence at trial where she did not oppose an order that the [youngest child] have regular time with the father. Such a circumstance was, of course, prior to the traumatic events of late June 2018.46.It was, otherwise, conceded by counsel for the father that the express wishes of the [middle child] were a real impasse in relation to making an order in respect of [the middle child] for time with the father.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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