TANG & NGO

[2015] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANG & NGO [2015] FCCA 281

Catchwords:
FAMILY LAW – Parenting Orders – where a 5 year old child with special needs shall live – where there is no trust at all between his parents – where the mother’s case seems to change over time.

Legislation: 

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

Mazorski v Albright (2008) 37 FLR 518

Applicant: MR TANG

Respondent: MS NGO

File Number: MLC 8516 of 2012

Judgment of: Judge Small

Hearing date: 18 September 2014

Date of Last Submission: 18 September 2014

Delivered at: Melbourne

Delivered on: 13 February 2015

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

ORDERS

1. All previous orders in relation to the child X born (omitted) 2010 (“the child”) be and are hereby discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the father.

4. The child shall spend time and communicate with the mother as follows:

   (a)From 9:00am on Sunday to 7:00 pm on Tuesday  each week;

   (b)For no less than three hours on each of the child’s birthday and the mother’s birthday each year by agreement, and failing agreement from after school, kindergarten or child care until 7:00pm if a school day, and from 10:00am to 2:00pm if a weekend day;

   (c)From 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day in odd numbered years and from 4:00 pm on Christmas Day until 4:00 pm on Boxing Day in each even numbered year;

   (d)For the Easter period at times to be agreed and failing agreement:

   (i)From 3:30 pm or after school, kindergarten or child care on the day before Good Friday until noon on Easter Saturday in odd numbered years; and

   (ii)From noon on Easter Saturday until noon on Easter Monday in even numbered years.

   (e)At such other times as may be agreed between the parties from time to time.

5. That until further order each party, The Applicant father MR TANG born (omitted) 1955 (“the father”) and the Respondent mother MS NGO born (omitted) 1987 (“the mother”) and their servants and agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2010 (male) from the Commonwealth of Australia.

6. X be and is hereby restrained from leaving the Commonwealth of Australia.

7. AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s on the Watchlist for a period of two years.

8. Upon expiration of the period referred to in Order 7 above, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.

9. The parties shall keep and maintain a communication book with respect to the child, such book to travel with the child between the parties’ respective places of residence.

10. Both parties shall keep the other advised of their mobile telephone number and notify the other within 24 hours of a change to that number.

11. The mother shall be permitted to liaise with the child’s school, kindergarten or child care centre to obtain at her own expense information about the child’s progress, copies of the child’s reports, newsletters and other documents ordinarily provided to parents.

12. The mother shall be permitted to attend any school, kindergarten or day care or any extracurricular activity to which parents are ordinarily invited, including but not limited to parent-teacher interviews, school concerts, sporting events and the like.

13. The father shall disclose to the mother the names and contact details of all medical practitioners and therapists treating the child, and the mother shall be permitted to liaise with the child’s medical practitioners and other therapists to obtain at her own expense information about the child’s medical care and therapy and to obtain copies of any relevant documents in relation to his medical or other allied treatment.

14. Each party shall notify the other as soon as practicable, and in any case within 24 hours, of any serious illness or injury suffered by the child, and immediately in the event that the child is hospitalised.

15. The parties, their servants and agents are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, or any member of the other’s family, in the presence or hearing of the child, and from allowing him to remain in the presence of any other party engaging in such conduct;

    (b)unreasonably questioning the child about events occurring in the other parent’s home;

    (c)discussing these proceedings in the presence or hearing of the child, and from allowing him to remain in the presence of any other party engaging in such conduct;

    (d)exposing the child to any conflict between the parties or between the parties and any members of the other’s family;

    (e)being under the influence of alcohol (that is having a blood alcohol level of .05 or higher) while the child is in his or her care, or allowing the child to be exposed to any third party who is under the influence of alcohol or any illicit substance; and

    (f)removing the child from the State of Victoria without the express consent of the other parent first obtained in writing.

16. If a party proposes to travel outside the state of Victoria with the child, and he or she has obtained the written consent of the other party, he or she shall provide to the other at least 14 days prior to travel an itinerary, including departure and return dates, destination, accommodation details and contact telephone numbers while X is away.

AND THE COURT NOTES THAT:

A.If after the expiration of the period set out in Order 7 above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 8516 of 2012

MR TANG

Applicant

And

MS NGO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting case involving a young child whose name is X but who is known as X, and that is how I shall refer to him in these reasons.

2. X was born on (omitted) 2010 and is now four years old. He has been diagnosed as suffering from global developmental delay which is being addressed by a variety of medical and other health practitioners.

3. His parents are Mr Tang (“the father” or “Mr Tang”) and Ms Ngo (“the mother” or “Ms Ngo”). Mr Tang’s first language is Cantonese and Ms Ngo’s is Vietnamese. Both require interpreters to conduct legal proceedings in English.

4. X has lived with his father since January 2013, when Mr Tang removed him from his mother’s car while Ms Ngo was inside a shop. The circumstances of that removal are a matter of dispute between the parties.

5. He has spent time with his mother since August 2013 pursuant to various orders made in the course of these proceedings.

6. The issues in this case, simply put, are:

   A.Should X’s parents have equal shared parental responsibility for him?

   B.Should X live predominantly with his father, with his mother, or in a shared care arrangement?

   C.If he lives predominantly with one parent, what time should he spend with the other parent?

Background

1. Mr Tang was born in Vietnam on (omitted) 1955 and is now 59 years old. He migrated to Australia with his family as a refugee in (omitted) 1982.

2. Ms Ngo was born in Vietnam on (omitted) 1987 and is 28 years old. She migrated to Australia in late (omitted) 2008 and became a permanent resident in November 2010.

3. Mr Tang and Ms Ngo met in (omitted) 2005 while Mr Tang was on holiday in Vietnam, and began their relationship.

4. They were married on (omitted) 2006 in (omitted), Vietnam after corresponding by way of telephone and email while Mr Tang organised to sponsor Ms Ngo to migrate to Australia. It was two years before Ms Ngo was able to come to this country.

5. The parties separated in Melbourne in April 2011, although they lived under the same roof until 17 July 2012 when the wife left their shared accommodation with X. X is the only child of their relationship.

6. The parties were divorced on 22 November 2012 upon the Application of the wife filed 9 October 2012. The relevance of that application will become clearer later in these reasons.

7. After separation X lived with his mother and spent no time with his father until 7 January 2013 when Ms Ngo took X with her in her car and went shopping. She says there was another adult in the car at the time. The father says there was no other adult present in the mother’s car on that day and that he removed X because he had been left alone in the car on a hot day.

8. I note that that date is after Mr Tang had issued these proceedings but before Ms Ngo had filed any documents in these proceedings, although she had issued proceedings for divorce.

9. In any event it is common ground that Mr Tang removed X from Ms Ngo’s car without her consent on 7 January 2013 and refused to return him to her. X has lived with Mr Tang ever since. X did not then see his mother for more than six months. The circumstances of that absence from X’s life are in dispute.

10. X lives in (omitted) in a five bedroom house with Mr Tang, two paternal uncles, the wife and child of one of the uncles, and his paternal grandmother. Mr Tang is unemployed, although he has worked as a (omitted) since X’s birth.

11. Ms Ngo lives alone in an apartment in (omitted) and is working part-time as a (omitted).

12. Neither party has repartnered.

Procedural History

1. The father filed an Initiating Application on 18 September 2012 seeking an Interim Order for a Commonwealth Information Order in relation to the mother and the child.

2. He also filed an Application in a Case seeking that X be placed on the Watch List, and restraining the mother from removing him from the Commonwealth of Australia.

3. The time was abridged by a Registrar and proceedings came before Federal Magistrate Bender (as she then was) on 19 September 2012. At the hearing the father was represented by his solicitor and there was no appearance for the mother as she had not been served.

4. Her Honour made an ex parte Interim Order restraining the mother from removing X from the jurisdiction of the Court and placing his name on the Watch List. The matter was then adjourned to 3 December 2012.

5. On 9 October 2012 the mother filed an Application for Divorce which was listed before a Registrar on 24 January 2013. On that day, a Divorce Order was made to come into effect in one months’ time.

6. On 3 December 2012 the matter was before Federal Magistrate Whelan (as she then was) and Her Honour granted the father’s requests for a Commonwealth Information Order in relation to Centrelink’s records about the location of the Mother and X so that his Application could be served.

7. The matter returned on 5 February 2013 with the father represented by his solicitor and the mother appearing in person.  Federal Magistrate Bender ordered the mother to file and serve a Response and Affidavit and adjourned the matter to 17 April 2013.

8. On 12 April 2013 an order was made vacating the hearing on 17 April 2013 so that the parties could take part in Roundtable Dispute Management (“RDM”).

9. On 24 May 2013 the matter came into my docket and was due to be heard on 28 May 2013 in the Duty List.  However, it was further adjourned by consent before that hearing date as RDM had not yet taken place.

10. On 26 August 2013 the mother filed a Response seeking parenting orders for X to live with her and spend time with his father as determined by the Court.

11. On 27 August 2013 the parties appeared before Judge Baumann where His Honour made the following orders:

    1. The parties have equal parental responsibility for X born (omitted) 2010 (“the child”).

    2. The child live with the father.

    3. The child spend time with the mother as follows:

    a. Every Tuesday, Wednesday and Sunday between 9.00am and 5.00pm.

    4. For the purpose of changeover the mother collect the child from the father’s home at the commencement of time spent and return the child to the father’s home at the conclusion of time.

12. The parties were further ordered to attend a s.11F Child Inclusive Conference on 27 September 2013 which was rescheduled to 7 October 2013 after the mother raised concerns about the interpreter not translating what she was saying accurately, alleging that the Interpreter was aligned with the father.

13. On 7 October 2013 the mother failed to attend the rescheduled Conference and it could not take place.

14. The matter returned to Court before me on 16 October 2013 and the parties were ordered to attend another s.11F Conference on 13 December 2013. On that date both parties attended but no agreement was reached. That same day the parties were before the Court for a Mention Hearing.

15. The parties and the child were ordered to attend upon a Family Consultant for the preparation of a full Family Report, and the matter was adjourned for an Interim Hearing on 19 June 2014 and Final Hearing on 18 September 2014. The following interim parenting provisions were also ordered:

    1. The child X born (omitted) 2010 (“the child”) live with the father.

    2. The child spend time and communicate with the mother:

    a. Each Sunday from 9.00am until 5.00pm;

    b. Each Tuesday at 9.00am until Wednesday at 5.00pm.

    3. For the purposes of changeover pursuant to Order 2 herein, the mother collect the child from the father’s residence at the commencement of her time and deliver the child to the father’s residence at the conclusion of such time.

    4. The parties forthwith commence and maintain a communication book with respect to the child X born (omitted) 2010 which book shall travel with the child between the parties’ respective places of residence.

16. The family report of Ms C (“Ms C”) dated 24 March 2014 was released by order of the court on the same day.

17. On 19 June 2014 orders were made in the following terms:

    1. The child X born (omitted) 2010 (“the child”) spend time and communicate with the mother:

    a. Each Sunday at 9.00am until Tuesday at 5.00pm;

    b. At any other times as agreed between the parties in writing.

18. On 18 September 2014 the parties appeared before me for Final Hearing. Both parties were represented at the trial and both filed Trial Affidavits and Outline of Case Documents. The relevance of this will become obvious later in these reasons.

19. However, both parties appeared in person at trial and each was assisted by an interpreter, Mr Tang in Cantonese and Ms Ngo in Vietnamese.

20. The proposal of the father at trial was that X spend time with his mother from 9:00 am on Tuesday until 5:00 pm on Wednesday, or from after day care/kindergarten/school on Tuesday to before kindergarten/ school on Wednesday, and in addition on each Sunday from 9:00 am until 5:00 pm, and at any other time that the parties might agree. He was also content for X to spend time with his mother on X’s birthday, the mother’s birthday, Mother’s Day and Christmas each year.

21. The mother’s proposal was initially that X should live primarily with her, but that if that were not possible then she wished to increase her time with X to an equal shared care arrangement. In any event, she sought more time with X.

22. The trial lasted one day and the parties were the only witnesses. I reserved my decision.

The Issues, the Evidence and the Law

A. Should X’s parents have equal shared parental responsibility for him?

1. The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 61DA states that the court must apply a presumption that it is in a child’s best interests for that child’s parents to equally share parental responsibility for the child. That is, that they should consult and decide together about major issues affecting the child’s life.

3. A major issue includes areas such as education, religion, whether a child can travel overseas, medical treatment and the like.

4. Section 61DA(2) states that the presumption does not apply if the court has reason to believe that either of the parents has engaged in child abuse or family violence.

5. Section 61DA(4) states that if the presumption does apply, it can nevertheless be rebutted by evidence that satisfies the court that it is not in the child’s best interests for his or her parents to share parental responsibility for him or her.

6. Both parties seek an order that they equally share parental responsibility for X.

Family Violence

1. In the affidavit supporting his Initiating Application, which was sworn 14 September 2012 and filed 18 September 2012, Mr Tang alleges that Ms Ngo abused X by hitting him, shoving him and yelling at him. He alleges that Ms Ngo neglected X and that she was generally uninterested in his welfare.

2. In that affidavit he describes finding lumps on X’s head but says he does not know whether they were the result of the mother’s “violent behaviour towards the child”. He also deposes as follows:

   On one occasion I heard a big bang and then the child started crying. I went into the bedroom to see what he was (sic), the child was on the floor next to the bed and the mother was in bed doing her nails. She did not express any concern about the child being upset nor did she get up to see if he was alright (sic). I do not know if the mother pushed the child off the bed or if he fell.

3. He further deposes that the mother neglected the child by failing to attend to him when he was ill. He claimed that it was always he, Mr Tang, who took X to the doctor and the chemist in order to obtain treatment when he was ill.

4. In his second affidavit sworn 16 June 2014 Mr Tang alleges that X had returned to him after spending time with Ms Ngo with a bruise on his face for which the mother had no explanation.

5. In his final affidavit sworn 27 August 2014 Mr Tang says that Ms Ngo gives X food (identified at trial as seafood, milk and eggs) which does not agree with him and that he returns to Mr Tang on occasion with vomiting and diarrhoea. He says he has attempted to address this issue with Ms Ngo to no avail.

6. Ms Ngo vociferously denies that she has ever been violent towards X or that she has neglected his care.

7. It is her evidence[1] that once the parties lived in their own home Mr Tang began to drink heavily and that when he was drunk he would “bring up previous arguments with me and start picking on me about things”. She says that when she was pregnant with X, Mr Tang told her that he wanted her to abort the pregnancy, and that he had told his friends details about their sex life.

   [1] Affidavit of Ms Ngo sworn 23 August 2013 and filed 26 August 2013 paragraph 9

8. She further alleges that Mr Tang would “buy nice and expensive food for his friends, but would refuse to give me money to buy good and healthy foods for me even while I was pregnant”.

9. It is her evidence that Mr Tang would come home drunk and talk very loudly so as to wake X up so that he could hold him. He would also often bring friends home with him and demand that she should serve those friends food and drink.

10. Ms Ngo deposes that when she decided to leave the relationship in April 2011 Mr Tang would not allow her to leave the house and told her that he would kill her if she left with X. She says that Mr Tang told her that he would “buy a gun and shoot me. He also told me that he wanted to keep (X) so that I could not leave him”.

1. Between April 2011 and July 2012, when Ms Ngo left the house with X, she deposes that Mr Tang came home drunk on several occasions demanding that she have intercourse with him. It is her evidence that on at least one of those occasions he became very angry and forced her to have sex with him. On other occasions she “agreed to have sex with him so that he would not force me or cause extra trouble as I did not want to wake my son up”. She says that it was because of Mr Tang’s abuse of her, both verbal and sexual, that she finally left the home she shared with him on 17 July 2012.

2. It is Ms Ngo’s further evidence that she only stayed in the marriage for as long as she did because “I did not speak English and had no knowledge of where to go or what to do, and I was worried the father would also follow through on his threats to kill me”.

3. I note that Ms Ngo told Ms C that “although he had never physically abused her, he had “swiped his neck with his hands” and she interpreted that gesture as his wanting her dead”.

4. Ms Ngo deposes the following in relation to 17 July 2012:

   That night the father came home about 11 PM and we started having a fight almost straight away. He said he loved me, and that we should have another baby together and that he wanted me to stay with him. I said we were already separated and that I didn’t want to live there anymore. I told him that I had loved him when I first came here but that I didn’t anymore. I said I already had given him so many chances but it never changes and that I did not think he would ever change. Then the father started drinking and began to threaten me, telling me he was going to kill (X) and I (sic) if I left. The father started yelling at me and he kept waking (X) up, and (X) was getting scared. I started to become frightened, and I knew that I needed to get myself and (X) out of the house. I was so scared that he was going to kill us but I managed to get to the kitchen to get the home phone and go outside to call the police. Every time I tried to get outside to use the phone the father kept following me and I was terrified he had a knife, he kept grabbing me and pulling me inside. I had to call the police three times before I could get through, and after I called the police the last and final time the father came out and grabbed me behind the back of my neck and said he could kill me as easily as killing a fly.

5. The mother responds to the father’s allegations in relation to X showing bruising on his face after spending time with her in her final affidavit sworn and filed on 20 August 2014. She says she does not recall X having a bruise on his face after spending time with her, but that X sometimes has small bruises on his face or body when he returns from the father’s care. She says she has never requested an explanation about those bruises because “I understand the children usually incur small scratches and bruises from playing, and X is a very active and playful child”.

6. Under cross-examination at trial Mr Tang was asked why he thought the police had attended at his home in the early hours of the morning on 18 July 2012. His responses indicated that he was confused as to that issue and did not understand why the police were there. He said that he would like to know why Ms Ngo had called the police at that time.

7. He also denied that he had insisted that Ms Ngo have an abortion when she was pregnant with X saying that “I have been waiting for a child for several decades. Even X – even our first child is not a boy, even if it were a girl, I would also treasure the girl.”

8. He specifically denied the mother’s allegations that he forced her to have intercourse with him at any time.

9. It was Mr Tang’s evidence that he had thought himself lucky to have found a partner in his 50s but that he now believed that she had “made use of our marriage to get permanent residency in Australia”.

10. He said that if Ms Ngo had told him that she was tired of him because of his age he would have allowed her to leave “easily”. He said further: “there would have been no need for her to go into so much troubles (sic) to fabricate all these matters to take X away.”

11. Under further cross-examination however, he conceded that he had been charged with the offence of drink-driving on six occasions. He had lost his licence many times, the last time being for 30 months.

12. In response to the suggestion that six charges was significant he said:

    Yes, because when I am upset then I would drink. On the day my wife left me I had drink alcohol excessively again (sic) because I was so upset. I even wanted to commit suicide on that day.

13. He denied that he had ever driven in the past with X in the car after he had been drinking.

14. Further it was his evidence that he had not consumed alcohol at all since 5 March 2012, when he was last caught drink-driving. Moreover, he said that he had only been drinking on that day at a celebration of the birth of a friend’s child and that before that day he had not consumed alcohol for six years except for when Ms Ngo left the relationship.

15. Six convictions for drink-driving indicate a level of alcohol consumption that is significant and of long standing.

16. In addition, in contrast to his sworn evidence, Mr Tang told Ms C on 17 March 2014 that “he now only occasionally drinks alcohol”.

17. On the basis of all that evidence I find on balance that despite his denials at trial, Mr Tang did drink alcohol to excess during the relationship and that it is more probable than not that his behaviour when he had been drinking was aggressive and abusive toward Ms Ngo.

18. The court therefore has reason to believe that one of the parties has engaged in family violence and therefore, pursuant to s.61DA(2), the presumption of equal shared parental responsibility does not apply.

19. I will deal with the allegations about the mother’s abuse of the child later in these reasons as it is not necessary to make a finding in relation to that in order to decide whether the presumption applies.

20. However, the fact that the presumption does not apply does not mean that it is not appropriate to make an order that X’s parents have equal shared parental responsibility for him.

21. Ms C says the following in relation to that issue:

    37. Mr Tang is requesting that the court allow him to have sole responsibility of X. Sole responsibility eliminates any decision making of one parent in the long term decisions for that child in areas such as health, education, culture et cetera. Clearly there are matters become before the court which require such a decision, for example where there are issues of violence. Another reason sole responsibility may be granted is if there is intractable and persistent conflict between the parents which threatens to impact on a child’s well-being. In the consultant’s opinion such situations are not apparent in this case. Both parents should be involved with long-term decision-making to X, and with appropriate and purposeful counselling this appears to be an achievable outcome for them.

22. In those circumstances, and where both parents seek such an order, I consider that it is in X’s best interests for his parents to share responsibility for him equally.

B. Should X live predominantly with his father, with his mother, or in a shared care arrangement?

1. Mr Tang says that X should live with him, and spend limited time with Ms Ngo. He does not trust Ms Ngo and believes her capable of dishonest and mischievous behaviour.  He believes that X is at risk of abuse and neglect in her care.

2. I have set out Mr Tang’s allegations about that alleged abuse and neglect in paragraphs 47 to 51 above and will not repeat them here.

3. I have also set out in Ms Ngo’s denials that she was ever abusive towards or neglectful of X.

4. I note that there is no independent evidence, such as medical records or third-party affidavit evidence, in relation to these allegations and it is therefore difficult to make findings about them.

5. However, Mr Tang’s description of X lying on the floor crying while his mother sat in bed attending to her nails has a ring of truth about it.

6. Ms Ngo came to Australia as the young wife of a man she had not spent much time with and found herself living with him and their son in a foreign country where she did not speak the language in circumstances where she had very little autonomy, at least in the financial sense. She was very young, and it would not be surprising if she had felt a little overwhelmed by those circumstances.

7. While there is no objective evidence in relation to any abuse alleged to have been perpetrated upon X by his mother, there are some aspects of her behaviour in her own evidence which lead me to find that she may not have been as interested in X’s development and in being a mother as she has led the court to believe.

8. For instance, X was removed from her care against her wishes on 7 January 2013. Apart from seeking the help of the police on that day, she apparently made no attempt to retrieve him other than by asking Mr Tang to return him, until she filed her Response in these proceedings on 28 August 2013. In her affidavit material she explains that lack of action as follows:

   I was incredibly unhappy about the arrangements for (X), but it did not occur to me that there were legal remedies to assist me in recovering (X) until some months later when I spoke to my solicitor about the situation in detail where I was advised about recovery application (sic), but by the time I received this advice too many months had passed.

   There was also a delay in obtaining funding from Victoria Legal Aid to appear before the court and I could only obtain funding to go through their Roundtable Dispute Management service.

9. I note that Ms Ngo filed an Application for Divorce through her solicitor on 9 October 2012, only three months before X was removed from her care. In s.28 of that application the mother states simply: “The child resides with the wife. The husband does not see the child.”

10. It is almost inconceivable that a family lawyer taking instructions in relation to a divorce would not have given advice about the availability of parenting orders. I note that the solicitor who witnessed Ms Ngo’s affidavit has a name which indicates that she is of Vietnamese origin or heritage. It is therefore unlikely that there were language difficulties between her and Ms Ngo.

11. I am therefore sceptical about Ms Ngo’s claim that it did not occur to her to seek the assistance of her solicitor when Mr Tang removed X from her care less than three months after the divorce application was filed and only 17 days before the divorce hearing.

12. That indicates a certain laissez-faire approach to X’s care at the time, and while Ms Ngo has been consistent in her attempts to have X returned to her care and to spend more time with him during the course of these proceedings, she told Ms C that if X were to continue to live with his father, she was “prepared to maintain X’s overnight time with her on Tuesday nights, but not increase it”.

13. On 13 August 2014, Ms Ngo filed an Amended Response which sought a Final Order that X live with the father and spend time with her from 9:00 am on Sunday to 5:30 pm on Wednesday each week. I note that she was represented at the time she filed that document.

14. At trial, her position was somewhat equivocal. On the one hand she appeared to want X to live with her, and on the other she seemed content for him to live with his father and spend time with her. It was very difficult to obtain a clear idea of her proposals in relation to X’s care.

The issue of what happened on 7 January 2013

1. The parties are in dispute about the circumstances under which X returned to his father’s care on 7 January 2013.

2. It is Mr Tang’s sworn evidence that he serendipitously found X alone in his mother’s car at a shopping centre on that day, which, says Mr Tang, was a hot summer day. He says that he took X into his care because he was concerned that Ms Ngo had left X alone in the car in the heat.

3. He told Ms C that X was locked in the car, that he was “red and hot and crying without noise” and that he had been forced to “break into the car and remove the child”.

4. It was Mr Tang’s evidence both on affidavit and at trial that he had taken X to a doctor at the “(omitted) Family Clinic” later on the same day to ensure that he was not suffering from heat exposure.

5. Were Mr Tang’s evidence to be found to be true, the Court too would be very concerned about Ms Ngo’s parenting.

6. Ms Ngo’s sworn evidence is that she had taken X with her when she went shopping on that day and that a friend of hers, Mr V (“Mr V”), was in the car with them. She says that Mr V came into the shop where she was at the time and told her that Mr Tang had simply removed X from her car and driven away. She says that she and Mr V attempted to follow him but were unable to find him.

7. Ms C relates the following in relation to the mother’s version of the events of 7 January 2013:

   The mother claimed that although the temperature that day rose to 36° C, it was cooler in the morning when the incident occurred, and she had left X with a friend with whom X was familiar.

8. In support of her evidence about that day, Ms Ngo filed an affidavit sworn by Mr V on 20 August 2014. Mr V deposes that Ms Ngo had asked him to drive her and X to the shops that day because “X was a very active little boy at the time and would wriggle out of his seat belt so the mother wanted someone to drive her so she could sit with X and make sure he stayed in his car seat”.

9. Mr V says that he remained in the driver’s seat while Ms Ngo went to a bakery leaving X in in the back seat in his child restraint. He says that a man came up to the car and opened the passenger side back door, reached in and unbuckled X from his car seat. He says that he asked the man who he was and the man said that he was X’s father. By the time Mr V was able to get out of the car the man had already taken X and had started to “run away” with him.

10. Mr V says he then found the mother and told her what had happened, and that he and Ms Ngo spent about two hours “running around the (omitted) shops trying to find the father and X”.

11. At trial the father denied that there had been anybody in the car when he removed X on that day. He said he does not know Mr V and has never met him.

12. Mr V had not been called to give evidence at trial, nor had he been advised that he was required for cross-examination.

13. In those circumstances, his sworn evidence, as set out in his affidavit, is the only independent evidence before the court about the incident and that evidence is untested.

14. In usual circumstances I would infer under the rule in Browne v Dunn that Mr Tang did not wish to challenge that evidence and therefore would accept it.

15. However in these circumstances, where Mr Tang challenges the evidence but is unable to test it because the solicitor who represented him up until the trial date did not call Mr V to give oral evidence and be cross-examined, it is difficult to make a finding as to whether Mr V was in the car on 7 January 2013 or whether Ms Ngo had left X alone in the car.

16. In some proceedings that would create a particular difficulty for the Court in making orders that are in X’s best interests, but given later evidence as to Ms Ngo’s availability to care for X, it is not necessary for me to make such a finding here.

The family report

1. Ms C conducted interviews in preparation for her family report on 17 March 2014 and it was released a week later.

2. Ms C notes that the parties were assisted by interpreters during those interviews.

3. The family report sets out the parties’ versions of events and contains some implied criticism of Ms Ngo’s level of commitment to caring for X on a full-time basis.

4. Ms C also states that Ms Ngo “experienced significant difficulty recalling dates and times of past events. This could have been because of the anxiety she was experiencing on the day, or because she was feeling unwell, or because, as she explained, she did not realise that recalling dates and times as important.”

5. Ms Ngo told Ms C that she did not believe that X had been intellectually delayed before he had lived with his father, and indeed said that she did not believe that X has a disability. She also told Ms C that she believed that Mr Tang had contributed to X’s developmental issues by “exposing him to too many languages”[2].

   [2] I note that in her later affidavit material that Ms Ngo clearly now accepts that X suffers from global developmental delay and wishes to be involved with his treatment.

6. Ms C records that Ms Ngo appeared to be somewhat confused about what she actually wanted in relation to X’s care. On the one hand she wanted X to live with her and spend very limited time with Mr Tang, but on the other she said that if X were to remain living with his father, it would not be possible for her to extend the time when X would be in her care. She did not give any reason for that position.

7. It appears from the family report that Ms Ngo gave very little detail about her current working circumstances or about her future plans for employment. She acknowledged that she had not been attending X’s medical and associated appointments but did not give any reason for that absence either.

8. Ms C records that Mr Tang presented as “an anxious but communicative man” and that he had said that he was a (occupation omitted) by trade but that he had left his employment in order to care for X full time and to ensure that X attended his therapist’s appointments.

9. I note in that regard that Mr Tang’s sworn evidence was that he had been unemployed throughout the relationship, but that it was Ms Ngo’s evidence that he had worked in a (employer omitted) during the marriage.

10. He emphasised to Ms C that Ms Ngo was not interested in X, that she had refused to care for X when he was ill, and that she had made no effort to feed him during the night or comfort him when he was hurt.

11. In observing X in the company of each of his parents, Ms C records that while X vocalised, neither she nor his parents could understand what he had said.

12. Nevertheless, he sought the company of both parents and appeared to enjoy their company equally.

13. Significantly, Ms C notes that X “climbed along the back of the couch and threw himself on the floor and it was not difficult to understand how he might sustain minor injuries”.

14. In that context, and in light of the father’s allegations that the mother abuses X, Ms C states later:

    30. Mr Tang alleged that in the past the mother physically and emotionally abused X. Whilst stopping short of stating that he witnessed such incidents, he claimed that recently X returned from his mother’s house with bruises, and prior to separation he witnessed for himself her lack of concern when X hurt himself.

    31. It is not possible to establish whether or not X’s mother intentionally caused any of X’s injuries, and Mr Tang’s concern for X’s well-being is completely understandable. However, Mr Tang is in constant contact with (omitted) Medical Clinic, and he has shown some minor injuries which X has sustained to the family doctor. There have been no reports made to authorities. X appeared to the Consultant to be a child who regularly engages in risk-taking behaviours and activities, and in doing so he probably places himself at risk of minor injury.

15. Ms C had attempted to speak with X’s therapists for the purposes of her report but had been advised that this would not be possible because of privacy concerns, despite the fact that both parents had signed consent forms for her to do so.

16. It is clear that X is a child with special needs. He has a number of food allergies, he still wears nappies both during the day and overnight, still drinks from a bottle and is non-verbal. It is vital that his needs continue to be addressed with both parents cooperating with X’s treating practitioners and specialists.

17. In her evaluation, Ms C notes that X has experienced “an inordinate number of changes in his young life”, first living with both parents until separation, then with his mother when he did not see his father for six months, and then with his father when he did not see his mother for about the same period.

1. She notes the difficulties X must face in living with his father, whose quite large household speaks mainly Cantonese, and then with his mother, who lives alone and speaks Vietnamese. Ms C says: “This would be a challenging situation for any little boy let alone a child with a Global Developmental Delay”.

2. Ms C notes that Ms Ngo lives alone and has limited support in caring for X should he live with her. Ms C says:

   36. Perhaps in the future, when the parents ability to communicate and share information in respect of their son is established, X’s time with his parents can reflect a more equal arrangement, and, as time passes and Mr Tang ages, this might be an issue which needs to be further addressed. Nevertheless at the present time it seemed to the consultant that X’s needs would best be met by his continuing to live with his father, and spending time with his mother on a regular basis.

The Law

1. Section 60B of the Act sets out the objects of this Part and the principles underlying it and I will set out the relevant sections of those objects and principles for the benefit of the parties:

   Section 60B(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 and 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.

   Section 60B(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 communicating the bank 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).

2. Section 60CA states that in making any parenting order, the court must make the child’s best interests its paramount consideration.

3. Section 60CC sets out the factors the court must take into account when deciding what orders would be in a child’s best interests, and I will return to s.60CC shortly.

4. Section 65DAA of the Act states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for a child, the court must consider whether spending equal time with each parent, or substantial and significant time with each parent, would be in the best interests of the child and whether it would be reasonably practicable for the child to do so.

5. Section 65DAA(1) requires the court to consider not only whether it is in a child’s best interests to live in an equal shared care arrangement but whether it is “reasonably practicable” for the child to do so. Only if both of those questions are answered in the positive must the court consider making an order for equal shared care.

6. Having decided the issue of primary care, s.65DAA(2) then requires the court to consider whether a child should spend “substantial and significant time” with the non-residential parent.

7. “Substantial and significant time” is defined in s.65DAA(3) as:

   ·time that includes both weekend and holiday time and non-weekend and holiday time;

   ·time which allows a parent to be involved in a child’s daily routine and occasions and events which are significant to the child;

   ·time which allows child to be involved in occasions and events which are significant to the parent.

8. Section 65DAA(4) makes it clear that these considerations do not limit the court in the matters to which it can have regard when deciding whether a proposed order would mean that the child spends substantial and significant time with the parent.

9. I turn now to the matters a court must consider in determining what is in a child’s best interest as set out in s.60CC of the Act.

10. There are two “primary considerations” set out in s.60CC(2) and fourteen “additional considerations” set out in s.60CC(3).

11. I will address those considerations in turn.

12. Section 60CC(2)(a) states that the first consideration the Court must look at is the benefit to a child of having a meaningful relationship with both of the child’s parents.

13. Section 60CC(2)(b) states that the second “primary consideration” is the need to protect a child from physical or psychological harm as a result of abuse, neglect, or being exposed to family violence.

14. Where it might be said that those two considerations conflict, s.60CC(2A) makes clear that the need to protect a child takes precedence over the benefit to a child in having a meaningful relationship with both parents.

Section 60CC(2)(a) – the benefit of a meaningful relationship

1. A “meaningful relationship” has been held to mean:

   … a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.[3]

   [3] Brown J in Mazorski v Albright (2008) 37 FLR 518

2. Apart from the evidence of conflict between the parents in this case, there is nothing in the evidence before me which would lead to a conclusion that X has anything but a “meaningful relationship” with both his parents and indeed, Ms C describes relationships with both parents that would fall under that definition.

Section 60CC(2)(b) – the need to protect a child from harm

1. As I have already stated, X is a child with special needs, and he is therefore especially in need of protection from harm.

2. Mr Tang alleges that Ms Ngo has abused X. However, Ms C notes that X is prone to physically throwing himself about, and that it would not be unusual for him to sustain minor bruising in those circumstances.

3. In circumstances where Ms Ngo is vociferous in her denials of ever having abused X, I am unable to find that X is at risk of physical abuse from either of his parents.

4. The family violence I have found to have occurred during the relationship has apparently not been repeated in its aftermath. There is evidence before the court that the parties are able to communicate in relation to X’s needs, albeit with some difficulty at times, and as far as the court is aware there is currently no risk to X’s safety from being exposed to family violence.

Section 60CC(3) - additional considerations

1. The additional considerations are as follows:

   (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.

2. X is only four years old and has global developmental delay. He is non-verbal and thus his views are unable to be ascertained. However, even if they were, his age and developmental delay would mean that the court would give them little weight.

   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);

3. Ms C’s observation of X with both parents indicates that he has a close relationship with both his mother and his father and that X sought both parents out during her observation session with them.

4. X currently lives with his father, his paternal grandparents and members of his father’s family and there is nothing in the evidence to indicate that his relationship with those family members is other than appropriately close and caring. There is some evidence of tension between the mother and the paternal family.

   Section 60CC(3) (c) the extent to which each of the child’s parents 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.

5. Immediately after separation there was a six month period when Mr Tang did not have any contact with Ms Ngo, and during that period he did not spend any time with X at all. It was his evidence that he did not know where Ms Ngo was living and that he had been therefore prevented from having any part in X’s life.

6. Since he removed X from Ms Ngo’s care in January 2013 however, the evidence before the court is that Mr Tang has taken every opportunity to care for X, to make decisions about the treatment of his special needs and his education, and to provide for him.

7. However, the evidence is that for the six months after X came to live with him, Ms Ngo spent no time with X until orders were made in this court in mid-2013.

8. At the time when X was living with her and not spending time with his father, there is evidence that Ms Ngo was unaware of X’s developmental delay, and indeed did not believe that he suffered from any disabling condition.

9. Since she has been spending time with X, while Ms Ngo has accepted that X does have special needs, she has made little attempt to participate in appointments X has had with his various medical practitioners and therapists.

10. I have also discussed the fact that Ms Ngo made no attempt to see X in the months after he went to live with his father.

11. In addition, she has not always spent time with X pursuant to court orders, and her statements to Ms C that she did not want to extend her time with X, leads the court to believe that she has not “taken every opportunity” either to make decisions about X’s long term care welfare and development or to spend time with him other than on a fairly limited basis.

    Section 60CC(3) (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

12. Both parents obviously support and maintain X while he is with them. There is no evidence before the court that either party is in any way negligent in his or her obligation to provide for X in the financial sense, although there is also no evidence in relation to child support.

    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;

13. X has now lived with his father and members of his extended paternal family for a little over two years.

14. It is Ms C’s view that X has had so much upheaval in his short life that he should remain living in that household at the current time.

15. That of course means that he will spend less time with his mother than if he were living with her on a full-time basis, but there is no evidence before the court that a continuation of his current living arrangements would have a negative impact on him in that regard.

    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;

16. The parties live within a short distance of each other and there appears to be no practical difficulty or expense which would affect X’s right to maintain his relationships and contact with both 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;

17. Mr Tang is clearly able to meet X’s material needs and he has taken particular care to ensure that X special needs are met to the best of his ability.

18. His animosity towards Ms Ngo however, if it is conveyed to X, is likely to impact on X’s emotional development and his future ability to form relationships himself.

19. There is no evidence before the court about the capacity of any other member of X’s household to provide for X’s needs.

20. When X was living with Ms Ngo she did not seek assistance for his developmental needs of which she was apparently unaware. Even since she has accepted that X does have special needs, she has made little effort to participate in his therapeutic routine.

21. There is no evidence before the court however that she is unable to provide for his material needs or his emotional needs.

22. One thing that is very clear in this case is that both parents love X dearly and want only what is best for him.

    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;

23. I have already mentioned that there is an almost 30 year age gap between X’s parents, and as Ms C has noted, X’s circumstances may need to change as his father ages.

24. While both parties are Vietnamese by birth, they have different cultural and ethnic backgrounds, with Mr Tang’s family speaking Cantonese (although Mr Tang also speaks Vietnamese and some English) and Ms Ngo speaking Vietnamese and some English.

25. It is unclear whether X’s speech delay is due entirely to his developmental delay, or whether the fact that his parents speak different languages, those languages being different again to that spoken in the community in which he lives, has contributed to his speech difficulties, as is alleged by Ms Ngo.

26. In any event, Mr Tang has enrolled X in day care in order to improve his socialisation skills, and the evidence before the court is that he responds to suggestions that might improve X’s life in a positive and active way.

27. Of course X’s global developmental delay is a “characteristic of the child” that is a very important factor in these proceedings.

    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;

28. This consideration is not relevant in this case.

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

29. As already discussed, the court has some concerns about both parents’ lack of action in ensuring that their relationships with X continued when X was living with the other parent, although the court is less critical of Mr Tang in that regard as he instituted proceedings during the time when he was not seeing X.

30. However, that lack of action reflects on their attitudes both to X and to their responsibilities as parents.

    Section 60CC(3) (j) any family violence involving the child or a member of the child's family;

31. I have already discussed the issue of family violence in considering the courts obligations under s.61DA and I do not intend to repeat that discussion here.

    Section 60CC(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;

32. There do not appear to be any current Intervention Orders in this case and it is unclear whether an Intervention Order was sought by Ms Ngo at the time of separation.

    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;

33. X is only four years old and suffers from significant global developmental delay. His father, with whom he lives, will turn 60 this year while his mother is in her late twenties. The combination of those facts means that it is likely that X’s living circumstances may need to change as he grows.

34. Nevertheless, the orders I propose to make in relation to X’s care will provide him with security and stability in the short to medium term, and are therefore unlikely to lead to further proceedings, if any, until he is much older.

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

35. There is no other fact or circumstance that the court believes is relevant to its decision in relation to X’s day-to-day living arrangements.

36. However, I will make a further Watch List Order in relation to X as the order made 19 September 2012 has now expired and in circumstances of conflict between the parents I believe it is in X’s best interests that neither remove him from the Commonwealth of Australia without court order.

37. I will make a similar order, as sought by the mother, that neither party remove X from the state of Victoria without the written consent of the other.

38. In all of those circumstances, I find that it is in X’s best interests to remain living with his father and to spend substantial and significant time with his mother and I will make Orders to that effect.

Conclusion

1. It is to be hoped that X can grow up having his material, emotional and developmental needs met, and enjoying the cultures of both his parents and that of the community in which he lives.

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  13 February 2015